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OF 

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OF  CALIFORNIA 

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THE 


AMEEICAN  LAW 


REAL  PROPERTY. 


CHRISTOPPIER  G.  TIEDEMAN, 

Author  ob^  "  Limitations  of  Police  Power."  "  Sales,"  "  Com- 
mercial Paper,"  etc.,  and  Late  Professor  of  the  Law 
OF  Real  Property  in  the  University  cf  the 
(  ■.>.•    t,       ,   City  of  New  York., 


i'-frii^vv*:: 


REVISED   AND   ENLARGED   BY 

EDW.  J.  WHITE, 

author  of   "mines   AND   MINING    REMEDIES,"   ETC. 


THIRD  EDITION. 


ST.  LOUTS: 

THE  F.  H.  THOMAS  LAW  BOOK  CO. 

1906. 


T 
THoSr 


Entered  according  to  Act  of  Congress  in  the  year  190ti,  by 

HELEN  S.  TIEDEMAN, 
In  the  OflSce  of  the  Librarian  of  Congress  at  Washingtoa. 


u. 


PREFACE  TO  FIRST  EDITION 


In  presenting  to  the  profession  a  new  work  on  the  Amer- 
ican Law  of  Real  Property,  the  author  does  not  deem  an 
apology  necessary,  although  it  may  be  appropriate  to  state 
briefly  his  object  and  the  scope  of  the  work.  The  experi- 
ence of  the  author,  both  as  a  student  and  as  an  instructor 
in  this  branch  of  the  law,  has  led  him  to  believe  that  students 
of  the  law  generally  look  upon  the  law  of  Real  Property 
as  extremely  technical,  arbitrary  and  unreasonable.  Believ- 
ing that  all  law  is  founded  upon  reason,  and  is  developed 
by  forces,  which  are  not  produced  or  even  controlled  by 
the  arbitrary  will  of  the  legislator,  and  feeling  confident 
that  a  logical  or  historical  reason  could  be  found  for  every 
principle  of  the  law  of  Real  Property,  the  author  has  made 
that  subject  the  object  of  his  special  study,  and  this  volume 
is  given  to  the  profession  as  the  result  of  his  investigations, 
with  the  hope  that  it  might  aid  in  stripping  this  branch  of 
the  law  of  its  harsh  and  uninviting  dress. 

In  one  sense,  this  book  cannot  be  considered  exhaustive, 
for  volumes  can  be  written  on  the  subject  without  exhaust- 
ing it.  But  it  is  thought  that,  in  another  sense,  the  book 
may  be  considered  as  reasonably  exhaustive,  in  that  it  con- 
tains the  enunciation  of  all  those  principles  which  are  neces- 
sary to  a  broad  and  comprehensive  knowledge  of  the  subject. 
Instead  of  filling  these  pages  with  numerous  citations  of 
the  facts  of  particular  cases,  and  leaving  to  the  student  the 
discovery  of  the  general  principles,  which  underlie  the  cases, 

(iii) 


67iS!06 


IV  PREFACE. 

these  principles  are  presented  in  a  logical  and  systematic 
order,  with  a  statement  of  the  rational  or  historical  source 
of  each,  while  copious  references  to  decided  cases  and  stand- 
ard treatises  will  enable  the  student  to  pursue  his  investiga- 
tions into  all  the  ramifications  of  the  subject.  It  is  hoped 
that  this  plan  of  treatment  will  give  to  the  work  a  peculiar 
value  as  a  text-book  for  students,  while  it  will  furnish  to 
practitioners  a  book  of  ready  reference. 

Free  use  has  been  made  of  the  researches  of  other  writers, 
and  references  to  their  works  will  be  found  on  almost  every 
page;  but  the  author  considers  it  necessary  to  make  a  special 
acknowledgment  of  his  iudebtedness  to  the  treatises  of  Mr. 
Williams  and  Professor  Washburn  for  the  valuable  assistance 
which  he  has  derived  from  them.  - 

In' commending  this  work  to  the  favorable  consideration 
of  an  enlightened  profession,  the  author  trusts  that  it  will 
not"  b6  adjudged  to  be  without  merit.        . 

■  ' C.  G.  T. . 

Vniversittj  of  the  State  of  Missouri,  Law  Department.       ..  :. 
^  November  1st,  1883; 


PREFACE  TO  SECOND  EDITION 


The  author  desires  in  the  issue  of  this  second  edition  to 
manifest  his  appreciation  of  the  good  will  of  the  profession 
towards  his  literary  efforts  in  general,  and  particularly 
toward  the  first  edition  of  this  book  during  the  nine  years 
of  its  existence,  by  making  important  additions  to  both  tex+ 
and  references,  and  thereby  materially  increasing  the  value 
of  the  book.  The  entire  text  has  been  carefully  revised  and 
additions  made  whenever  they  have  been  deemed  necessary 
and  possible,  without  affecting  its  value  as  a  concise  and 
compact  statement  of  the  fundamental  principles  of  the  law 
of  real  property.  Very  many  new  cases  have  been  cited  in 
support  of  the  propositions  of  law  throughout  the  ramifica- 
tions of  the  subject ;  and  almost  all  of  the  cases  which  have 
been  decided  by  the  American  Courts  of  last  resort  in  the 
intervening  years  have  been  cited,  which  involve  the  discussion 
of  questions  of  law  in  relation  to  the  limitations  of  estates 
by  deed  or  by  will  and  the  rights  of  parties  therein.  It  would 
have  been  impossible  to  have  cited  all  the  new  cases  relating 
to  every  subject  discussed  and  contained  in  this  book  without 
making  the  new  edition  too  cumbersome :  and  for  this  reason 
the  new  citations  in  the  other  branches  of  the  subject, — 
which  are  discussed  in  detail  in  other  works, —  have  been 
limited  to  those  eases  which  involve  material  modifications  of 
existing  laws.  Cases  which  simply  confirm  points  of  law 
already  settled  and  determined  have  not  in  these  instances 

(V) 


VI  PREFACE. 

been  added  to  the  notes.  After  all  it  is  questionable  whether 
the  unlimited  citation  of  cases  in  any  case  adds  materially 
to  the  value  of  an  elementary  text-book,  however  necessary 
it  may  be  to  a  digest  of  adjudicated  cases. 

C.  G.  T. 
University  of  the  City  of  New  York, 
July  1,  1892. 


PREFACE  TO  THIRD  EDITION 


As  a  student  under  the  learned  author  of  this  work,  who 
so  thoroughly  understood  the  subject  of  these  pages  and  con- 
tributed, both  through  the  medium  of  this  book  and  by  his 
life's  work,  to  the  scientific  treatment  and  elucidation  of  this 
branch  of  the  law,  the  editor  of  this  edition  long  since  learned 
to  respect  the  distinguished  ability  of  the  author  and  his 
systematic  treatment  of  the  principles  of  the  law  of  real 
property. 

The  fact  that  his  work  has  been  generally  regarded  by  th(> 
bench  and  bar  as  a  recognized  authority  upon  the  law  of 
real  property,  since  its  appearance,  and  that  it  has  been  so 
extensively  used  as  an  elementary  text-book,  is  sufficient  evi- 
dence of  the  merit  of  the  work.  These  considerations 
prompted  the  editor  of  this  edition  to  make  but  few  altera- 
tions in  the  text. 

The  small  space  devoted,  in  the  previous  editions,  to  the 
subject  of  Fixtures,  and  the  absence  of  a  discussion  of  the 

more  recent  legislation  in  the  United  States  upon  Title  Regis- 

» 

tration,  and  the  relative  importance  of  these  subjects,  sug- 
gested to  the  publisher  the  advisability  of  a  separate  treat- 
ment of  these  titles.  This  is  the  basis  of  the  editor's  apology 
to  the  profession  for  the  two  additional  chapters  added  to  the 
text  of  the  previous  editions.  Some  of  the  more  recent  de- 
cisions seemed  to  justify  the  few  other  additions  to  and 
changes  in  the  text  that  have  been  made. 

Most  of  the  old,  well  considered  cases,  cited  in  the  previous 

vii 


Vlll  PREFACE. 

editions,  have  been  retained,  and  it  was  the  intention  to  cite 
such  of  the  more  recent  decisions  as  ought  to  be  cited  in  a 
text-book  of  the  size  and  character  of  this  one. 

The  work  of  revision  was  pursued  with  a  high  regard  for 
the  usefulness  of  the  original  text  and  a  desire  to  avoid  all 
alterations  therein  that  might  detract  therefrom.  The  editor 
trusts  he  has  performed  his  task  in  a  manner  that  would 
meet  with  the  approval  of  his  preceptor  and  friend,  the 
author,  feeling  confident,  if  this  were  true,  of  the  approbation 
of  the  profession. 

E.  J.  W. 
Aurora,  Mo.,  June,  1906. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

REAL    PRPOERTY. 

Section     1.  What  is  real  property. 

2.  What   is   land. 

3.  Elements    composing. 

4.  Double  ownership  in  land. 

5.  Incidents   of   dual    ownership. 

6.  Lands,   tenements  and  hereditaments. 

7.  Emblements. 

8.  Trees. 


CHAPTER  II. 

FIXTURES. 

Section     9.  General  doctrine  of. 

10.  Nature  and  definition  of. 

11.  Tests  for  determining  what  are. 

12.  Identity  and  subsequent  use  of  chattel. 

13.  Between  what  parties  the  question  may  ariae. 

14.  Constructive  annexation. 

15.  Temporary  annexation. 

16.  Questions  of,  between  landlord  and  tenant. 

17.  Fixtures  erected  by  licensee. 

18.  Time  for  removal  of  fixtures. 

CHAPTER  III. 

PRINCIPLES  OP  THE  FEUDAL  SYSTEM. 


Secjtion  19.  What  is  tenure. 

20.  Feudal  tenure. 

21.  Feud  or  Fief. 

22.  Subinfeudation. 


IX 


TABLE   OF   CONTENTS. 

SBCriON  23.  The  manor  and  its  system  of  dividing  up  its  lands. 

24.  Feoffment  and  livery  of  seisin. 

25.  Tenure  in  the  United  States. 

26.  Estates  —  Classes  of. 

27.  Same  —  Estates  in  possession  and  in  expectancy. 

28.  Joint  and  several  estates. 


CHAPTER  IV. 

ESTATE  IN   FEE  SIMPLE. 

SccnoN  29.  Definition. 

30.  Words  of  limitation. 

31.  Statutes  abolishing  words  of  limitation. 

32.  The  power  of  disposition. 

33.  An  absolute  power  of  disposition  an  incident  of  a  fee. 

34.  Attempted  limitation  after,  void. 

35.  Liability  for  debts. 

CHAPTER  V. 

ESTATES  TAIL. 

Section     36.  Base  or  qualified  fees. 

37.  Fee  conditional  at  common  law. 

38.  Estates  tail. 

39.  Necessary  words   of  limitation. 

40.  Estates  tail  created  by  implication. 

41.  Classes  of  estates  tail. 

42.  How  estates  tail  may  be  barred. 

43.  Merger  of  an  estate  tail. 

44.  Estate  tail  after  possibility  of  issue  extinct. 

45.  Estates  tail  in  the  United  States. 


CHAPTER  VI. 

ESTATES   FOR   LIFE. 

Section    46.  Definition  and  classes  of  life  estates. 

47.  Peculiarities  of  an  estate  per  auter  vie. 

48.  Words  of  limitation  in  estates  for  life. 

49.  Estates  tail,  converted  into  life  estates  by  statute. 

50.  The  merger  of  life  estate  in  a  greater. 

51.  Alienation  by  tenant  for  life. 


TABLE   OF   CONTENTS. 

Section     52.  Power  given  life  tenant  to  convey  the  fee. 

53.  Tenure  between  tenant  for  life  and  reversioner. 

54.  Apportionment  between  life  tenant  and  reversioner,  of  in- 

cumbrances. 

55.  Same  —  Of  rent. 

56.  Claim  for  improvements. 

57.  Estovers. 

58.  Emblements  —  What  they  are. 

59.  Same  —  Who  may  claim  them. 

60.  Definition  and  history  of  waste. 

61.  What  acts  constitute  waste  —  General  rule. 

62.  Waste  —  In  respect  to  trees. 

63.  Property  in  timber  unlawfully  cut. 

64.  Continued  —  In  respect  to  minerals  and  other  deposits. 

65.  Continued  —  Management  and  culture  of  land. 

66.  Continued  —  In  respect  to  buildings. 

67.  Exemption  from  liability. 

68.  Remedies  for  waste. 


CHAPTER  VII. 

ESTATES  ARISING  OUT  OP  THE  MARITAL  RELATION. 

Section  I.  —  Estate  of  husband  during  coverture. 
II.  —  Curtesy. 

III.  —  Dower. 

IV.  —  Homestead. 

SECTION  I. 
ESTATE  OF  HUSBAND,  DURING  COVERTURE. 

Section  69.  Effect  of  marriage  upon  wife's  property. 

70.  Husband's  rights  in  equity. 

71.  How  husband's  rights  may  be  barred. 

72.  How  prevented  from  attaching. 

73.  Restrictions  upon  alienation  of  wife's  separate  property. 

74.  Statutory  changes  in  the  United  States. 

SECTION  II. 

ESTATE  BY   CURTESY. 

Section  75.  Definition. 
76.  Marriage. 


TABLE   OP   CONTENTS. 

BBCrnoK  77.  Estate  of  inheritance   necessary   in  the  wife. 

78.  Curtesy  in  fees  determinable, 

79.  Curtesy  in  equitable  estates. 

80.  Seisin  in  wife  during  coverture. 

81.  Curtesy   in  reversion. 

82.  Necessity  of  issue, 

83.  Liability  for  husband's  debts. 

84.  How  estate  may  be  defeated. 

SECTION  III. 

DOWER. 

teOTlON     85.  Dower  defined  and  explained. 

86.  To  what  estates  dower  attaches. 

87.  Dower   in   equitable   estates. 

88.  Dower  in  lands  of  trustee. 

89.  Dower  in  mortgages. 

90.  Dower  in  proceeds  of  sale. 

91.  Seisin  required  in  the  husband  during  coverture, 

92.  Continued  —  Defeasible  or  determinable  seisin. 

93.  Duration  of  the  seisin. 

94.  Instantaneous   seisin. 

95.  Marriage  must  be  legal. 

96.  How  dower  may  be  lost  or  barred  by  act  of  the  husband. 

97.  Continued  —  By  wife's  release  during  coverture. 

98.  Contintied  —  By  elopement  and  divorce. 

99.  Continued  —  By  loss  of  husband's  seisin. 

100.  Continued  —  By  estoppel  in  pais. 

101.  Continued  —  By  statute  of  limitations. 

102.  Continued  —  By  exercise  of  eminent  domain. 

103.  Widow's  quarantine. 

104.  Assignment  —  Two  modes. 

105.  Continued  —  Of  common  right. 

106.  Dower  against  common  right. 

107.  By  whom  may  dower  be  assigned, 

108.  Remedies  for  recovery  of  dower, 

109.  Demand  necessary. 

110.  Against  whom  and  where  the  action  is  brought, 

111.  Continued  —  Abatement  by  death  of  widow. 

112.  Judgment,  what  it  contains. 

113.  Continued  —  Damages,  when  recoverable, 

114.  Continued  —  Assignment  after  judgment, 

115.  Assignment  —  Where  two  or  more  widows  claim  dower. 

116.  Decree  of  sum  of  money  in  lieu  of  dower, 
xii 


TABLE   OF    CONTENTS. 

Section  117.  Dower  barred  by  jointure. 

118.  Continued  —  By  testamentary  provision. 

119.  Continued  —  By  statutory  provision  for  inheritance. 

SECTION  IV. 

HOMESTEAD    ESTATES. 

Sbction  120.  History  and  origin. 

121.  Nature  of  the  estate. 

122.  Who  may  claim  homestead. 

123.  What  may  be  claimed. 

124.  Proceedings  for  allotment. 

125.  Exemption  from  debt. 

126.  How  homestead  may  be  lost  —  By  alienation. 

127.  Continued  —  By  abandonment. 

CHAPTER  VIII. 

ESTATES   LESS   THAN   FREEHOLD. 

Section  I.  —  Estates  for  years. 

II.  —  Estates  at  will,  and  tenancies  from  year  to  year. 
III.  —  Estates  at  sufferance. 

SECTION  I. 

Section  128.  History  of  estates  for  years. 

129.  Definition. 

130.  Term  defined. 

131.  Interesse  termini. 

132.  Terms  commencing  in  futwro. 

133.  The  rights  of  lessee  for  years. 

134.  How  created. 

135.  Form  of  instrument. 

136.  Continued  —  Distinction   between  present   lease   and  con- 

tract for  a  future  one. 

137.  Acceptance  of  lease  necessary. 

138.  Relation  of  landlord  and  tenant. 

139.  Assignment  and  subletting. 

140.  Involuntary  alienation. 

141.  Disposition  of  terms  after  death  of  tenant. 

142.  Covenants  in  a  lease,  in  general. 

143.  Continued  —  Express  and  implied  covenants. 

xiii 


TABLE   OF   CONTENTS. 

Section  144.  Implied   covenant  for  quiet  enjoyment. 
145.  Implied  covenant  for  rent. 
14fi.  Implied  covenant  against  waste. 

147.  Covenants  running  with  the  land. 

148.  Conditions  in  leases. 

149.  Rent  reserved  —  Necessity  of  consideration. 

150.  Rent  reserved  —  Condition  of  forfeiture. 

151.  How  relation  of  landlord  and  tenant  may  be  determined. 

152.  What  constitutes  eviction. 

153.  Constructive  eviction. 

154.  Partial  eviction. 

155.  Surrender  and  merger. 

156.  How  surrender  may  be  effected. 

157.  Right  of  lessee  to  deny  lessor's  title. 

158.  Effect  of  disclaimer  of  lessor's  title. 

159.  Options  of  purchase  and  for  renewal. 

160.  Letting  land  upon  shares. 

161.  Actions  between  landlords  and  tenants. 

SECTION  II. 

ESTATES  AT  WILL  AND  TENANCIES  FROM  YEAR  TO  YEAR. 

Sectioit  162.  Estates  at  will. 

163.  How  estates  at  will  may  be  determined. 

164.  Estates  at  will  distinguished  from  tenancy  from  year  to 

year. 

165.  Tenancy  at  will  —  What  now  included  under  that  term. 

166.  Tenancy  at  will  —  Arising  by  implication  of  law. 

167.  Qualities  of  tenancies  from  year  to  year. 

168.  What  notice  is  required  to  determine  tenancy  from  year 

to  year. 

169.  How  notice  may  be  waived. 

SECTION  III. 

TENANCY  AT  SUFFERANCE. 

Action  170.  Tenancy  at  sufferance,  what  is. 

171.  Incidents  of  tenancy  at  sufferance. 

172.  How  the  tenancy  is  determined. 

173.  The  effect  of  forcible  entry. 


XIV 


TABLE   OF   CONTENTS. 

CHAPTER  IX. 

JOINT   ESTATES. 

Section  I.  —  Classes  of  joint  estates. 

II.  —  Incidents  common  to  all  joint  estates. 
III.  —  Partition. 

SECTION  I. 

CLASSES   OP   JOINT   ESTATES 

I.  —  Joint-tenancy. 
II.  —  Tenancy  in  common. 

III.  —  Estates  in  coparcenary. 

IV.  —  Estates  in  entirety. 

V.  —  Estates  in  partnership. 

Section  174.  Joint  and  several  estates  distinguished. 

175.  Joint-tenancy,   what  is. 

176.  Incidents  of  joint-tenancy. 

177.  Doctrine  of  survivorship, —  how  right  of  survivorship  is 

destroyed. 

178.  Tenancy  in  common,  what  is. 

179.  Joint  estates,  when  tenancies  in  common. 

180.  Tenancy  in  coparcenary. 

181.  Estates  in  entirety. 

182.  Estates    in    entirety    in    a    joint-tenancy,    or   tenancy    fn 

common. 

183.  Tenancy  in  common  between  husband  and  wife. 

184.  Estates  in  partnership. 

185.  Several  interests  of  partners. 

SECTION  II. 

INCIDENTS    COMMON    TO    ALL   JOINT    ESTATES.        ^ 

Section  186.  Disseisin  by  one  co-tenant. 

187.  Adverse  title   acquired  by   one  co-tenant. 

188.  Maintenance  of  actions  against  trespassers. 
180.  Alienation  of  joint  estates. 

190.  Waste  by  co-tenants.   • 

191.  Liability  of  one  co-tenant  for  rents  and  profits. 

XV 


TABLE  OP   CONTENTS. 

SECTION  III. 

PARTITION. 

SMTIoif.  192.  DeflnitioB   of   partition. 

193.  Voluntary  partition. 

194.  Involuntary  or  compulsory  partition. 
I9ri.  Who  can  maintain  action  for  partition. 

196.  Partial    partition. 

197.  Manner  of  allotment. 

198.  Relief  incidental  to  partition. 

199.  Effect  of  partition. 


CHAPTER  X. 

I8TATB6    UPON    CONDITION    AND    LIMITATION,    AND    CONDITIONAL 

LIMITATIONS. 

Sbctiox    200.  Definition  of  estates  upon  condition. 

201.  Words  necessary  to  create  an  estate  upon  condition. 

202.  Conditions  precedent  and  subsequent  distinguished. 
20.3.  Invalid  conditions  —  Impossibility  of  performance, 

204.  Invalid   condition  —  Because  of  Illegality. 

205.  Building  restrictions   in  deeds. 

206.  The  time  of  performance. 

207.  The  effect  of  breach  of  the  condition. 

208.  Waiver  of  performance. 

209.  Equitable  relief  against  forfeiture. 

210.  Estates  upon  condition,  distinguished  from  truet«. 

211.  Same  —  From    estates    upon    limitation    and    conditional 

limitations. 


CHAPTER  XL 

MORTGAGES. 

Section      I.  Nature  and  Classificatioii  of  Mortgages. 

II.  The  Rights  and  Liabilities  of  Mortgagors  and 

Mortgagees. 
III.  Remedies  and   Remedial   Rights  incident   to  a 
Mortgage. 

xvi 


TABLE   OF   CONTENTS. 

SECTION  I. 

NATURE  AND  CLASSIFICATION  OF  MORTGAGES. 

Section   212.  Definition. 

213.  Mortgages  by  deposit  of  title  deeds. 

214.  Continued  —  Notice  to  subsequent  purchasers. 

215.  Continued  —  Their  recognition  in  this  country. 

216.  Continued  —  Foreclosure. 

217.  Vendor's  lien. 

218.  Continued  —  Discharge  or  waiver  of  the  lien. 

219.  Continued  —  In  whose  favor  raised. 

220.  Vendee's  lien. 

221.  Enforcement  of  vendor's  and  vendee's  liens. 

222.  Mortgage  at  common  law. 

223.  Vivum  vadiv/m. 

224.  Welsh   mortgage. 

225.  Equity  of  redemption. 

226.  The  mortgage  in  equity. 

227.  Influence  of  equity  upon  the  law. 

228.  Tlie  form  of  a  mortgage. 

229.  Execution  of  the  defeasance. 

230.  Form  of  defeasance. 

231.  Agrements  to  repurchase. 

232.  The  defeaeance  clause  in  equity. 

233.  The  admissibility  of  parol  evidence. 

234.  Contemporaneous  agreements. 

235.  Subsequent  agreements. 

236.  Tlie   mortgage   debt. 

237.  Mortgages  for  the  support  of  the  mortgagee. 

238.  What  may  be  mortgaged. 

SECTION  II. 

THE  RIGHTS  AND   LIABILITIES  OF   MORTGAGORS  AND   MORTGAGEBS. 

Section    239.  The  mortgagor's  interest. 

240.  The  mortgagee's  interest. 

241.  Devise  of  the  mortgage. 

242.  Merger  of  interests. 

243.  Possession  of  mortgaged  premises. 

244.  Special  agreements  in  respect  to  the  possession. 

245.  Rents  and  profits. 

246.  Mortgagee's    liability    for    rents    received. 

247.  Tenure  between  mortgagor  and  mortgagee. 

xvii 


TABLE   OF   CONTENTS. 

SKcnoif  248.  Insurance  of  tlie  mortgaged  premises. 

249.  Assignment  of  the  mortgage. 

250.  Common-law  assignment. 

2.'>1.  Assignment  under  the  lien  theory. 
252.  Assignment  of  the  mortgagor's  interest. 
25.3.  Rights  and  liabilities  of  assignees. 

254.  Effect  of  payment  or  tender  of  payment. 

255.  Who  may  redeem. 

256.  What  acts  extinguish  the  mortgage. 

257.  The  effect  of  a  discharge. 

258.  When  payment  will  work  an  assignment. 
259.  Registry  of  mortgages,  and  herein  of  priority. 
2G0.  Rule  of  priority  from  registry,  its  force  and  effect. 

261.  Registry   of  assignments    of   mortgages   and   equities   of 

redemption. 

262.  Tacking  of  mortgages. 

263.  Priority   in  mortgages   for  future  advances. 

264.  Satisfaction  of  the  mortgage  on  the  records. 


SECTION  III. 

REMEDIES  AND   REMEDIAL   RIGHTS   INCIDENT   TO    MORTGAGES. 

Sbction  265.  Actions  for  waste. 

266.  Process  to  redeem. 

267.  Accounting  by  the  mortgagee. 

268.  Continued  —  What  are  lawful  debits? 

269.  Continued  —  What  are  lawful  credits  ? 

270.  Making  rests.  , 

271.  Balance  due. 

272.  Foreclosure  —  Nature  and  kinds  of. 

273.  Continued  —  Who  should  be  made  parties? 

274.  Parties  to  Foreclosures  —  Continued. 

275.  Effect  of  decree  in  foreclosure  upon  the  land. 

276.  The  effects  of  foreclosure  upon  the  debt. 

277.  Mortgages,  with  power  of  sale. 

278.  Character  of  the  mortgage  in  relation  to  the  power. 

279.  Purchase  by  mortgagee  at  his  own  sale. 

280.  Extinguishment  of  the  power. 

281.  Application  of  purchase-money. 

282.  Deeds  of  trust. 

283.  Contribution  to  redeem  —  General  statement. 

284.  Mortgagor  v.  his  assignees. 

285.  Contribution  between  assignees  of  the  mortgagor  —  Effect 

of  release  of  one  of  them, 
xviii 


TABLE   OF   CONTENTS. 

Section  286.  Contribution  between  the  surety  and  the  mortgagor. 

287.  Between  heirs,  widows,  and  devisees  of  the  mortgagor. 

288.  Between  the  mortgaged  property  and  the  mortgagor's  per- 

sonal estate. 

289.  Special  agreements  affecting  the  rights  of  contribution  and 

exoneration. 

290.  Marshaling  of  assets  between  successive  mortgagees. 


CHAPTER  XII. 

"  REVERSION." 

Section   291.  Definition. 

292.  Reversion  —  Assignable  and  devisable. 

293.  Reversion  —  Descendible  to  whom. 

294.  Dower  and  curtesy  in  reversions. 

295.  Rights  and  powers  of  the  reversioner. 


CHAPTER  XIII. 

REMAINDERS. 

Section      I.  Of  remainders  in  general  and  herein  of  vested 
remainders. 
II.  Contingent  remainders. 
Ill,  Estates  within  the  rule  in  Shelley's  Case. 

SECTION  I. 

OF  REMAINDERS  IN  GENERAL  AND  HEREIN  OP  VESTED  REMAINDERS. 

Section  296.  Nature  and  definition  of  remainders, 

297.  Kinds  of  remainders. 

298.  Successive  remainders. 

299.  Disposition  of  a  vested  remainder. 

300.  Relation  of  tenant  and  remainder-man. 

301.  Vested    and   contingent    remainders    further   distinguished 

—  Uncertainty   of   enjoyment. 

302.  Same  —  Remainder  to  a  class. 

303.  Same  —  After  the  happening  of  the  contingency. 

304.  Cross  remainders. 


XIZ 


TABLE   OF   CONTENTS. 

SECTION  II. 

CONTINGENT  REMAINDERS. 

Section  306.  Nature  and  origin  of  contingent  remainders. 
.306.  Classes  of  contingent  remainders. 

307.  Alienation  of  contingent  remainders. 

308.  Vested  remainder  after  a  contingent. 

309.  Same  —  Such  limitations  in  wills. 

310.  Alternate  remainders  in  fee. 

311.  Restrictions  on  contingency  —  Legality. 

312.  Same  —  Remoteness. 

313.  Same  —  Abridging  the  particular  estate. 

314.  How  contingent  remainders  may  be  defeated. 

315.  Same — 1.  By  disseisin   of  particular  tenant. 

316.  Same  —  2.  By  merger. 

317.  Same  —  3.  By  feoffment. 

318.  Same  —  4.  By  entry  for  condition  broken. 

319.  Trustees  to  preserve. 

320.  Actions  by  remainder-men. 

SECTION  III. 

ESTATES    WITHIN    THE    RULE    IN    SHELLEY 'S    CASE. 

Action    321. —  Origin  and  nature  of  the  rule. 
322. —  Requisites  of  the  rule. 

CHAPTER  XIV. 

USES  AND  TRUSTS. 

Section      I.  Uses  before  the  Statute  of  Uses. 
II.  Uses  under  the  Statute  of  Uses. 

III.  Shifting,  Springing  and  Contingent  Uses. 

IV.  Trusts. 

SECTION  I. 

USES  BEFORE  THE  STATUTE  OF  USBfiL 

Section    323.  Pre-statement. 

324.  Origin   and  history. 
.325.  What  is  a   use. 
XX 


TABLE   OF    CONTENTS. 

Section  326.  Enforceir.ent   of  tlie   use. 

327.  Distinction  between  Uses  and  Trusts. 

328.  How   uses   may   be   created. 
321).  Same  —  Resulting  use. 

330.  Same  —  By  simple  declarations. 

331.  W  Jio  might  be  fty}ffees  to  use  and  cestuis  que  tise. 

332.  What  might  be  conveyed  to  uses. 

333.  Incidents  of  uses. 

334.  Alienation  of  uses. 

335.  Estates  capable  of  being  created  in  uses. 

336.  Disposition  of  uses  by  will. 

337.  How  lost  or  defeated. 


SECTION  II. 

USES   UNDER   THE   STATUTE   OF   USES. 

Section  338.  History  of  the  Statute  of  Uses. 

339.  When  statute  will  operate. 

340.  A  person  seised  to  a  use  and  in  esse. 

341.  Freehold  necessary. 

342.  Use  upon  a  use. 

343.  Feoffee  and  cestui  que  use  —  Same  person. 

344.  A  use  in  esse. 

345.  Cestui  que  use  in  esse. 

346.  Words  of  creation  and  limitation. 

347.  Active  and  passive  uses  and  trusts. 

348.  Uses  to  married  women. 

349.  Cases  in  which  the  statute  will  not  operate. 

SECTION  III. 

CONTINGENT,  SPRINGING,  AND  SHIFTING  USES. 

Section  350.  Future  uses. 

351.  Contingent  future  uses  —  How  supported. 

352.  Importance  of  the  question. 

353.  The  solution  of  the  question. 

354.  Contingent  uses. 

355.  Springing  uses. 

356.  Shifting  uses. 

357.  Future  uses  in  chattel   interests. 

358.  Shifting  and  springing  uses  —  How  defeated. 

359.  Incidents  of  springing  and  shifting  uses. 

xxi 


TABLE  OF  CONTENTS. 

SECTION  IV. 

TRUSTS. 

Section  360.  What  are  trusts. 

361.  Active  and  passive  trusts. 

362.  Executed  and  executory  trusts. 

363.  Express  trusts. 

364.  Implied,  resulting,  and  constructive  trusts. 

365.  Implied  trusts. 
36(5.  Resulting  trusts. 

367.  Same  —  Payment  of  consideration. 

368.  Constructive  trusts. 

369.  Interest  of  the  cestui  que  trust. 

370.  Liability  for  debts. 

371.  Words  of  limitation. 

372.  Doctrine  of  remainders  applied  to  trusts. 

373.  How  created  and  assigned. 

374.  Statute  of  Frauds. 

375.  How  affected  by  want  of  a  trustee. 

376.  Removal  of  trustees. 

377.  Refusal  of  trustee  to  serve. 

378.  Survivorship. 

379.  Merger  of  interest. 

380.  Rights  and  powers  of  trustees. 

381.  Rights  and  powers  of  ccstuis  que  trust. 

382.  Alienation  of  trust  estate. 

383.  Liability  of  third  persons  for  performance  of  the  trust. 

384.  Compensation  of  trustee. 

CHAPTER  XV. 

EXECUTORY  DEVISES. 

Section  385.  Nature  and  origin. 

386.  Executory  devises,  vested  or  contingent. 

387.  Classes  of  executory  devises. 

388.  Distinguished  from  devises  in  proesenti. 

389.  Reversion  of  estate  undisposed   of. 

390.  Di.stinguished   from   uses. 

391.  Distinguished  from  remainders. 

392.  Same  —  Limitation  after  a   fee. 

393.  Same  —  Limitation  after  an  estate-tail. 

394.  Same  —  Where  first  limitation   lapses. 

-395.  Same  —  Limitations   after   an   executorv   devise. 


TABLE   OF   CONTENTS. 

Section  396.  Indestructibility  of  e.Kecutory   devises, 

397.  Limitation  upon  failure  of  issue. 

398.  Same  —  In  deeds. 

399.  Doctrine  of  perpetuity. 

400.  Rule  against  accumulation  of  profits. 

401.  Executory  devises  of  chattel  interests. 

CHAPTER  XVI. 

POWERS. 

Section  402.  The  nature  of  powers  in  general. 

403.  Powers  of  appointment. 

404.  Kinds  of  powers. 

405.  Suspension  and  destruction  of  powers. 

406.  How  powers  may  be  created. 

407.  Powers  distinguished  from  estates. 

408.  Power  enlarging  the  interest,  with  which  it  is  coupled. 

409.  Who  can  be  donees. 

410.  By  whom  the  power  may  be  executed. 

411.  Mode  of  execution. 

412.  Who  may  be  appointees. 

413.  Execution  by  implication. 

414.  Excessive  execution. 

415.  Successive  execution. 

416.  Revocation  of  appointment. 

417.  Defective  executions  —  How  and  when  cured. 

418.  Non-executions. 

419.  Rules  of  perpetuity. 

420.  Rights  of  donee's  creditors  in  the  power, 

421.  The  rights  of  creditors  of  the  beneficiary. 


CHAPTER  XVII. 

INCORPOREAL  HEREDITAMENTS. 

Section    I,  Rights  of  Common. 

II,  Easements. 

Ill,  Franchises. 

IV,  Rents. 

Section  422,  Incorporeal  hereditaments  defined. 

423,  Kinds  of  incorporeal  hereditaments, 

xxiii 


TABLE   OP   CONTENTS. 

SECTION  I. 

RIGHTS  OP  COMMON. 

Section  424.  Definition. 

425.  Kinds  of  rights  of  common. 

426.  Commons  appendant  and  appurtenant. 

SECTION  II. 

EASEMENTS. 

Section  427.  What  are  easements. 

428.  When  merger  takes  eflFect. 

429.  How  acquired. 

430.  Easements  by  express  grant. 

431.  Implied  grant. 

432.  Equitable  casements. 

433.  Easements  implied  from  covenant. 

434.  Rights  of  action  in  defense  of  easement. 

435.  How  easements  may  be  lost  or  extinguished. 

436.  Kinds  of  easements. 

437.  Right  of  way. 

438.  A  private  way. 

439.  Ways  of  necessity. 

440.  Who  must  repair  the  way. 

441.  Public  or  highways. 

442.  Light  and  air. 

443.  How  acquired. 

444.  Right  of  water. 

445.  Percolations  and  swamps. 

446.  Artificial  water  courses. 

447.  Easements  in  water  courses  and  surface  drainage. 

448.  Right  of  lateral  and  subjacent  support. 

449.  Implied  grant  of  lateral  support. 

450.  Party  walls. 

451.  Double  ownership  in  buildings  —  Subjacent  support. 
462.  Legalized  nuisances. 

SECTION  III. 

FRANCHISES. 

Section  453.  Definition. 

4.54.  Kinds  of  franchises. 
45.5.  Mutual  obligations. 

4.56.  Conflicting  franchises  —  Constitutional   prohibition. 
xxiv 


TxVBLE   OF   CONTENTS 

SECTION  IV. 

BENTS. 
Section  457.  Rents  defined. 

458.  Rent-service. 

459.  Rent-charge  and  rent-seek  —  Fee  farm  rents. 

460.  How  created. 

461.  How  extinguished  or  apportioned. 

462.  Remedies  for  the  recovery  of  the  rent. 

463.  Liens  arising  from  charges  by  will  or  by  deed. 

464.  Liens  by  express  charges. 

CHAPTER  XVIII. 

LICENSES. 

Section  465.  What  is  a  license? 

466.  Revocation  of  the  license. 

467.  Revocation  of  license  —  Continued. 

468.  How  licenses  are  created. 


CHAPTER  XIX. 

TITLES — GENERAL   CLASSIFICATION   OF    TITLES. 

Section  469.  What  is  title  ?  —  By  descent  and  purchase. 
470.  Original  and  derivative  titles. 


CHAPTER  XX. 

TITLE  BY  DESCENT. 

Section  471.  Definition. 

472.  Lex  loci  ret  sitcB. 

473.  Consanguinity  and  affinity. 

474.  How  lineal  heirs  take. 

475.  Lineal  consanguinity  in  the  ascending  series. 

476.  Collateral  heirs. 

477.  Computation  of  collateral  relationship. 

478.  Ancestral  property. 

479.  Kindred  of  the  whole  and  half  blood. 

480.  Advancement  —  Hotchpot. 

481.  Posthumous  children. 

482.  Illegitimate  children. 

483.  Alienage  a  bar  to  inheritance. 

.  XXV 


TABLE  OP  CONTENTS. 

CHAPTER  XXI. 

TITLE  BY  ORIGINAL  ACQUISITION. 

Section    I.  Title  by  occupancy. 
II.  Title  by  accretion. 

III.  Title  by  adverse  possession. 

IV.  Statute  of  Limitations. 
V.  Estoppel. 

VI.  Abandonment. 

SECTION  I. 

TITLE   BY   OCCUPANCY. 

Section  484.  Definition. 

485.  Condition  of  public  lands  in  the  United  States. 

486.  Estates  per  outer  vie. 

SECTION  II. 

TITLE   BY   ACCRETION. 

Section  487.  Definition. 

488.  AlluYion. 

489.  Fihim  AqucB. 

SECTION  III. 

TITLE  BY  ADVERSE  POSSESSION. 

Section  490.  Eflfect  of  naked  possession. 

491.  Seisin  and  disseisin. 

492.  Disseisin  and  dispossession   distinguished. 

493.  Actual  and  constructive  possession. 

494.  Actual   or   constructive   possession  —  Continued. 

495.  What  acts  constitute  actual  possession  —  Visible  or  noto- 

rious. 

496.  Possession  must  be  distinct  and  exclusive. 

497.  Possession  —  Hostile  and  adverse. 

498.  Adverse  possession,  when  entry  was  lawful. 

499.  Disseisor's  power  to  alien. 

500.  Betterments. 

.501.  Title  by  adverse  possession  —  How  defeated. 

502.  Title  by  adverse  possession  —  How  made  absolute. 

xxvi 


TABLE   OF   CONTENTS. 

SECTION  IV. 

STATUTE  OF  LIMITATIONS. 

Section  503.  What  the  statute  enacts. 

504.  Adverse  possession  —  Continuous  and  uninterrupted. 

505.  Against  whom  the  statute  runs. 

506.  How  and  when  statute  operates. 

507.  Effect  of  the  statute. 

SECTION  V. 

ESTOPPEL. 

Section  508.  Definition. 

509.  Estoppels  in  pais. 

510.  Is  fraud  necessary  to  estoppel  in  pais. 

511.  Estoppel  in  deed. 

512.  Estoppel  in  deed  —  Continued. 

513.  Effect  of  estoppel  upon  the  title. 

514.  Effect   of  estoppel  —  Continued. 

515.  Estoppel  binding  upon  whom. 

SECTION  VI. 

ABANDONMENT. 

Section  516.  Effect  of  abandonment  generally. 

517.  Abandonment  of  title  by  adverse  possession. 

518.  Surrender  of  deed. 

CHAPTER  XXII. 

TITLE   BY   GRANT. 

Section      I.  Title  by  public  grant. 

II.  Title  by  involuntary  alienation. 
HI.  Title  by  private  grant. 

SECTION  I. 

TITLE  BY  PUBLIC  GRANT. 

Section  519.  Public  lands. 

520.  Forms  of  public  grant. 

521.  The  relative  value  of  the  patent  and  certificate  of  entry. 
622.  Pre-emption. 

xxvii 


TABLE   OF   CONTENTS. 

SECTION  II. 

TITLE    BY    INVOLUNTARY     ALIENATION. 

Section  523.  Title  hy  involuntary  alienation,  what  is? 

524.  Scope  of  legislative  authority. 

525.  Eminent  domain. 

526.  Persons  under  disability. 

527.  Confirming  defective  titles. 

528.  Sales  by  administrators  and  executors. 

529.  Sales  under  execution. 

530.  Sales  by  decree  of  chancery. 

531.  Tax-titles. 

532.  Validity  of  tax-title. 

533.  Judicial  sales  for  delinquent  taxes. 

SECTION  III. 

TITLE    BY    PRIVATE    GRANT. 

Section  534.  Title  by  private  grant,  what  is? 

(a.)   Common-law  conveyances. 
5.35.  Principal  features  and  classes  of  common-law  conveyances. 

536.  Feoffment. 

537.  Grant. 

538.  Lease. 

539.  Release,  confirmation  and  surrender. 

(6.)   Conveyances  under  the  Statute  of  Uses. 

540.  Retrospection. 

541.  Covenant  to  stand  seised. 

542.  Bargain  and  sale. 

543.  Future  estates  of  freehold  in  bargain  and  sale. 

544.  Lease  and  release. 

(c. )   Modern  conveyances. 

545.  What  conveyances  judicially  recognized. 

546.  Statutory  forms  of  conveyance. 

547.  Quit-claim  deeds. 

548.  Dual  character  of  common  conveyances. 

549.  Is  a  deed  necessary  to  convey  freeholds? 

CHAPTER  XXIII. 

DEEDS  —  THEIR  REQUIREMENTS  AND  COMPONENT  PARTS. 

Section      I.  The  requisites  of  a  deed. 
xxviii 


TABLE   OF    CONTENTS. 

II.  The  component  parts  of  a  deed. 
III.  Covenants  in  deeds. 

SECTION  I. 

THE  REQUISITES  OF  A  DEED. 

Section  550.  Definition  of  a  deed. 

551.  Requisites,  what  they  are. 

552.  A  sufficient  writing,  what  constitutes. 

553.  A  sufficient  writing,  what  constitutes  —  Continued. 

554.  Alterations  and  interlineations. 

555.  Proper  parties  —  The  grantor. 

556.  Infants  and  insane  persons! 

557.  Ratification  and   disaffirmance. 

558.  Deeds  of  married  women. 

559.  A  disseisee  cannot  convey. 

560.  Fraud  and  duress. 

561.  Proper  parties  —  Grantees. 

562.  Proper  parties  named  in  the  deed. 

563.  A  thing  to  he  granted. 

564.  A  thing  to  he  granted  —  Continued. 

565.  The  consideration. 

566.  Voluntary  and  fraudulent  conveyances. 

567.  Operative  words  of  conveyance. 
668.  Execution,  what  constitutes. 

569.  Power  of  attorney. 

570.  Power  of  attorney  granted  by  married  woman. 

571.  Signing. 

572.  Sealing. 

573.  Attestation. 

574.  Acknowledgment  or  probate. 

575.  Reading  of  the  deed,  when  necessary. 

576.  Delivery  and  acceptance. 

577.  What  constitutes  a  sufficient  delivery. 

578.  Delivery  to  stranger  —  When  grantee's  assent  presumed. 

579.  Escrows. 

580.  Registration  of  deeds. 

581.  Requisites  of  a  proper  record. 

582.  To  whom  is  record  constructive  notice. 

583.  Priority  of  unrecorded  mortgages  over  judgments. 
684.  Of  what  is  record  constructive  notice. 

585.  From  what  time  priority  takes  effect. 
686.  What  constitutes  notice  of  title? 

zxix 


TABLE  OP   CONTENTS. 

SECTION   11. 
COMPONENT  PARTS  OF  A  DEED. 

Section  587.  Deeds-poll  and  of  indenture. 

588.  Component  parts  of  a  deed. 

589.  The  premises. 

590.  Description  —  General  statement. 

591.  Contemporanea  Expositio  est  optima  et  fortissima  in  lege. 

592.  Falsa  demonstratio  von  nocet. 

593.  Description  in  conveyance  of  joint-estates. 

594.  The  elements  of  description. 

595.  Monuments  —  Natural  and  artificial. 

596.  Artificial  monuments  in  United  States  Surveys. 

597.  Non-navipjable  streams. 

598.  Navigable  streams. 

599.  What  is  a  navigable  stream. 

600.  Ponds  and  lakes. 

601.  Highways. 

602.  Walls,  fences,  trees,  etc. 

603.  Courses  and  distances. 

604.  Quantity. 

605.  Reference  to  other  deeds,  maps,  etc.,  for  description. 

606.  Appurtenants. 

607.  Necessity  of  use  controls  grant  of  easement  as  appurte- 

nant. 

608.  Exception  and  reservation. 

609.  Habendum. 

610.  Reddendum. 

611.  Conditions. 


SECTION  III. 

COVENANTS  IN  DEEDS. 

Section  612.  General  statement. 

613.  Covenant  enlarging  the  estate. 

614.  Covenant  of  seisin  and  right  to  convey. 

615.  What  facts  constitute  a  breach. 

616.  Covenant  against  incumbrances. 

617.  What    circumstances    constitute    a    breach    of    covenant 

against  incumbrances. 

618.  Covenant  for  quiet  enjoyment. 

619.  Covenant  of  warranty. 

620.  The  character  of  the  covenant  of  warranty. 

621.  The  feudal  warranty. 
XXX 


TABLE   OF    CONTENTS. 

Section  622.  Special  limited  covenants  of  title  —  Exceptions  to  opera- 
tion of  covenants. 

623.  Implied  covenants. 

624.  Who  may  maintain  actions  on  covenants  of  warranty. 

625.  Damages,  what  may  be  recovered. 

626.  What  covenants  run  with  the  land. 

627.  When  breach  of  covenant  works  a  forfeiture  of  estate. 


CHAPTER  XXIV. 

TITLE  BY  DEVISE. 

Section  628.  Definition  and  historical  outline. 

629.  By  what  law  are  devices  governed. 

630.  The  requisites  of  a  valid  will. 

631.  A  sufficient  writing. 

632.  What  signing  is  necessary. 

633.  Proper  attestation,  what  is. 

634.  Who  are  competent  witnesses. 

635.  Who  may  prepare  the  will — Holographs. 

636.  What  property  may  be  devised. 
-637.  A  competent  testator,  who  ia. 

638.  Who  may  be  devisees  —  What  assent  necessary. 

639.  Devisee  incapacitated  by  murder  of  testator. 

640.  Devisee  and   devise  must  be  clearly  defined  —  Parol  evi- 

dence. 

641.  Devisees  of  charitable  uses. 

642.  Lapsed  devises  —  What  becomes  of  them. 

643.  Revocation  of  wills. 

644.  Joint  or  mutual  wills. 

645.  Revocation  by  destruction  of  will. 

646.  Effect  of  alterations  of  will  after  execution. 

647.  Revocation  by  marriage  and  issue.  . 

648.  Revocation  by  alteration  or  exchange  of  property. 

649.  Revocation  by  subsequent  will  or  codicil. 

650.  Defective  will  confirmed  by  codicil. 

651.  Contingent  wills. 

652.  Probate  of  will. 

663.  Agreements  as  to  testamentary  disposition  of  property. 

CHAPTER  XXV. 

REGISTRATION    OF    TITLES. 

Skction  654.  History  of  legislation  regarding. 
655.  Object  of  statutes  providing  for. 

xxxi 


TABLE  OF  CONTENTS. 

Section  656.  Constitutionality   of   statutes   concerning. 

657.  Registrars  and  examiners  provided. 

658.  How  land  is  brought  under  statute. 

659.  Proceedings  before  examiner. 

660.  Jurisdiction  and  power  of  the  court. 

661.  EflFect  of  registration. 

662.  Conveyances  under  the  Torrens  law. 

663.  Death  of  owner  —  Transmission  of  land. 

664.  Judgments,  liens  and  assessments  against  land. 

665.  Relief  against  arbitrary  power  of  registrar. 

666.  Indemnity  and  procedure  to  recover. 

667.  Advantages  and  objections  to  title  registration. 


TABLE  OF  CASES  CITED. 


[References  are  to  ;S'ech'o?js.] 


Abbott  V.  Abbott,   121. 

Abbe   V.    Goodwin,    254. 

Abbott   V.    Allen,    C14. 

Abbott    V.    Bayley,    558. 

Abbott  V.    Essex   Co.,    307. 

Abbott   V.    Godfrey,    228. 

Abbott    z'.    Kasson,    25S. 

Abbott  V.  K.   C,   etc.,   R.   R.   Co.,  445. 

Abbott   V.    Lindenbouer,    532. 

Abbey   v.   Billup,   146. 

Abeel  v.  Radcliffe,  374. 

Abele  v.  McGuigan,  253. 

Abercronibie    v.    Redpath,    149. 

Abercrombie   z'.    Riddle,    54. 

Abercrombie  v.   Simmons,   591. 

Abraham  v.  Twiggs,  398. 

Abraham  v.   Wilkins,    633. 

Accidental  Death  Ins.   Co.  v.  Mackenzie, 

157. 
Acker   v.    Osborne,    302. 
Acker  v.  Seekright,  634. 
Ackland  v.    Lutley,    361. 
Acree  v.   Stone,   221,   217. 
Acton   V.    Dooley,    497. 
Adair   v.   Lott,   75. 
Adams  v.  Adams,  373,  377. 
Adams  r.   Bank,   257. 
Adams   v.    Brereton,    61. 
Adams  v.    Briggs,    4,    197. 
Adams  v.   Brown,   267. 
Adams   v.    Buchanan,    217. 
•Adams    v.    Bucklin,    460. 
Adams  v.   Butts,  85. 
Adams   v.    Carpenter,    494. 
Adams   v.    Cowherd,    219. 
Adams   v.    Cuddy,    582. 
Adams  v.  City  of  Cohoes,  168. 
Adams   v.    Essex,    272, 
Adams   v.    Field,   633. 
Adams  v.   Frye,    577. 
Adams  v.   Fullam,   498. 
Adams   v.    Goddard,    156. 
Adams  v.   Greerard,    367. 
Adams   tr.   Guerard,   322. 
Adams    v.    Hopkins.    195. 
Adams   v.    Logan,    521. 
Adams  v.   Palmer,   97. 
Adams   v.    Parker,   250. 
Adams  v.    Paynter.    273. 
Adams  v.  Rockwell,   497,   510. 
Adams  v.   Ross,   30,    302. 
Adams  v.   Savage,   329,   354. 
.Adams  v.   Shirk,   157. 
Adams   v.   Smith,   238. 
Adams  r.    State.    160, 


Adams    v.    Steer,    567. 

Adams    v.    Stevens,   229,    590. 

Adams  v.   Truman,   468. 

Addison  f.   Dawson,   556. 

Addison    v.    Hack,    467. 

Adler   v.    Mendelsohn,    172. 

Adsit   V.   Adsit,    118. 

Advent  v.   Arrington,   494. 

Acer   V.    Westcott.    480. 

Aetna    Ins.    Co.    v.    Tyler,    220,    248. 

Aflolter   V.    May,   C40. 

Agate  z\    Lowenbein,    60. 

Agric.   Bk.  v.  Rice,  558. 

Agricultural    Assn.    v.    Brewster,    307. 

Ahern   v.    Steele,    146. 

Ahrend   v.    Odiorne,   217. 

Aikers    z'.    Ela,    403. 

Aiken    v.   Gale,   285. 

Aiken   v.    Perry,    140. 

Aiken    v.    Smith,    130,   160. 

Akers  v.    Clark,   292. 

Aikin  v.  Kellogg,   118. 

Aiken    v.    Perry,    142. 

Alabama    Conference    Z'.    Price,    640. 

Ala.  Gold  Life  Ins.   Co.  z:  Oliver,  149. 

Albany   Fire   Ins.   Co.  v.   Pay,   558. 

Albert   v.    Albert,   310. 

Albin    V.    Parmele,   321. 

Albiton   V.    Bird,    471. 

Alcott  V.   Tope,   647. 

Alden   v.    Carleton,    100. 

Alderman   v.    Neate,    130. 

Alderson   v.   Alderson,   82. 

Alderson  v.   Miller,    157. 

Aldrich   v.   Green,   407. 

Aldrich   v.    Parsons,    9. 

Aldridge  v.   Dunn,   217,  218. 

Alexander   v.    Alexander,    414,   195. 

Alexander   v.    Carew,    559. 

Alexander  v.   Fisher,   62. 

Alexander  v.   Hill,   278. 

Alexander  zj.  Light,    177. 

Alexander  v.   Lively,   596. 

Alexander  v.  Pendleton,  504. 

Alexander  v.    Polk,    572. 

Alexander  v.    Schreiber,   623. 

Alexander   v.    Tolleston   Club,    432. 

Alexander  v.  Warrance,   367. 

Alexander  v.   Wheeler,   498,   497. 

Alexander   v.   Zeip'"r,   160. 

Alger  V.  Kennedy    151,  153. 

All    V.   Goodson,    j<5. 

Allan   V.   Gourme,    438. 

Allan    V.    Hall,    157. 

Allan  V.  Taft,   605. 

Allard   v.    Carledon,    197. 

Allder   v.   Jones,   412,   418. 

xxxiii 


TABLE   OP   CASES   CITED. 


[References  are  to  Sections.] 


Alleman  v.  Hawley,   190,   197. 

Allen    V.    Allen,    100.    495. 

Allen   V.    Austin,    98. 

Allen  V.   Bates,   605. 

Allen  f.   Bryan,   149. 

Allen   V.   Carpenter,   59. 

Allen   V.    Craft,   204,   321. 

Allen   f.    De   Croodt,   300. 

Allen  V.   Evcrly,  243. 

Allen    V.    Holten.    176,    501. 

Allen   V.    Hooper,    558,    570. 

Allen   V.    Taquish,    134,    156. 

Allen  V.  Kennedy,   614,  624. 

Allen    V.    Kingsbury,    595. 

Allen    V.    Koepsel,    149. 

Allen    V.    Lathrop,   236. 

Allen  r.   Lee,   619. 

Allen  V.   Libby,    195. 

Allen    V.    Loring,    217. 

Allen   V.    Mayfield,   301. 

Allen  V.   Craig,   118. 

Allen   V.   Scott,   606. 

Allen   V.    Taylor,    617. 

Allender's   Lessee  v.  Sussan,  39,  399. 

Allis  V.  Moore,   505. 

Allison   V.   Allison,    631. 

Allison  V.   Wilson    Exrs.,   405,  421. 

Allore  V.  Jewell,    556. 

Allsmiler  v.   Freutchenicht,  801. 

Allyn   V.    Mather,    312. 

Almy  V.   Daniels,   191. 

Almy    V.    Hunt,    617. 

Alperir  v.   Earle,  146. 

Alston    V.   Alston,    260. 

Althaw   V.    Anglesea,   329. 

Althorf  V.   Wolfe,   66. 

Alttnan   v.    Banholzer,   253. 

Alvis  V.   Morrison,   260. 

Alvis    V.    Alvis,     126. 

Ambree   v.   Weishaar,   633. 

Ambler    v.    Norton,    117. 

Ambrose   v.    Ambrose,    374. 

Ambrose   r.    Otty,   374. 

Ambs  V.  Chicago,  etc.,    R.    R.   Co.,   592. 

Amer.    Nat.    Bank   v.    Cruger,   122. 

American   Unitarian  Ass'n  v.  Minot,   201. 

Ames  V.    Ames,    195. 

Ames   V.    Ashley,   373. 

Ames  V.    Norman,    187. 

Ames  V.   Shaw,   434. 

Amherst  v.   Lytton,  309. 

Ammonette  v.  Black,  374. 

Amory   t'.    Fellowes,   634. 

Amory   v.    Meredith,    413. 

Amphlett  v.   Hibbard,   273. 

Am.  River  Co.  v.  Amsden,  599. 

.Am.    Tract.    Soc.    v.    Atwater,    638. 

Amyot  V.  Dwarris,   638. 

Anderson   v.    Anderson,   576,   633. 

Anderson   r.   Brewster,    163. 

Anderson   v.    Brown,   631. 

Anderson  J'.   Carter,   518. 

Anderson  v.  Chicago  Ins.  Co.,  154. 

Anderson   v.  Clears,   365. 

Anderson  v.   Connor,   139. 

Anderson   r.    Dodd,    493. 

Anderson  v.   Donnell,  217. 

Anderson  v.  Dugas,  585. 

Anderson    v.    Fitzpatrick,   85. 

Anderson  v.   Hays,   161. 

xxxiv 


Anderson  v.  Jackson,  399. 

Anderson  v.   Knox,    610. 

Anderson  v.  Lauterman,   246. 

Anderson  v.   Nagle,   583. 

Anderson   v.    Neff,    262. 

Anderson   v.    Northrop,   187. 

Anderson    v.    Parsons,   642. 

Anderson   v.    Pilgram,   272,    276. 

Anderson   v.   Prindle,    164. 

Anderson   v.    Prym,   635. 

Anderson    v.    Robbins,    149. 

Anderson  v.  Spencer,  220. 

Andrews  v.    Andrews,    64,    85, 

Andrews   v.    Brewster,    653. 

Andrew   t'.    Brumfield,   408. 

Andrews  v.   Fisk,  252,  279. 

Andrews  v.   Gillespie,   590,   624. 

Andrews    v.    Hobson,    373. 

Andrews  v.  Jackson,   399. 

Andrews   v.    Lathrop,    321. 

Andrew  v.  Lyon,   509. 

Andrews  v.    Mathews,    583. 

Andrews   v.    McDaniel,    253. 

Anderson   v.   Meredith,   190. 

Andrews  v.    Rice,   399. 

Andrews  f.   Roye,   298. 

Andrews    v.    Scotton,    276. 

Andrews  v.   Senter,   207. 

Andrews   v,    Sparhawk,   383. 

Andrews   v.   Spurr,    590. 

Andrews   v.    Steele,    273. 

Andrews  v.   Todd,   552. 

Angell   V.    Rosenbury,    30. 

Angier   v.    Schieffelin,    574. 

Anglo-California    Bank   f.   Cerf.,   278. 

Angler  v.    Shieffelin,    97. 

Anglesea  v.   Church    Wardens,    204. 

Aner  v.   Brown,   421. 

Anketel    v.    Converse,    218. 

Ann  Arbor    Sav.   Bank  v.   Webb,    242, 

Annable   v.    Patch,   388. 

Annan   v.    Baker,   532. 

Annapolis   R.    R.  v.   Gault,   243. 

Annis  v.   Wilson,   373. 

Antenreith  v.   St.   Louis,   etc.,   R.   R.   Co., 

434. 
Anthes  v.   Schroeder,  509. 
Anthony  v.   Anthony,    233,    301. 
Anthony  v.   Kennard,    430,   443. 
Anthony  v.   Lapham,   444. 
Anthony   v.    Nye,    273. 
Antoni  v.   Belknap,  916. 
Apple   V.   Apple,   294. 
Applegate  v.  Gracy,   580. 
Appleton   V.    Ames,    139. 
Appleton   V.    Rowley,    79. 
Arbenz  v.  Exley  &  Co.,  168. 
Arcedechare  v.   Bowes,   266. 
Archer  v.   Beihl,   492. 
Archamban  v.  Green,  229. 
Archer   v.    Ellison,    45. 
Archer  v.  Jacobs,  296,  297. 
Archibold   v.    Scully,   247. 
Archer   v.   Jones,    53. 
Ards  V.   Watkins,    149. 
Ardes    Oil   Min.    Co.    ■;•.   N.    A.    Min    Co., 

616. 
Arkwright   v.  Gell,   446. 
Arlin   V.    Brown,    217. 
Armington  v.  Armington,   479. 


TABLE   OF   CASES   CITED. 


iBeferences  are  to  Sections.] 


Artnitage  v.  WinklifFe,  254. 

Arms    I'.    Lyman,    196. 

Armstead   v.   Jones,    529. 

Armstrong  v.  .Armstrong,  399,  632. 

Armstrong  v.   Cannady,    178. 

Armstrong  v.    Cormody,    1S8. 

Armstrong   v.    Darby,    612. 

.\rmstrong  v.   Kent,   393. 

.Armstrong   v.    Moran,    642. 

.\rmstrong  v.  Morrill,    496,    377. 

Armstrong  v.   Ross,    218,    217. 

Armstrongs.   Warrington,    273,  ,272. 

Armstrong  v.  Wheeler,    139. 

Armstrong  v.  Wilson,    75. 

Arnold  v.  Arnold,     86,    294. 

Arnold  v.  Bennett,    466. 

Arnold  v.  Brown,   39. 

Arnold  v.  Congreve,    399. 

Arnold  v.  Foote,    444. 

Arnold  v.  Green,  278. 

Arnold  v.  Mattison,    233. 

Arnot  V.   Post,   254. 

Arnold  v.    Richmond   Iron   Works,   557. 

Arnold  v.  Townsend,     5o6. 

Arnold  v.   Woodward,     158,     497. 

Arnold  v.  Wainwright,    185. 

Arnold  v.  Waltz,   12o: 

Arnold  v.  Woodward,    157. 

Arthur  v.  Weston,    562. 

Arundell  v.   Phillpot,    418. 

Ascaretc  v.   Pfaff,    149. 

Asch   V.    Asch,    118. 

Ashbey  v.    Ashbey,  264. 

Ashcroft  V.    E.  R.  Co.,  430. 

Asheville    Division   z'.    Aston,    30. 

Ashland   v.    Griener,    205. 

Ashley  v.  Warner,    163,   211. 

.Ashman  v.   Harrison,    421. 

Ashmun  v.   Williams,    466. 

Asfaton  V.  Tugle,   123. 

Ashton  V.    Shepherd,  ,233. 

Ashurst  V.  Givens,   341,   366. 

Ashville  Div.  v.   Aston,   562. 

Ashwell  V.  Ayers,    572. 

Askew  V.  Askew,   105. 

Askew  V.   Daniel,  5.'8. 

Aspden  v.   Austin,    143. 

Aspinwall  f.   Duckworth,    648. 

Assay  v.  Hoover,  632. 

Astor  V.  Hoyt,    139. 

Astor  V.   Miller,   139,   626. 

Aston  V.  Ttirner,    245. 

Aston  V.  Wells,   584. 

Astrom  v.   Hammond,   521. 

.Athens  v.   Nale,  620. 

Atkins  V.   Atkins,    96. 

Atkins  V.   Chilson,    68. 

Atkins  V.   Kinnan,  530. 

Atkins  V.   Sawyer,    239. 

-Atkins  V.   Ycomans,    111. 

Atkinson  v.   Baker,     47. 

Atkinson  v.   Dixon,    18. 

Atkinson  v.   Hewett,   259. 

Atkinson  v.   Jackson,   97. 

-Atkinson  v.  Orr,    460. 

.Atkinson  v.   Sinnott,     658. 

Atlantic  Dock  Co.  v.   Leavitt,  253,  .';72. 

Atlantic  S.   D.  &  T.  Co.  t-.  Atl.   City   L. 

Co.,   11. 
Atlas   Bank  v.   Nahant   Bank,  209. 
Atlee  V.  Bullard,   124. 


Atmore  v.  Walker,    301. 

Attersoll   z:    Stevens,    66,    300. 

Attaquin  z'.   Fish,   68. 

Attorney    General  v.   Chambers,    489. 

Atty.    Gen.  v.     Gill,    397. 

Atty.  Gen.  v.  Jolly,    641. 

Atty  Gen.  v.   Merrimack,   509,   211: 

Atty.   Gen.  v.   Moore,    641. 

Attorney  General  v.    Parmort,    238. 

Atty.   Gen.  v.   Trinity    Church,    641. 

Atty.   Gen.   v.   Vigor,   241. 

Atty.  Gen.  v.   Williams,    433. 

-Atty.   Gen.   v.   Winstanley,    276. 

Atwater  v.   Bodfish,    428. 

Atwood  V.  Atwood,    91. 

Aubin  V.   Daly,    86. 

Alldays  v.  Whittaker,    193. 

Auding  V.  Davis,     247. 

Auer  V.   Brown,    407. 

Augustus  V.   Seabolt,    296,    471. 

Aull  V.   Lee,    236. 

Aultman  &  Taylor  Co.  v.  Jenkins,  ISO. 

Aultman,   Miller  &  Co.  v.   Price,    122. 

Auriol  V.   Mills,    143. 

Austin  V.   Austin,    237. 

Austin  V.    Burbank,    251,    274. 

Austin  V.  Cambridgeport    Parish,   201,  202. 

Austin  V.   Coal    Co.,    131. 

Austin  V.   Downer,    230. 

Austin  V.  Hall,    178. 

Austin  V.   Hudson,    66,    300. 

Austin  V.   Lauderdale,    218. 

Austin  V.   R.    R.,    195. 

Austin  V.    Rutland,    186,    600. 

Austin  V.   Sawyer,    506. 

Austin  V.   Stanley,    123. 

Austin  V.    Stevens,    53,    66. 

Antrim    Iron   Co.  v.   Anderson,   563. 

Averill  v.    Guthrie,    262. 

Averill  V.  Taylor,    136. 

-Avery  z'.   Dougherty,    144. 

Avery  v.   Everett,    640. 

Avery  v.  Judd,    243. 

Avery  v.   N.    Y.    Cent.    &    C.    R.    R.    Co., 

433,    626. 
.\vcry  V.    Stewart,    374. 
Averett  v.   Ward,   273. 
Avon    Co.  V.   Andrews,    606. 
Axman  v.   Smith,    277. 
Aycock  V.   Kimbrough,    193. 
Aycr  V.   Ayer,    360. 
Ayer  v.   Emery,    201,   627. 
Ayers  v.  Hays,   264. 
Aymar  v.    Bill,   250. 
Ayres  r.  Duprey,  583. 
Ayres  v.   Falkland,    291. 
Ayres  v.  Waite,   247. 


Bahat  Co.  v.  Thorley,    152. 
Babb  V.   Perley,   69. 
Babbitt  v.   Day,    86. 
Babbit  v.    Scroggin,    181. 
Babcock  v.   Nuer,    498. 
Babcock  v.   Wyman,  233. 
Babcock  v.   Lisk,    236. 
Babcock  v.   Scoville,   139. 
Backhouse  v.   Bonomi,    448. 
Backhouse  v.  Charlton,  216. 
Backus  V.  McCoy,    614. 

XXXV 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Bacon  r.   Bowdoin,   265,   606. 

Uacon  f.   Cottrill,   201». 

Bacon  f.   Kennedy,  »'7S. 

Bacon  r.   Lincoln,  615. 

Bacon  t:   Mclntire,  247. 

Bacon   J'.   X.   \V.   Co.,  270. 

Bacon  v.   Smith,  68. 

Bacon  !•.   Taylor,   548. 

Bader  f.    Leise,    497. 

Badgett  f.   Keating,    361. 

Badger  v.   Lloyd,  397. 

Badger  f.  Phinney,    556. 

Badgley  r.    Bruce,  108. 

Badlani  ;■.   Tucker,  203. 

Bacrnitz  f.    Beverly,    255. 

Baggs  f.   Baggs,   389. 

Baggett  T-.   Menx,    348. 

Bagley  r.   Freeman,    139. 

Bagley  r.   Morrill,   603. 

Bagnall  r.   Davics,  433. 

Bagnell  i\   Broderick,    519. 

Bagot  f.   Bagot,  62. 

Bailey  v.   Bailey,    233. 

Bailey  v.    Butler,    272. 

Bailey  r:   Carleton,    494. 

Bailey  v.   Delaphine,   156. 

Bailey  v.   Dolittle,  533. 

Bailey  v.   Dunlap    Co.,    123,    124. 

Bailey  v.  Gould,  250. 

Bailey  v.   Mercantile    Co.,    121. 

Bailey  v.   Myrick,    246,    285. 

Bailey     v.   Richardson,    139,    242. 

Bailey  v.   Sissan,    194. 

Bailey  v.    Wells,   155,  156. 

Bailey  v.  White,   603. 

Bailey  v.   Winn,    368. 

Bain  v.   Clark,   151. 

Bain  v.   Stoob,    31. 

Bainbridge  v.   Owen,    246. 

Baine  v.   William,    290. 

Baker  v.   Bishop  Hill   Colony,   238. 

Baker  r.   Brown,    373. 

Baker  v.  Crosby,  439. 

Baker   v.   Dening,    571,   632. 

Baker  v.   Fireman's  Fund  Ins.   Co.,  231. 

Baker  v.   Flood,  268. 

Baker  v.   Gostling,    149. 

Baker  v.   Hall,    577. 

Baker  v.   Haskell,    576,    578. 

Baker  r.   Jordan,    2. 

Baker  v.   Kenney,     169,    170. 

Baker  v.  Lcibert,  86. 

Baker  v.   McClurg,  18. 

Baker  v.   N.  W.  Guaranty  Loan  Co.,  257. 

Baker  v.  Oakwood,  80. 

Baker  v.   Pratt,   156. 

Baker  v.   Scott,  273,   321. 

Baker  v.   Swan,   494. 

Baker  v.  Talbon.   595. 

Baker  v.   Terrell,   251. 

Baker  v.  Thra.sher.    231. 

Baker  r.   Vining,   367. 

Baker  r.   Whiting.    368. 

Baker  v.  Wind,    229. 

Bakewell  r.    McKee,    494. 

Baldwin  v.   Baldwin,   640. 

Baldwin  v.   Humphrey,    373. 

Baldwin  v.  Jenkins,    239. 

Baldwin  v.   Porter,    377. 

Baldwin  v.  Thomas,    122. 

Baldwin  v.  Tucker,    401. 

xxxvi 


Baldwin  v.  Tuttle,    566. 

Balen  v.    Mercier,    238. 

Balfer  v.   Willigrod,    373. 

Balfour  v.    Davis,    272. 

Ball  V.   Ball,    79. 

Ball  V.   CuUimore,    162. 

Ball  V.    Deas,    176. 

Ball  V.   Duntersville,    571,    509. 

Ball  V.  Gaflf,    366. 

Ball  V.   Hill,    218. 

Ball  V.    Palmer,   498. 

Ball  V.   Wool  folk,    83. 

Ball  V.   Wyeth,   236. 

Ballantine  v.   Poyner,    62. 

Ballentine  v.   Wood,    302. 

Ballard  v.    Ballard,    302. 

Ballard  v.    Bowers,  87. 

Ballard  v.  Tyson,   438. 

Ballinger  v.   Choultan,  269. 

Ballou  V.    Ballou,   190. 

Ballou  r.   Carton,   156. 

Baltimore  v.   Porter,   402. 

Bait.  &  O.   R.   R.   Co.  v.   Patterson,  45.    -« 

Baltimore    &    Ohio    Co.  v.   Winslow,    134, 

135. 
Baltimore     Dental    Ass'n  v.   Fuller,     168, 

169. 
Baltimore,    etc.,    Co.,   z:   White,    586. 
Bancroft    v.    Ives,    647,    471. 
Bancroft  v.  Wardell,    166. 
Bancroft  v.   White,     92. 
B.nnd  v.   Godson,    84. 
Bane  v.   Bean,   434. 
Bank  v.   Campbell,    583. 
Bank  v.   Eastman,    518. 
Bank  v.    Hillingsworth,    123. 
Bank  v.   Kusworm,    257. 
Bank  v.   Lee,    562. 
Bank  v.   North,   290. 
Bank  v.   Ogden,    601,    487. 
Bank  v.    Ragsdale,     249. 
Bank  v.    Rose,    256. 
Bank  v.   Sargent,   257. 
Bank  v.    Sutton,    369. 
Bank   of   Albion  v.   Burns,   286. 
Bank   of   Augusta  v.    Earle,    453. 
Bank   of    Buffalo  v.   Thompson,    236. 
Bank   of   Commerce  v.   Owens,   87,   90. 
Bank   of    Cumberland  v.   Bugbee,    572. 
Bank  of  Napa  v.   Godfery,   272. 
Bank   of   N.    S.  v.   Houseman,   329,    54. 
Bank  of  Ogdensburg  v.    Arnold,  245,  27?. 
Bank    of    Penn.  v.   Wise,    149. 
Bk.   of   S.   C.  V.   Campbell.    286. 
Bank    of    S.    C.  v.   Mitchell,    290. 
Bank    of    Springfield  v.   W.     R.    R.    Co., 

368. 
Bank  of  State  v.   S.   C.   Man.   Co.,   585. 
Bank   of    Ukiah  v.    Rice,   373. 
Bank    of    United    States  v.    Dunseth,    113. 
Bank   of   Washington  v.   Hupp,   245. 
Banning  v.    Edes,     576. 
Bannon  v.   Comegys,   195. 
Banta  v.   Maxwell,    278. 
Baptist   Ass.  v.  Hart,    641. 
Bar  V.   Galloway,    80. 
Barber  v.   Pittsburg,  etc.,  Ry.  Co.,  40. 
Barber  v.   Schaffer,    494. 
Barclay   v.    Goodloe's    Excr.,    377. 
Barclay  v.   Kerr,   195. 
Barcus  v.  Crump,    388. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sectio7is.] 


Barden  v.   Northern   Pac.   Co.,   5. 

Barger  v.   Hoffs,  494. 

Barker  v.   Barker,    126,    236. 

Barker  v.   Bell,    583,    649. 

Barker  v.   Blake,   109. 

Barker  v.   Dayton,    127. 

Barker  v.    Deignan,    495. 

Barkley  v.   Dosser,    381. 

Barker  v.   Flood,    242. 

Barker  v.   Greenwood,   341. 

Barker  v.  Jones,    187. 

Barks  v.   Mitchell,    504. 

Barker  v.   Salmon,    516. 

Barker  v.   Southerland,    310. 

Barkley  v.   Tieleke,    2. 

Barlow  v.   Cooper,     251. 

Barlow   v.    McKinley,    617. 

Barlow  v.   Rhodes,    428,    427. 

Barlow  v.   St.    Nicholas    Bank,   617. 

Barlow  v.    Wainwright,    134. 

Barnard  v.   Edwards,    101. 

Barnard  v.   Poor,   66. 

Barnard  v.    Peterson,   269. 

Barnard's    Heirs  v.    Ashley's    Heirs,    522. 

Barnes  v.   Addy,    368. 

Barnes  v.   Boardman,   31,   253. 

Barnes  v.   Dow,   372. 

Barnes  v.   Lloyd,  431. 

Barnes  v.   Lynch,    189. 

Barnes  v.   Roper,   91. 

Barnes  v.  Syester,  633. 

Barnes  v.  Taylor,    368. 

Barnet  v.   Barnet,   202. 

Barnett  v.   Bamber,    368. 

Barnett  v.   Denniston,     242. 

Barnett  v.   Dougherty,    368. 

Barnes  v.   Lee,    240. 

Barnett  v.   Wilson,   265. 

Barney  v.   Arnold,    392. 

Barney  v.   Frowner,   110. 

Barney  v.   Keokuk,    599. 

Barney  v.   Leeds,    122. 

Barney  v.  McCarty,    584. 

Barney  v.   Myers,    285. 

Barney  v.   Pike,   184,   185. 

Barneycastle  v.   Walker,    144. 

Bamitz  v.    Beverly,    225. 

Barnsball  v.  Boley,    134. 

Barnum  v.   Phenix,    253. 

Barr  v.   Butin,    635. 

Barr  v.   Flynn,    439. 

Barr  v.  Gratz,    493,    491. 

Barr  v.  Hatch,    417. 

Barr  v.   Schroeder,    561. 

Barr  v.  Van    Alstine,    273,    255. 

Barrett  v.   Armstrong,    283. 

Barren  r.    Babcock,    191. 

Barrett  v.   Bamber,   368. 

Barrett  v.   Failing,    98. 

Barrett  v.   French,   541. 

Barrell  v.  Joy,   373. 

Barrett  v.   Nielson,    246. 

Barrett  v.  Wright,    640. 

Barricklon  v.   Stewart,    631. 

Barron  v.  Martin,    247. 

Barron  v.   Paulling,   246. 

Barron  v.   Richards,   626. 

Barruss  v.  Madan,   202. 

Barry  v.    Guild,   272,   619. 

Barson  v.  Mulligan,   292. 

Barteau  v.  West,  441. 


Barthelomew  ^'.   Candee,   614. 

Bartholomew  v.    Edwards,    496. 

Bartlett  v.    Bartlett,    329. 

Bartlett  v.    Drake,    571. 

Bartlett  v.   Drew,    365. 

Bartlett  v.   Prescott,    4:50. 

Bartlett  v.    Sanborn,   272. 

Bartlett  v.   Secoe,    498,   497. 

Bartlett  v.  Tinsley,   91. 

Barton  v.  May,   266. 

Barton  v.   Smith,    166. 

Barton  v.   Tuttle,   640. 

Barwick  v.   Miller,    482. 

Bascom  v.    Albertson,    629,    641. 

Basford  i:   Pearson,   553,  615. 

Baskin  v.    Baskin,   633. 

Bason  v.   Henkle,   68. 

Bass  V.   Scott,   347. 

Bassett  v.    Bassett,    554,    565. 

Bassatt  v.   Gallagher,   234. 

Bassett  v.    Brown,    560. 

Bassatt  v.    Hawk,    32-..'. 

Bassett  v.   Shoemaker,    368. 

Bassett  v.  Wood,   586. 

Batchelder  v.   Dean,   130. 

Batchelder  v.   Sturgis,    617,   6S5. 

Bates  V.   Bates,   86,  121. 

Bates  V.   Boston,   572. 

Bates  V.   Foster,    623,    622. 

Bates  V.  Gillett,   30]. 

Bates  V.   Hurd,    374. 

Bates  V.  Miller,     273. 

Bates  V.   Norcoss,    582. 

Bates  V.  Tymanson,   595. 

Bath  V.   Valdez,   497.   498. 

Batstone  v.   Salter,    367. 

Battey  v.   Hopkins,    356. 

Battin.!*.   Woods,    187. 

Batting  v.   Martin,   167. 

Battle  V.   Petway,    382. 

Battorf  V.   Conner,   221. 

Batty  V.   Snook,    234. 

Bannister  v.    Demuth,   275. 

Baum  V.   Grisby,    218. 

Baum  V.  Tompkin,    236,   276. 

Baumgardner  v.  Allen,    253. 

Bauskitt  v.   Keitt,    645. 

Bausman  v.   Kelly,    278. 

Bautell  V.   Gouge,  88. 

Baxter  v.   Arnold,    433. 

Baxter  v.   Bradburv,    471,    621. 

Baxter  v.   Child,    234. 

Baxter  v.   Dyer,    239. 

Baxter  v.   McTntire,    236. 

Bay  V.   Williams,    253. 

Bayer  v.  Cockerill,    348. 

Bayer  v.   Schultze,   619. 

Baykin  v.   Rain,   84. 

Bayler  v.   Commonwealth,    238,    564. 

Bayles  v.  Huntell,   258. 

Bayless  ■:•.    Rupert,   596. 

Bayley  v.   Greenleaf,    217,    583. 

Bayley  v.   Lawrence,    152. 

Baylis  i>.  Young,   582. 

Baynard  v.   Woolley,    213. 

Baytcr  v.   Mclntire,  236. 

Beach  v.   Beach,    380. 

Beach  v.   Dyer,    368. 

Beach  v.  Gaylord,    445. 

Beach  v.  Miller,    617. 

xxxvii 


TABLE  OP   CASES   CITED. 


[References  are  to  Section^.] 


Beahan  v.  Sapleton,   505. 
Beal  V.   Boston,   etc.,    Cor.    Co.,    139,   156. 
Beal  V.   Congdon,   264. 
B«al  V.  Warren,   558,    556. 
Bealey  t'.   Shaw,   444. 
Beall  V.   Davenport,  157. 
Bealor  v.   Hahn,   84. 
Beals  V.   Cobb,   206. 
Beals  V.  Storm,    637. 
Bearnan  i".   Whitney,    574. 
Bean  v.   A.  &   St.    L.   R.    R.,   248. 
Bean  v.   Boothby,  558,  242. 
Bean  r.    Dickerson,    147. 
Bean  v.   French,  608. 
Bean  i".   Kenmine,   562. 
Bean  v.   Mayo,    617. 
^Beane  v.   Yerby,    633. 
Bear  f.   Snyder,   109. 
Bear  v.   Stahl,   86. 
Bear  v.   Whistler,    217. 
Bear  Valley  Coal   Co.  v.   Dewart,  493. 
Beard  v.   Blum,   126. 
Beard  v.    Fitzgerald,   284,   285. 
Beard  v.   Johnson,     123. 
Beard  v.   Knox,  85. 
Beard  v.   Murphy,    448. 
Beard  v.    Ryan,    498,    504. 
Beard  v.   Westcott,   399. 
Beardman  v.   Wilson,    139. 
Beardslee  v.   Beardslee,   99. 
Beardslee  v.    Knight,  199,   572. 
Beatty  v.   Clymer,    53,    505. 
Beatty  v.   Gregory,  467. 
Beatty  v.   Mason,    497. 
Beatty  v.   Richardson,    98. 
Beaumont  v.  Keim,    649. 
Beavan  v.   Earl   of   Oxford,   583. 
Beaver  v.   Beaver,    374. 
Beavers  v.    Smith,    113. 
Beck  V.   Metz,    471. 
Beck  V.   Rebow,    16. 
Becker  v.  Hibbard,   497. 
Becker  v.    Howard,    231. 
Beckett  v.   Vanvalkenburg,    505. 
Beckford  v.    Beckford,    367. 
Becklenberg  v.   Becklenberg,   71. 
Beckley  v.   LeffingWell,    310. 
Beckman  v.   Saratoga,   454. 
Beckwith  v.   Beckwith,    92. 
Beckwith  v.   Frisbie,   560. 
Beddoe  v.   Wadsworth,   614,  624. 
Bedford  v.   Graves,    367. 
Bedford  v.   Jenkins,  322. 
Bedford  v.   McElheron,    158. 
Bedford  v.  Terhune,  165,  139. 
Bedinger  v.  Wharton,    556. 
Beebe  v.  Louisville   R.    R.   Co.,  196. 
Beebe  v.  Lyle,    87. 
Beebe  v.  McKenzie.    631. 
Beecher  v.   Hicks,    365. 
Beecher  v.  Parmelee,   173. 
Beeckman  v.   Butler.   242. 
Beedy  v.   Finney,   126. 
Beekman'v.    Frost,     584. 
Beeler  v.   Mercantile  Co.,   12. 
Beem  v.  Lockhart,   685. 
Beeman  v.  Kitzman,   107,   100. 
Beers  v.  Beers,    66. 
Beers  v.   St.    John,    66. 
Bezein  v.   Brehm,  264. 
Behm  v.  Molly,   367. 

xxxviii 


Behymer  v.   Odell,    608. 

Bevms  Ex'rs  v.  Von  Ahlefeldt,  84, 

Beiser  v.    Beiser,    577. 

Belcher  v.   Weaver,    97. 

Belcher   Land  &   Mtg.   Co.  v  Norris,  2£ 

Belden  v.  Meeker,  '261,    582. 

Belden  v.   Young,    122. 

Belding  v.   Manley,    251. 

Belknap  v.   Belknap,   191. 

Belknap  v.    Dennison,    242. 

Belknap  v.   Trimble,   197. 

Bell  V.    Bosley,   126. 

Bell  v.   Bruhn,    168. 

Bell  V.   Denson,    504,    495. 

Bell  V.   Ellis,    166. 

Bell  V.   Fleming,    261,    236. 

Bell  V.   Fowler,    640. 

Bell  V.   Keefe,    572. 

Bell  V.   Mayor,    54,    258. 

Bell  V.   Nealy,    98. 

Bell  V.   New    York,    118. 

Bell  z:    Pelt,    228. 

Bell  V.   Shrock,    274. 

Bell  V.   Twilight,    582. 

Bell  V.   Wise.    125. 

Bell  V.   Woodward,   242,    592. 

Bell    Co.  V.   Alexander,    641. 

Bellamey  v.    Brickenden,   248. 

Bellas  V.   McCarthy,    35,    585. 

Bellows  V.   Jewell,    494. 

Belmont  v.   Coman,    253,    619. 

Beiser  v.    Moore,    429. 

Belton  V.   Avery,    230. 

Bemis  v.   Call,    257. 

Bemrs  v.   Wilder,    148. 

Benbow  v.   Townsend,    367. 

Bender  v.   Terw'Iliger,    195. 

Benedict  v.   Marsh,   13,   170. 

Benfield  v.    Benfield,   76. 

Benham  v.    Rowe,   269. 

Benjamin  v.    Elmira,   etc.,   R.    R.,   238. 

Benlow  v.    Bobbins,    429. 

Bennett  v.  Austin,  368. 

Bennett  v.   Bittle,    153. 

Bennett  v.   Calhoun  Ass'n,   273. 

Bennett  v.   Child,    181. 

Bennett  v.   Clemence.    186,    495. 

Bennett  r.    Davis.    79. 

Bennett  7'.    Dollar    Sav.    Bk.,    368. 

Benney  ?'.    Foss.     66. 

Bennett  v.   Holt,    231. 

Bennett  v.   Hudson.   126. 

Bennett  v.   Peirce,    186,    372. 

Bennett  v.    Robinson.    172. 

Bennett  v.  Washington    Cemetery    204. 

Bennett  z'.   Williams,   559. 

Bennock  Z'.  Whipple,   163,    229. 

Bensell  v.   Chancellor.     556. 

Bensley  v.   Atwill,   578. 

Benson  v.   Boiler,    139. 

Benson  v.    Stewart,    498. 

Bent  V.    St.     Vrain,     482. 

Bentley  v.   Callahan,    186. 

Bently  v.   Long,    301. 

Bentley  z>.   O'Brine.     233. 

Benton   Co.  v.   Czarlinski,    236,    247. 

Benton   Land   Co.  v.  Zeitner,   236,   248, 

Berg  7.'.   Anderson.    393. 

Berg  V.   Shipley,    586. 

Bergen  v.   Bennett,    410,    569. 

Bergen  v.  Meehan,   57,   62. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Berman  v.    Beecher,    493. 

Bernard  v.   Patterson,     246. 

Bernard  v.   Jennison,    246. 

Bernheimer  v.   Adams,     18. 

Berm  v.    Boyer,    134. 

Bernos  v.   Cowpa,    430,    452. 

Bernstein  v.   Humes,    559. 

Berly  v.   Taylor,    373. 

Berridge  v.   Glassey,    132. 

Berrien  t.    McLane,    376. 

Berry  v.    Anderson,    576. 

Berry  v.    Billings,    609. 

Berry  v.   Lewis,    307. 

Berry  v.   Mutual   Ins.    Co.,   214. 

Berry  v.    Skinner,    277. 

Berry  v.    Snyder,   599. 

Berry  v.  Taunton,    141. 

Berry  v.   Todd,   450. 

Berry  v.   Whidden,     191. 

Berry  v.   Williamson,    322. 

Berryman  v.   Schumacher,     201. 

Berthold  v.   Fox,    243. 

Bertie  v.   Abingdon,     38. 

Beshore  v.   Lyle,    214. 

Besland  v.   Hewitt,   217. 

Resser  v.   Hawthorne,    243. 

Best  V.    Best,    204,    406. 

Bessell  v.   Landburg,    164. 

Best  V.   Nagle,   205. 

Best  V.   Sanders,    195. 

Bethlehem  v.   Annis.  209. 

Bethlehem  v.   Annis,    237. 

Bethlehem    Borough   v.    Perseverence  Fire 

Co.,   340. 
Betsey  v.   Lorance,   559. 
Betts  V.   Sims,    126. 
Bettison  v.   Budd,    157. 
Betr  V.   Verner,     13. 
Beuneson  v.   Savage,    277. 
Bevans  v.   Briscoe,    59. 
Bevier  v.   Schvonmaker,   281. 
Beyant  v.   Russell,   373. 
Bibb  V.   Baker,    260. 
Bibb  V.    Reid,   579. 
Bickett  V.   Morris,    447. 
Bickford  v.   Daniels,    229. 
Bickford  v.   Page,     624. 
Biddle  i\   Hussman,   152. 
Bidleman  v.   Brooks,   532, 
Bigelow  V.   Bush,     273. 
Bigelow  V.   Foss,    510. 
Bigelow  V.  Hubbard,    617. 
Bieelow  r.  Jones.    186. 
Bieelow  v.  Littlefield,   198. 
Bifelow  V.   Stringfellow,    278. 
Bieelow  v.  Topliff,   228. 
Bigelow  V.  Wilson,   252,  239. 
Biggars  v.   Bird,    233. 
Biggins  V.   Bradley,    619. 
Biggins  V.   Lambert,    418,   418. 
Bigler  v.  Waller,    278. 
Bieley  v.  Watson,    44. 
Biiam  v.  Bichford,    190. 
Billard  v.   Child,    614. 
Billings  V.   Sprague,   286. 
Billings  V.  Taylor,   105,   64. 
Billington  v.  Welsh,   586. 
Bingham  v.   Wciderwax,    626. 
Bingham  v.  Weller,   321,   79. 
Binkley  v.   Forkner,    13,    15. 
Binswanger  v.  Hinnenger,    178,    191. 


Birch  V.   Sherratt,   464. 

Birch  V.   Wright,    247. 

Bircher  v.   Parker,    170. 

Bird  V.   Bird,    191. 

Bird  V.    Decker,    239. 

Bird  V.   Wilkinson,     233. 

Birdsall  v.   Philips,    168. 

Birmingham  r.    Rogers,     160. 

Birney  v.   Dann,    614. 

Birnie  v.   Main,    236,    582. 

Biscol  V.    Biscol,    399. 

Bishop  V.    Bishop,    14. 

Bishop  V.   Chase,     249. 

Bishop  V.   McClelland's    Exrs.,    179. 

Bishop  V.   Schneider,    581,     584. 

Bisland  v.   Hewett,    108. 

Bissell  V.   Marineco,    273. 

Bissell  V.   N.   Y.   Cent.    R.   R.,  601. 

Bitner  v.    Bitner,    637. 

Bitter  v.   Seathoff,    497. 

Bittinger  v.   Baker,    59. 

Bixler  v.   Sayler,    623. 

Bizzell  V.   Nix,   218. 

Black  V.    Black's   Adm'r,   127,    197. 

Black  V.   Curran,    121. 

Black  V.   Gregg,    228. 

Black  V.   Golden,   160. 

Black  V.   Lamb,    576. 

Black  V.   Shreve,     578,     579. 

Black  V.   Webb,    45,   211. 

Black  V.   Williams,   27,   393. 

Blackburn  v.   Gregson,   217. 

Blackburn  v.   Warwick,    234. 

Blackford  v.   Almstead,    553. 

Blackmore  v.    Boardman,    147. 

Bl.ickstone  Band  v.   Davis,   203,   204. 

Blackwell  v.    Broughton,    122. 

Blackwood  v.   Van    Fleet,    243. 

Blade  v.   Sanborn,   274. 

Blagge  V.   Miles,   413,  647. 

Blain  v.   Stewart,    574. 

Blain  v.    Stoab,    34. 

Blair  v.   Blair,     283. 

Blair  v.   Harris,     236. 

Blair  v.  Johnson,    491,  •498. 

Blair  v.   Rivard,    275. 

Blair  v.    Smith,    507. 

Blair  v.   Ward.    582. 

Blair  v.   White.     251. 

Blaisdell  v.    Railroad,     465,    468. 

Blaisdell  v.    Stephens,    435. 

Blake  v.   Fash,    518,   576. 

Blake  v.   Graham,    582. 

Blake  v.   Irwin,   420. 

Blake  v.   Ravons,    146. 

Blake  v.   Sanderson,    140. 

Blake  v.  Tucker,    512. 

Blake  V.   Williams,    251. 

Blakely  v.   Colder,    195. 

Blakeney  v.    Ferguson,    96. 

Blanchard  v.   Blanchard,    297. 

Blanchard  v.   Blood,    72. 

Blanchard  v.   Brooks,    512,    619. 

Blanchard  v.   Ellis,    514,    625. 

Blanchard  v.   Evans,  509. 

Blanchard  v.   Kenton,    233. 

Blanchard  v.   Morey,     202. 

Blanchard  v.   Porter,   599. 

Blanchard  v.    Sheldon,    373. 

Blnnche  v.   Rogers,    15. 

Bland  v.   Windsor,   512. 

xxxix 


TABLE  OF   CASES   CITED, 


[References  are  to  Sections.] 


Blaney  v.  Hanks,  518. 

Plancy  v.   Tearce,   239. 

Blaney  i:   Rice,    603. 

lilankonhorn  i:   Lennox,    186. 

Blankenpicker  r.  Anderson's   Heirs,    521. 

Blankensliip  v.   Stout,    557. 

Blankhead  v.  Owen,    217. 

Blantin  v.  Whittaker,     157. 

Blauvelt  v.  Ackerman,    368. 

Blauvelt  v.   Van    Winkle,    463. 

Bledsoe's   E.x'r  j'.    Bledsoe,  637. 

Bledsoe  v.   Beiler,    625. 

Bleccker  v.   Smith,    148. 

Bleeker  v.  Graham,    281. 

Blethers  v.   Dwindal,    272. 

Blevins  v.   Rogers,    219. 

Blight's    Lessee  v.   Rochester,    157. 

Blinton  v.   Hope   Ins.   Co.,   248. 

Bliss  V.   Am.    Bible    Soc.,    641. 

Bliss  r.  Johnson,    504. 

Bliss  f.   Kennedy,    606. 

Bliss  V.   Matteson,     368. 

Block  V.    Pfaff,    595,    603. 

Blockley  v.    Fowler,     279. 

Blodgett  V.    Hildreth,     622. 

Blodgett  V.  Moore,    647. 

Blood  V.   Blood,    76,    581. 

Blood  V.  Goodrich,    569. 

Blood  V.   Wood,    495. 

Bloodgood  V.   Mohawk    Railroad,    454. 

Bloome  v.   Waldron,     407,    411. 

Bloomer  v.    Burk,     235. 

Bloomingdale  v.   Bowman,    250. 

Blow  V.    Vaughn,    590. 

Blume  V.   Vaughn,    590. 

Blume  7'.   Kramer,   276. 

Blunt  V.   Syms,    244. 

Blythe  v.    Dargin,     558. 

Board  r.   Nelson,    647. 

Board,    etc.,  v.  Trustees,    202,    627. 

Boardman  v.   Dean,    565. 

Boardman  v.  Osborn,    152,    154. 

Boardman  v.    Reed,    552,    596. 

Boardman  v.   Wilson,     139. 

Boarman  v.   Catlett,   255. 

Bobb  V.   Bobb,   509. 

Bobbles  v.   Munnerlyn,    273. 

Bodine    .Adm'r  v.   Arthur,    562. 

Bodwell  r.    Nutter,     367. 

Bodwell  V.   Webster,    229. 

Boester  v.   Bryne,    275. 

Bogan  z>.   Frisby,   581. 

Bogardus  v.   Trinity   Church,   186,    561. 

Bogey  V.   Shoab,    512. 

Bogey  V.    Shute,    273. 

Boggs  V.   Merced    Co.,    510,    579. 

Bogg  V.   Varner,   585. 

Bogie  7:   Rutledge,   94. 

Boclino  V.   Giorgetti,    489. 

Bohannon  v.   Combs,   97. 

Bohannon  v.   Wolcot,  646. 

Bohier  v.  Lange,    605. 

Bohlen  v.    Arthurs,    191. 

Bohn  V.   Davis,    279. 

Boho  V.   Richmond,    497. 

Boies  V.  Gardner,    260. 

Boland  v.   Nichols,    118. 

Bold  V.  O'Brien,    146. 

Boldry  v.   Parris,    633. 

Bole  V.  Todd,    430. 

Boley  V.   Barntis,    191. 

Xl 


Boll  V.  Woolfolk,    31. 

Bolles  V.   Carli,    253. 

Bolles  V.    Duflf,    246,    272. 

Bolles  V.     Smith,   642. 

Bolles  V.   State  Trust  Co.,  361. 

Bolles  V.   Wade,   257. 

Bollinger    Co.  v.   McDowell,    590. 

Bolton  V.   Carlisle,    554. 

Bolster  v.   Cushman,    92. 

Bolten  V.   Landers,     163. 

Bolton  V.   Lann,    595. 

Bond  V.   Bond,    557. 

Bond  V.    Bunting,    373. 

Bond  r.   Coke,    606. 

Bond  V.   Fay,    590,    592. 

Bond  V.   Montgomery,    121. 

Bond  Ass'n  v.   Klee,    257, 

Bonds  V.   Smith,    157. 

Bonneck  v.   Kennebeck    Purchase,    195. 

Bonnecaze  v.    Beer,     151. 

Bonnell  v.   Smith,    126. 

Bonner  v.   Bonner,   193. 

Bonner  v.    Peterson,    90. 

Bonson  v.    Williams,    213. 

Boob  V.  WolfT,  233. 

Boody  V.   Davis,   233. 

Boody  V.   McKenney,    557. 

Boogher  v.   Neece,    492. 

Book  V.   Dessley,   233. 

Booker  v.   Crocker,    247. 

Booker  v.   Stevender,  516. 

Bool  V.   Mix,    556. 

Boond   Sup.   Warren   Co.  v.   Gans,   57. 

Boone  v.    Boone,   118. 

Boone  v.   Bank,    301. 

Boone  7\    Childe,   376,   368. 

Boone  z'.   Clark,   253,   256. 

Boone  v.    Moore,    562. 

Boone  v.    Stover,    17. 

Booth  V.    Booth,    276. 

Booth  V.    Patte,    592. 

Booth  V.    Starr,    616. 

Booth  V.    Terrell,  296. 

Boothby  v.    Dathaway,    614. 

Boothe  r.    Best,    497. 

Boothroyd  v.    Endes,    562. 

Boots  v.  Gooch,   70. 

Bopp  V.    Fox,    185. 

Borah  v.   Archers,   197. 

Borehan  v.    Byrne,    126. 

Borggard  v.    Gale,    134,    146. 

Borrochlow  v.    Stewart,    633. 

Borror  v.    Carrier,    217. 

Boskowitz  7'.   Davis,     367. 

Bosley  v.   Bosley,     648. 

Bosley  v.   McGough,    637. 

Bosley  v.   Schanner,    560. 

Bosquett  v.   Hall,  122. 

Bosse  7'.   Gallagher,    272. 

Bosse  V.  Johnson,   239. 

Bossier  v.   Herwig,    177,    187. 

Boston  V.    Binney,     157,    163. 

Boston  V.    Richardson,    602,    598. 

Boston  V.   Worthington,    624. 

Boston  &  Lowell  R.  R.  v.  Salem  &  L.   R. 

Co.,    456. 
Boston,  etc..   Trust  Co.  v.  Mixter,  371. 
Boston   Bk.  v.   Reed,  245. 
Boston    Iron    Co.  v.    King,    246. 
Boston     Water     Power    Co.  v.   Boston    & 

W.    R.    R.    Co.,    456. 


TABLE   OP   CASES   CITED. 


[References  are  to  Sections.] 


Bostwick  V.   Leach,    563. 

Bostwick  V.    Williams,     619,     620. 

Boswell  I'.   Goodwin,    263. 

Bosworth  V.   City  of  Mt.  Sterling,  497. 

Bosworth  V.   Danzien,    003. 

Botsford  V.   Burr,   367. 

Botsford  V.  Townsend,    307. 

Bott  i:   Burnell,    629. 

Bottomly  f.    Spencer,    97,    117. 

BottorfF  V.   Lewis,    320. 

Boudinot  V.    Bradford,    649. 

Bouglier  v.   Merryman,   231. 

Bounds  V.   Little,    188. 

Bourland  v.   Kipp,  250. 

Bourn  v.   Gibbs,    298. 

Bourne  v.   Bourne,    239. 

Bourquin  v.   Bourquin,    380. 

Bouscy  V.   Amee,    277. 

Bowden  v.   Parrish,    574. 

Bowditch  V.  Andrew,  382. 

Bowditcli  V.   Eannelos,    377. 

Bowditch    Ins.   Co.  v.   Winslow,    248. 

Bowen  V.   Allen,    040. 

Bowen  v.   Bowen,   207. 

Bowen  v.    Brockenbrough,    87. 

Bowen  v.   Bropan,   54. 

Bowen   i:   Chambers,   572. 

Bowen  v.   Chase,   302. 

Bowen  v.   Guild,    495. 

Bowen  v.   Swander,    179,    191. 

Bowen's   Adm'r  v.   Bowen's  Adm'r,  408. 

Bowers  v.  Johnson,    250. 

Bowers  V.   Kcisecker,    87. 

Bowers  v.   Oysters,  215. 

Bowers  v.   Porter,    321. 

Bowie  V.   Berry,    87,    105, 

Bowles  V.    Rogers,    217. 

Bowln  V.   Lamont,    631. 

Bowman  v.    Lobe,    298. 

Bowman  v.   Manter,    257. 

Bowman  v.   Norton,   126. 

Bowman  v.   Watson,   127. 

Bown  V.   Combs,    247. 

Bown  V.  Leete,   493. 

Bown  V.   Peoples   Ins.   Co.,  248. 

Boxheimer  v.   Gunn,    256. 

Boyce  v.  Coster,    185. 

Boyce  V.   Owens,    558. 

Boyce  v.   Stanton,   368. 

Boyd  V.   Allen,  266. 

Boyd  V.   Baker,   236. 

Boyd  V.   Barnett,    126. 

Boyd  V.   Beck,  247. 

Boyd  V.  Brincken,  368. 

Boyd  V.   Carlton,   105. 

Boyd  V.   Conklin,    445. 

Boyd  V.   England,   361. 

Boyd  V.   McLean,    329,    867. 

Boyer  v.  Amet,    620,    625. 

Boyers  v.   Elliott,   185. 

Boycrs  v.   Newbank,   107. 

Boyken  v.   Boyken,    301. 

Boykin  v.  Ancrum,    322. 

Boylan  v.  Deinzer,    204. 

Boyle  V.  Teller,    156. 

Boylston   Ins.   Co.  v.   Davis,   178,   698. 

Boynton  v.   Ashbromer,   494. 

Boynton  v.   Longlcy,    447,    445. 

Boynton  v.   Peterborough,    471. 

Boynton  v.   Rces,    565. 

fiozarth  v.  Largent,  278,  83. 


Bozarth  v.   Sanders,    275. 

Bozeman  v.   Browning,    556. 

Brabham  v.    Crosland,    640. 

Brace  v.  Marlborough,    262. 

Bracken  v.   Jones,    496,    493. 

Brackett  v.   Baura,    273. 

Brackett  v.   Goddard,    2,    563. 

Brackett  v.   Norcross,    186. 

Brackett  v.   Petitioner,    494. 

Brackett  v.   Ridlon,    582. 

Bradfield  v.   McCormack,    572. 

Bradford  v.   Cressey,    597,    602. 

Bradford  v.   Foley,   308,   309. 

Bradford  v.   Marvin,    217. 

Bradford  v.   Randall,    572. 

Bradford  v.   Street,  408. 

Bradhurst  v.    Field,   118. 

Bradish  v.   Gibbs,    403. 

Bradish  v.   Schenk,    168. 

Bradish  v.   Yocum,     590. 

Bradshaw  v.  Callagban,    195. 

Bradshaw  v.   Crosby,   625. 

Bradshaw  v.   Halpin,    96. 

Bradshaw  v.   Outram,     273. 

Bradley  v.   Bosley,  221. 

Bradley  v.   Bradley,    471. 

Bradley  v.    Chester   Val.    R.    R.,  275,   2  78, 

Bradley  v.   De    Goiconria,    153. 

Bradley  v.   Fuller,  243. 

Bradley  v.   George,    285. 

Bradley  v.   Lightcap,    240,    243. 

Bradley  v.   Piexoto,    33. 

Bradley  z:   Rice,     GOO. 

Bradley  v.   Tittabawassee    Boom    Co.,  608. 

Bradley  v.   West,    493. 

Bradley  v.    Westcott,   4O6. 

Bradley  v.   Wilson,    595. 

Bradlcy*&  Co.  v.   Peabody  Coal  Co.,  292. 

Bradner  v.    Faulkner,    59. 

Bradstreet  v.   Clark,    150,    202. 

Bradstreet  v.    Dunliam,    601. 

Bradstreet  v.   Huntington,    497. 

Brady  v.   Peiper,   156. 

Brady  v.  Waldron,   205. 

Bragg  V.   Geddis,    329. 

Bragg  V.   Lyon,   195. 

Bragg  V.   Paulk,   374. 

Brainard  v.   Boston,  etc.,   Co.,  601. 

Brainard  v.   Cooper,    27.'). 

Braman  v.   Bingham,    579. 

Braman  v.   Dowse,    253. 

Bramtree  v.    Battles,    187. 

Branch    Bk.  v.    Fry,    471. 

Brandt  v.   Foster,  613,   614. 

Brandt  v.   Ogden,    603. 

Brandon  v.   Brandon,    246. 

Brandon  v.   Lcddy,    590,    592. 

Brandon  v.   Robinson,    203,   204. 

Branger  v.   Mancict,    144. 

Brant  v.  Coal    Co..    52. 

Brant  v.  Va.  Coal  Iron  Co.,  406. 

Brant  v.  Gallup,  248. 

Brant  v.   Wilson,    649. 

Brantley  v.   Perry,    466. 

Brantley  v.   Wolf,    556. 

Brashear  v.   Macey,   63. 

Brass  v.    Vandecar,    616,    617. 

Brass    Foundry,    etc..    Works    v,    Gallen- 

tine,   13. 
Brasscon  v.   Lowy,    251. 
Bratt  V.   Bratt,    134. 

xli 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Brattleboro  v.   Mead,  397. 

Bratton  v.   Masscy,   848. 

Bray  v.  Conrad,   86. 

Bray  v.   Ellison,   228. 

Bray  v.   Hussey,    608. 

Braybrokc  v.   Inskip,   241. 

Brayfield  v.   Brayfield,  634. 

Braytor   "v.  Jones,   267. 

Brazee  r.   Schofield,   193. 

Breathitt  v.  Whittake,  644. 

Breckinridge  v.  Auld,  230. 

Breckinridge  v.   Brook,    246. 

Breckinridge  v.   Ormsby,    493,    556. 

Bredenburg  v.   Landrum,  227,  242. 

Breeding  v.    Taylor,    149. 

Breen  v.   Seward,    253. 

Breher  v.   Reese,    156. 

Brennan  v.   Eggeman,    511. 

Bremen  M.  &  M.   Co.  v.    Bremen,   225. 

Breinoman  v.   Schell,    480. 

Breneiser  v.  Davis,    603. 

Brennan  v.   Lachat,   146. 

Bresee  v.  Stiles,  121,  648. 

Breshman    v.    Nugent,    126. 

Bressler    v.    Kent,    558. 

Brethbur   v.    Schorer,    258,    286. 

Brett   V.    Farr,    495. 

Brew  V.    Van    Denman,   626. 

Brewer  v.   Cox,   301,    472. 

Brewer   v.   Connell,    96. 

Brewer  v.    Conover,    166. 

Brewer    z'.    Dyer,    156. 

Brewer   v.    Hardy,    541,    543. 

Brewer  v.   Hyndman,   266,   433. 

Brewer  v.  Marshall,   626. 

Brewer   v.    Vanarsdale,    116. 

Bricc    V.    Sheffield,    590,    592. 

Brice    v.    Smith,    633. 

Brice    v.    Stokes,    380. 

Brice  V.   Taylor,   596. 

Brich   V.   Getsinger,   267. 

Brickett    v.     Spofford,     501. 

Bridgeford  v.    Riddel,   566. 

Bridgeport    v.    Blinn,    255. 

Bridger    v.    Pierson,    608. 

Bridges    v.    Purcell,    466. 

Bridwell    v.    Bridwell,    123. 

Bridwell    V.    Swank,    637. 

Brien  v.    Robinson,   34. 

Brier    v.    Brinkman,   272. 

Brigden    v.    Carhart,    262. 

Bnggs   V.    Hall,    153. 

Briggs   V.    Hill,    219. 

Briggs    V.    Partridge,    569. 

Briggs  V.    Seymour,   254. 

Brigham    v.    Bert   Hospital,   629. 

Brigham    v.    Peter    Bent    Brigham    Hos., 

641. 
Brigham   v.    Potter,   236. 
Brigham    v.    Rean,    494. 
Brigham   v.    Smith,   606. 
Brigham   v.   Winchester,  225. 
Bright   V.   Boyd,   500. 
Bright  V.    Buckman,   238,    586. 
Bright    V.    Larcher,    463. 
Bright  V.   New  Orleans   Ry.   Co.,   602. 
Brightman    v.    Chaping,    438. 
Brightman   v.    Brightman,   298. 
Brillhard    v.    Misch,    195,    307. 
Brinckerhoff    v.    Lansing,    256. 
Brinckerhoff   v.    Remsen,    6?3. 

xlii 


Brindernagle    v.    German     Ref.     Church, 

275. 
Bringloe   v.    Goodson,    405. 
Brinkerhoflf    v.    Elliott,    203.  , 

BrinkerhofF   v.    Marvin,    263. 
Brinkerhoff  v.   Vansciven,    218. 
Brinley  v.  Whiting,  559. 
Brimmer   v.    Longwarf,    493. 
Brinson  &  Co.  v.   Kirkland,   467,   563. 
Briscoe   v.   McGee,    179. 
Briscoe   v.    Power,   283. 
Bristol  V.  Carrol   County,   493. 
Bristow  V.    Warde,    419. 
Brittain  v.   Mull,    114. 
Brixen  v.  Jorgensen,    221. 
Broach    v.    Barfield,    233. 
Broadrup  v.   Woodman,    374. 
Broadwell   v.    Banks,   614. 
Broadwell   v.    King,   219. 
Brobst  V.    Brock,   266. 
Brodie  v.   Parsons,   56. 
Brock    V.    Eastman,    195. 
Brocker    v.   Jones,    493. 
Brocklehurst   v.   Jessop,    216,    247. 
Brodie  v.   Stephens,   297. 
Brody  v.    Brody,    502. 
Bromfield    v.    Crowder,    301. 
Bromley    v.    Ark.,    168. 
Bronson   v.    Coffin,    616,   626. 
Brook   V.   Beadley,   464. 
Brook    V.    Rice,    242. 
P>rookhaver   v.    Smith,    606. 
Brookings  v.   White,   236. 
Brooks   V.   Augusta   Warehouse   Co.,    149, 
Brooks    V.    Barrett,    637. 
Brooks  V.  Curtis,   617. 
Brooks   V.    Everett,    86. 
Brooks    V.    Galster,    16. 
Brooks   V.    Marbury,   361, 
Brooks    V.    Moody,    617. 
Brooks    V.    Topeka,    441. 
Brossart   v.    Corlett,    608. 
Brostwcll  V.   Bank,   614. 
Broughton    v.    Randall,    93. 
Broughton    v.    Vasquez,    233. 
Brower   v.    Witmeyer,    260. 
Brown   V.    Allen,   619. 
Brown   v.    Armstrong,    445. 
Brown   v.    Bailey,   593. 
Brown   v.    Baldwin,    17. 
Brown   v.    Bank,    244. 
Brown    v.    Bartee,    282, 
Brown   v.    Beaver,   635. 
Brown    v.    Berry,    439. 
Brown    v.    Bragg,    129,    147. 
Brown   v.    Bridges,    68,    300. 
Brown   v.    Brown,    399,    649. 
Brown  v.   Budd,  219. 
Brown  v.   Burkenmeyer,  433. 
Brown   v.   Caldwell,    556. 
Brown  v.   Cascaden,  236. 
Brown  v.   Cave,   367,   88. 
Brown    v.    Chadbourne,   599, 
Brown  v.   Cockerell,   497. 
Brown    v.    Cole,    254. 
Brown   v.   Concord,    641. 
Brown   v.    Crafts,    373. 
Brown   v.   Cram,    244. 
Brown    v.    Crittenden,    406. 
Brown  V.   Dan  forth,   577,    578, 
Brown   v.   Dean,  229,   684. 


TABLE   OF   CASES   CITED, 


[References  are  lo  IScctions.] 


Brown   v.    Dewey,    231,    23 

Brown  v-  Dye,   48:2. 

Brown   V.    East,    220. 

Brown  v.  Eaton,   635. 

Brown   v.    Freed,    55(5. 

Brown    v.    Geissler,    ii-'l. 

Brown   v.  Gilman,   218. 

Brown  v.  Higgs,    418. 

Brown    V.    Hogle,    187. 

Brown    v.    Holyoke,    229. 

Brown  v.   Huzer,    595,   603. 

Brown   v.   Illins,   445. 

Brown  v.  Jackson,  547,  619. 

Brown    v.    Johnson,    206. 

Brown   v.  Kansas   City,   441. 

Brown    v.    Keller,     163. 

Brown  v.   Kemp,   431. 

Brown    v.    Lamphear,    5','7. 

Brown   v.    Lapham,    242. 

Brown   v.    Lawrence,    2'.)('),   297. 

Brown  v.   Leach,   237,   2ii. 

Brown  v.   Leete,    497. 

Brown  v.  Lincoln,   ICO. 

Brown  v.   Lunt,    581. 

Brown   v.   McAllister,   633. 

Brown  v.  McCormick,   514. 

Brown    v.    McMullen,    194. 

Brown   v.    Meredith,    85. 

Brown   v.    Metz,    624. 

Brown   v.    Miller,    272. 

Brown   v.    Mitchell,    637. 

Brown  v.   Potter,   92. 

Brown   v.    Rickard,   60S. 

Brown  v.   Robins,   448. 

Brown  v.    Rogers,   208. 

Brown   v.    Saltonstall,    592. 

Brown   v.   Samuel,   15'.). 

Brownson   v.   Scanlan,   504. 

Brown   v.    Scott,   258. 

Brown    v.    Simons,    285. 

Brown   v.    Smith,   543,    574. 

Brown  v.   South    Boston   Sav.    Bank,   246, 

253. 
Brown  V.  Starr,    123. 
Brown   v.    Stillman,    253. 
Brown   v.    Thorndike,    648. 
Brown  *.   Throckmorton,   522. 
Brown    «'.    Thurston,    162. 
Brown  v.    Tilley,    97,   206. 
Brown    v.   Tomlinson,   623. 
Brown  v.   Tyler,   238. 
Brown    v.    Vanlier,    217. 
Brown  v,  Veazie,  532. 
Brown  v.   Wellington,    178. 
Brown   v.   Williams,    85,    99. 
Brown    v.    Windson,    448. 
Browne    v.    Kennedy,    597. 
Brownell    v.    Brownell,    195. 
Brownfield  v.   Wilson.  649. 
Broyles   v.    Nowlin,    368. 
Bruce  v.   Bonnez,    257. 
Bruce    v.    Bruce,    417. 
Bruce   v.    Luke,    511,    547. 
Bruce  v.   Perry,   574. 
Bruce  v.   Hemp,  480. 
Bruce  v.  Tilson,  221. 
Bruce  v.  Wood.  69. 

Brucer  v.    Fulton    National    Bank,   132. 
Bruckner   v.   Lawrence,    596. 
Brudenell  v.    Elwes,   312. 
Brudge  v.  Walling,   388. 


Bruhn    v.    Fireman's   Bldg.,   197. 

Brumagin   i'.    Bradshaw,    495. 

Brumback    v.    Brumback,    85. 

Brumbaugh  v.   Shoemaker,  278. 

Brummet    v.    Barber,    399. 

Brundage    v.    Missionary    Soc,    275. 

Brundred    v.    Walker,    512. 

Bruner    v.    Bateman,    126. 

Brunson   v.    King,    631. 

Brunton    v.    Hall,    438. 

Brush  V.    Brush,   648. 

Brush   V.    Ware,    521,   586. 

Brush    V.    VVilkins,    647. 

Bryan   v.    Atwater,    497. 

Bryan   v.    Batchelder,   98. 

Bryan    v.    Bigelow,    631. 

Bryan    v.    Bradley,    548. 

Bryan    v.    Rhoades,    121. 

Bryan    v.    Whistler,    430. 

Bryant   v.    Damon,    251,    289. 

Bryant    v.    Erskine,    237. 

Bryant  v.   Merritt,    445. 

Bryant  v.    Peck,   257. 

Brydges   v.    Brydges,    374. 

Bryson   v.    Collmer,    217. 

Bryson   v.    June,    244. 

Bubb   V.    Bubb,   84. 

Bubier    v.    Roberts,    117,    118. 

Buchan  v.   Summer,   185,   583. 

Buchanan   v.    Anderson,    644. 

Buchanan    v.    Buchanan,    393. 

Buchanan    v.    Curtis,    441. 

Buchanan   v.   Hazzard.   558. 

Buchanan    f.    International    Bank,    684. 

Buchanan   f.    Munroe,    252. 

Buchanan    v.    Reid,    266,    275. 

Buck    v.    Martin.     197. 

Buck    V.    Pickwell,    563. 

Ruck   V.    Swazey,   367,    368. 

Buckinghamshire   v.    Drury,    1 

Buckley    v.    Buckley,     185. 

Buckley  v.    Chapman,    250. 

Buckley    v.    Gerard,    647. 

Bucklin   v.    Bucklin,    236. 

Bucknall    v.    Story,    532. 

Buckworth   v.    Thirkell.    99,   356. 

Budd     V.     Brooke,     596. 

Budde  I'.    Rebenack,    195. 

Buel   V.    Buel,    129. 

Buell    V.    Cork,    136. 

Buffalo  Steam   Engine   Work  v,   Ins.   Co., 

248. 
Ruffington   v.    Maxam,   366. 
Buffum   V.   Green,    578. 
Bufreett  ?■.   Rosen feld,  275. 
Buist  V.   Dawes,   298. 
Bulger  V.   Roche,  507. 
Bulkley   v.    Devine,    135. 
Bull   V.    Kingston,    401. 
Bull  V.  Vardy,   418. 
Bullard   v.    Bowers,   94. 
Bullard    v.    Harrison,    440. 
Bullard   v.   Leach,    273. 
Bullene  v.  Garrison,   574. 
Bullin    V.    Hancock,    53,    553. 
Bullitt    V.    Coryell.    623. 
Bullitt   V.    Taylor,    566. 
Bullock  V.   Bennett,   394. 
Bullock    V.    Dommitt,    151, 
Bullock    V.    Phelps,    428. 
Bullock  f,  Seymour,  397. 

xliii 


TABLE   OP    CASES   CITED. 


[References  are  to  Sections.] 


Bullock  r.   Stone.   385. 

Bullock  t'.   Waterman   St.   Soc,  321. 

Bullock   V.    Whipp,    2x'8. 

Bumpus  V.  Plainer,  bS2. 

Bunker   v.    Gordon,    56G. 

Buntis  V.   French,   217. 

Buntin   v.   Johnson,   633. 

Bunting  v.  Gilmore,  509. 

Bunting    v.    Saltz,    126. 

Bunting  v.    Speek,   299,   301. 

Bunton   v.    Richardson,    164. 

Buras  v.   O'Brien,  488. 

Burbank  v.   Pillsbury,  617. 

Burbank   v.    Whitney,    298,   641. 

Burch    V,    Brown,    647. 

Burch    V.    Carter,    586. 

Burch  f.   Monton,   127. 

Burchell   v.    Osborne.    275. 

Burden  v.  Thayer,    149,  292. 

Burdon  v.   Barkus,  368. 

Burdett  v.    Caldwell,   166. 

Burdett  v.   Clay,   250,   251. 

Burdett  v.   Hopegood,   638. 

Burdette  v.   May,  367,  505. 

Burdge   v.    Bolin,    126. 

Burdick  v.   Heinley,  510. 

Burford    v.    Aldridge,    408. 

Burge  V.   Hamilton,   650. 

Burger   v.    Potter,   221. 

Burgess   v.    Gray,   505. 

Burgess  v.   Millican.  217,  218. 

Burgess   v.   Wheat,  220,   325. 

Burgett   f.   Taliaferro,   559. 

Burgner   v.    Humphrey,    5. 

Burgoye    v.    Spurling,    254. 

Burhaus   v.   Hutchinson,   242. 

Burk   V.    Barron,    85. 

Burk  V.  Hill,  617. 

Burk   V.    Hollis,    18,    466. 

Burkamp  v.   Healey,  549. 

Burke    v.    Lynch,    247. 

Burke  V.    Stiles,    408. 

Burke    v.    Valentine,    84. 

Burkett  v.    Burkett,   126. 

Burkhalter  v.  Ecton,  580. 

Burkhart  v.   Walker   &    Son,   127. 

Burkholder  v.   Casad,   577. 

Burks    V.    Burks.    368. 

Burks  V.  Mitchell,   494. 

Burleigh    v.    Clough,    298.    408. 

Burleyson   v.   Whitley,   282. 

Burlington   Univ.    v.    Barrett,   631 

Burmmet    v.    Barber.    397. 

Biirnell    v.    Martin,    276. 

Burnes   v.   Burnes,    528,    645. 

Burnet   v.    Burnet,    87. 

Burnett  v.  Dennistoe,  255,  262. 

Burnett    v.    Lynch,    139. 

Burnett    v.    McCluey,    572. 

Burnham   v.    Freeman,   2. 

Burns    V.    Byrne,    498. 

Burns   v.   Clark,   3. 

Burns  v.    Collins,   248. 

Burns   v.    Cooper,    149,    160. 

Burnes   v.    Fuchs,    146,    151. 

Burns  v.   Gallagher,   431. 

Burns   V.    Lvnde,   496,   576. 

Burns  V.   McCubbin,    147.   204. 

Burns   v.   Thayer,   279. 

Burnside    v.    Ferry,    126. 

Burnside  v.  Merrick,  86,  184. 

xliv 


Burnsides   v.   Twichell,    13,   265. 

Burnside   v.   Terry,    228. 

liurnside  v.    Watkins,    125. 

Burnside    v.    Wayman,    228. 

Burr    V.    Veeder,    269. 

Burrall    v.    Clark,    92,    118. 

Burrall   v.    Hurd,    87,    118. 

Burrell   v.    Bull,    368. 

Burrell    v.    Burrell,    497. 

Burrell   v.    Lumber   Co.,   13. 

Burrill   v.    Boardman,    399. 

Burrill    v.    Shield,    378. 

Burris    v.    Page,    86. 

Burroughs   v.    Nutting,    637. 

Burroughs  v,  Saterlee,  445. 

Burrowes    v.    Malloy,    272. 

Burrows  v.   Burrough,  637. 

Burrows  v.    Gallup,   501. 

Burrus   v.    Roulbac's   Admx.,   217. 

Burson  v.    Andes,   256. 

Burt    V.    Hurlburt,    71. 

Burt  V.   Merchants   Ins.   Co.,   525 

Burton   v.   Anthony,   557. 

Burton   v.    Barclay,    155. 

Burton   v.    Baxter,   250,    251. 

Burton  v.    Reed,   514. 

Burton  v.   Wheeler,   286. 

Burwell   v.    Snow,    608. 

Buse  V.   Russell,    489. 

Bush    V.    Bradley,    80. 

Bush  V.    Bush,   380,   637. 

Bush   V.    Coomer,    199. 

Bush    V.    Gamble,    178. 

Bush    V.    Marshall,    217. 

Bush    V.    Piersol,    97. 

Bush   V.    Sherman.   277,  278. 

Bush    V.    Wilkins,    647. 

Ruskirk   v.    Stickland,    448. 

Busnen    v.    Bank,    246. 

Buss  z:    Dyer,    431. 

Bussman    v.    Gauster,    151. 

Bustard   t'.    Coulter,   609. 

Buswell    V.    Peterson,    272. 

Butcher   z'.    Butcher,   85. 

Butler   V.    Baker,    .'Sei. 

Butler  V.   Brown,   121.   574. 

Butler    V.    Cushing,    146. 

Butler  V.    Godley,    379. 

Butler  V.   Henstis,  415. 

Butler   V.    Manney,    142. 

Butler   V.    Maury,    583. 

Butler   V.    Roys,    178,   593. 

Butler   V.    Seward,    257,    258. 

Butte,  etc.,   Co.  v.  Ore  Purch.   Co.,  468. 

Butte   Min.    Co.   v.    Sloane,   5. 

Butterfield    v.    Baker,    160. 

Butterfield  v.  Wicks,   121. 

Butterfield  v.   Wilton  Academy,  204,  370. 

Butrick  v.  Tilton,   577. 

Buttrick    v.    Wentworth,    281. 

Butts   V.    Fox,    68,   156. 

Ruyon   v.    Biglow,  628. 

Buzick    V.    Buzick,    85. 

Buzzell    V.    Cummings,    13. 

Ryers  v.   Engles,  583. 

Byles  V.   Lome,   585. 

Bynum   v.    Bynum,    633. 

Byrane   v.    Rogers,    150. 

Byrnes    v.    Labagh,    301. 

Byrne   v.   Taylor,    273. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


\ 


Cabot    V.    Windsor,    640. 

Caddick   v.    Cook,    266. 

Caddo  V.  Parish   of   Red   River,  524. 

Cadell   V.   Palmer,    132. 

Cadematori   v.    Gauger,    74. 

Cadman   v.    Peter,   233. 

Cadmus    v.    Pagan,    63  7. 

Cadmus  v.  Jackson,   533. 

Cady    V.    Shepherd,    569. 

Cahill    V.    Palmer,    496. 

Cain   V.    Fisher,    617. 

Caines  v.   Grant's   Lessee,    176,   368. 

Cairns   v.   Colburn,    329. 

Cake  v.   Cake,   592. 

Calahan  v.    Linthicum,   248. 

Calder  v.   Chapman,   583,   584. 

Caldwell   v.   Copeland,   5. 

Caldwell  v.   Fulton,   4,  590. 

Caldwell    v.    Hall,    246. 

Caldwell  v.   Kirkpatrick,   621. 

Caldwell   v.   Taggert,   273. 

Caldwell   v.   Trezevant,   74. 

Cale  V.   Mueller,    595. 

Calhoun   v.  Calhoun,   348. 

Calhoun  v.  Curtis,   191. 

Calhoun   v.    Furgeson,    640. 

Calhoun  v.  McLendon,  122. 

Calhoun    v.    Lullass,    274. 

Calhoun   v.    Williams,    122. 

California  v.  Tel.  Co.,  453. 

Calk   V.   Stribling.   597. 

Calkins    v.    Minse  1,    255. 

Calkins   v.    Steinbach,    187. 

Call  V.   Barker,   195. 

Call    V.    Perkins,    558. 

Callahan  v.   Robinson,   118. 

Callaway    v.    Hubner,    382. 

Calloway  v.    Doe,    519. 

Calloway  v.   People's    Bank,  278. 

Calmes    v.    Jones,    37. 

Calmount   v.    Whitaker,    444. 

Calvert   v.    Aldrich,    190,    431. 

Calvert  v.   Bradley,    139. 

Calvert   v.    Fitzgerald.    596. 

Calvert   v.    Hobbs,    139. 

Calville    v.    Kinsman,    642. 

Cambridge  Lodge  v.  Routh,  158. 

Cambridge    Valley    Bank    v.    Delano, 

586. 
Camden  v.  Vail,  218. 
Cameron    v.    Irwin^    280. 
Cameron  v.   Little,   164. 
Cammann  v.  Cammann,  56,  384. 
Camp   V.    Coxe,    239. 
Camp    V.    Cronkright,    301. 
Camp   V.    Smith.    254,    522. 
Campan    v.    Bernard,    199. 
Campan  ?•.    Campan,   498. 
Campan    ?■.    Dubois,    495. 
Campan  v.  Godfrey,   593. 
Campbell   7'.    Bemis,   558. 
Campbell    f.    Burch,   250. 
Campbell    r.    Clark.    640. 
Campbell    v.    Dearborn,    231,    283. 
Campbell   v.    Henry,   218. 
Campbell  v.   Tones,  126. 
Campbell  v.  Kuhn,  556. 
Campbell  v.   Knights,   628. 


684, 


Campbell    v.    Laclede    Gaslight    Co.,    198, 

498. 
Campbell   v.    Leach,    414. 
Campbell   v.    Lewis,    147. 
Campbell   v.   Loader,    128. 
Campbell   v.    Murphy,    108. 
Campbell    v.    Procter,    1C2. 
Campbell   v.    Roach,    221. 
Campbell   v.    Roddy,    13,    15. 
Campbell   v.    Selley,   204. 
Campbell    v.    Smith,   253. 
Campbell    v.    Wilson,    429. 
Canady   v.    Boliver,    286. 
Canal    Appraisers    v.    People,    599. 
Canal   Co.    v.    Railroad   Co.,   207. 
Canal   Commrs.   v.   The   People,   598. 
Canedy   v,    Marcy,    590. 
Candee  v.    Burke,   278. 
Canfield  v.  Ford,  4. 
Canfinan  v.  Sayee,  272. 
Canncy   v.    Canney,    125. 
Canning  v.    Pinkham,    578. 
Cannon   v.    Cannon,    577. 
Cannon   v.    Setzler,   634. 
Cannon    v.    White,    519. 
Cantrell    v.    Fowler,    146,    151. 
Capehart   v.    Deltrich,    236. 
Capen   v.    Peckham,   16. 

Capen   v.    Richardson,    329. 

Capner  v.    Farmington   Co.,    20S. 

Capper   v.    Sibley,    134. 

Caraway    v.    Chancy,    595. 

Carberry    v.    Preston,    247. 

Carbrey  v.   Willis,   595. 

Card    V.    Griesman,    645. 

Carey  v.    Baughn,   647.  / 

Carey  v.   Boyle,   219.  [ 

Carey   v.   Daniels,    444.  ' 

Carey  v.    Rawson,   213. 

Carl   V.   Lowell,    172. 

Carleton   Mills   Co.   v.   Silver,   447. 

Carley  v.    Parton,    495. 

Carlin    v.    Chappell,    448. 

Carlin   v.   Ritter,    18,    15. 

Carll  V.   Butman,   287. 

Carlisle   v.   Carlisle,   574. 

Carlisle    v.    Cooper,    429. 

Carloss    v.    Oxford,    202. 

Carlton  v.    Buckner,   219. 

Carman    v.    Johnson,    521. 

Carman   v.   Mosier,    55. 

Carmichael   v.   Carmichael,   101. 

Carmichael   v.    Trustees,    596. 

Carmody  v.   Chicago,   497. 

Carnes  v.  Apperson,  365. 

Carolina   Xat.    Bank  v.   Senn,   181. 

Carpenter  v.   Allen,    13. 

Carpenter    v.    Black    Hawk,    278. 

Carpenter  v.   Brenham,   242. 

Carpenter    v.    Buller,    515. 

Carpenter  v.   Carpenter,   235,  Sdff. 

Carpenter  v.  Casper,  243. 

Carpenter  v.    Coats,   197. 

Carpenter    v.    Dexter,    574,    581. 

Carpenter   v.   Gleason,   242,   268. 

Carpenter  v.  Graber,   435. 

Carpenter  v.   Ins.   Co.,  248. 

Carpenter    v.    Koons,    253. 

Carpenter   v.    Longan,   253. 

Carpenter    v.    Monks,    417. 

xlv 


TABLE   OF   OASES   CITED. 


[References  are  to  Sections.] 


Carpenter  v.   Murin,  566. 
Carpenter   v.    O'Dougherty,   274. 
Carpenter  v.   Weeks,   92. 
Carpentier   v.    Webster,    186. 
Carpentier  v.  Williamson,  547 
Carr   v.    Carr,    233,    234. 
Carr   v.    Field,    33. 
Carr    r.    Givens,    80. 
Carr   v.    Hobbs,    217. 
Carr    v.    Holbrook,    230. 
Carr    v.    Holliday,    55C. 
Carr   v.    Hoxie,    579. 
Carr  v.   Risiny,  231. 
Carrico   v.    I'anners,   etc.,    Bk.,    218. 
Carrier   v.    Earl,    166. 
Carrier   i:    Gale.    505. 
Carrigan    v.    Evans,    195. 
Carring  r.   Dee,   443. 
Carrington    f.    Roots,    4. 
Carrol    v.    Gillion,    497. 
Carrol    v.    Norton,    633. 
Carrol   v.   Norwood,  548,   595. 
Carroll   v.    Burns,   322. 
Carroll    v.   Conley,   388. 
Carroll   v.   Hancock,   354. 
Carroll   v.   Rigncy,    140. 
Carroll  Co.  Academy  r.  Trustees,  205. 
Carrough    v.    Hannill,    613. 
Carson    v.    Blazer,    599. 
•  Carson    v.    Coleman,    525. 
Carson   v.    Fuhs,    79,   321. 
Carson  ;■.   McCaslin,   609. 
Carson    ;■.    Murray,    97. 
Carter   v.   Dunnan,   616. 
Carter    v.    Chandron,    572. 
Carter   v.    Chesapeake,    597. 
Carter   v.    Dale,    79. 
Cartwright    v.    Gardner,    148. 
Carter  v.    Gibson,    373. 
Carter  v.  Goodin,  87. 
Carter   v.    Hammett,    140. 
Carter    v.    Hunt,    301. 
Carter   v.    Montgomery,    367. 
Carter    v.    Parker,    105. 
Carter   v.   Penn,    572. 
Carter    v.    Rockett,    248. 
Carter    v.    Wake,    216. 
Carter   v.    Warne,    140. 
Carter    v.    White,    199. 
Carter    v.    Williams,    80. 
Carter  Lumber  Co.  v.  Clay,   127. 
Caruthers   v.    Caruthers,    117. 
Carver   v.    Eads,   217. 
Carver   v.    Bowles,    399. 
Carver    v.    Brady,    278. 
Carver    v.    Jackson,    306. 
Carwardine   v.    Carwardine,    356. 
Cary   v.    Daniels.    435,   616. 
Caryl    v.    Russell,    250. 
Casborne    v.    Scarfe,    225,    239. 
Case    V.    Codding,    367. 
Case   Threshing   Co.   z:    Mitchell,    285. 
Casey   v.    Dunn,    494. 
Casey  v.   Gregory,   157. 
easier   v.    Byers,   272,    592. 
Cason    V.    Hubbard,    97. 
Cass  V.    Martin,    87. 
Cassada    v.    Stable,    612. 
Cassedy  v.   Stoblc,   548. 
Casserly    v.    Witherbee,    255,    266. 
Casson    r.    Dode,    633. 

xlvi 


Casteus  v.  Murray,  629,  644. 

Castle   V.   Castle,   261,    582. 

Castleman    v.    Belt,    245. 

Castleman   v.    Castleman,    473. 

Gates  V.    Field,  625. 

Cates   V.    Woodson,    556. 

Catherwood  v.    Watson,   367. 

Catlin    V.    Brown,    399. 

Cathin   v.    Decker,    498. 

Catlin  V.   Ware,   105. 

Catoe  V.   Catoe,   367,   480. 

Catts   V.    Simpson,    146. 

Cave  V.   Crafts,   432. 

Cavender  v.    Smith,   521. 

Cavis   V.    Beckford,    14. 

Cavins   v.    Chabert,   64. 

Cecil    V.    Beaver,   501,    578. 

Cemousky    v.    Fitch,    617. 

Center     Cr.     Min.     Co.     r.     Frankenstein, 

162. 
Central  Trust  Co.  v.  N.  Y.  &  N.  R.   Co., 

272. 
Chace  v.   Chace,  647. 
Chadbourne    v.    Mason,    603. 
Chadsey    v.    Chadsey,    480. 
Chadwick    v.    Carson,    592. 
Chadwick    v.   Tatem,    118,    648. 
Chadwick   z:   Haverhill    Bridge,    453. 
Chaffee   r.    Baptist,   632,   633. 
Chalker   v.    Chalker,    207. 
Challefoux    v.    Ducharme, 
Chamberlain    v.    Bradley,    603. 
Chamberlain    v.    Brown,    122. 
Chamberlain   v.    Donahoe,    163,   166. 
Chamberlain   v.    Dunlap,    155,    156. 
Chamberlain    v.    Preble,    624. 
Chamberlain    v.    Runkler,    31. 
Chamberlain    v.    Stanton,    576. 
Chamberlain   v.   Youngs   Exr.,   301. 
Chambers    v.    Goldwin,    234,    274. 
Chambers  v.  Perry,   380. 
Chambliss    v.    Smith,    368,    623. 
Cliamp   Spring  Co.  v.  Roth  Tool  Co.,   18, 

146. 
Champion    v.    Spence,    194. 
Champlin   v.   Laytin,   257,   258. 
Cliampney   v.    Coope,    242,    254. 
Chance    v.    Jennings,    233. 
Chancellor   z\    Traphagan,    253. 
Chandler   v.   Chandler,   231. 
Cliandler   z\    Dyer,    255. 
Chandler   v.   Kent,    134. 
Chandler    v.    Simmons,    556. 
Chandler  v.   Thurston,   59,   160. 
Chandler   v.    White,   264. 
Chandos   v.    Talbot,    62. 
Chaney    v.    Chaney,    90. 
Chapel    V.    Bull,    625. 
Chapel   V.    Smith,    445. 
Chapin    z>.    Harris,    211,    627. 
Chapin   v.   Hill,    118. 
Chapin   v.    Nott,    576. 
Chaplin    v.    Chaplin,    38. 
Chaplin    v.    Doty,    393. 
Chaplin    v.    Foster,    273. 
Chaplin   v.    Sawyer,   121.  i 

Chapman    v.    Black,    136. 
Chapman  z:   Chapman,  213. 
Chapman    z\    Cooney,    246. 
Chapman    Z'.    Epperson,    57,    62. 
Chapman   z'.    Harney,    150. 


TABLE   OF    (JAiJES    CITED 


[References  are  io  Sections.'] 


Chapman   v.    Holmes,    624. 

Chapman    v.    Kirby,    150. 

Chapman   v.   Lee,   217,   218. 

Chapman   v.   Polack,   605. 

Chapman    v.    Schroeder,    114. 

Chapman  v.  Tanner,   217. 

Chapman    v.    Towner,    136. 

Chapman    v.    Wright,    150. 

Chappell    V.    Allen,    282. 

Charles  v.  Byrd,   141. 

Charles  v.   Dubose,   368. 

Charles   v.    Hazelton,   62. 

Charles   v.   Morrow,    503. 

Charles  v.    Patch,   590. 

Charles  v.    Rankin,    448. 

Charles   v.    VVaugh,    532. 

Charles     River     Bridge     Co.     v.     Warren 

River    Bridge   Co.,    456,    519. 
Charleston   C.  &  C.    R.    R.  v.   Leech,  593. 
Charleston   City   Council  v.   Ryein,    257. 
Charleston  &.   W.  C.  Co.  v.  Fleming,  178. 
Charleston    Ry.    Co.   v.    Reynolds,   300. 
Charleston  S.   Ry.  Co.  v.  Johnson,  599. 
Charter   v.    Stevens,    280. 
Charter   Oak   Co.   v.   Gisborne,   219. 
Chartiers  Coal  Co.  v.  Mellon,  438. 
Chase   v.    .Abbott,   243. 
Chase  v.  Alley,  101,  118. 
Chase  v.  Cartwright,  371. 
Chase  v.    Driver,   62. 
Chase    v.    Hazleton,    62. 
Chase   v.    Lockerman,    240. 
Chase  v.  McDonald,   262. 
Chase   v.    Palmer,    246. 
Chase  v.    Peck,    217. 
Chase  v.   Stockett,   374. 
Chase    v.    Woodbury,    283,    284. 
Chasey   v.    Gowdry,    301. 
Chastang    v.    Chasting,    493,    495. 
Chastain  i'.   Higdon,   195. 
Chastain  v.   Phillips,    494. 
Chatterton    v.    Fox,    154. 
Chattle  V.   Pound,   157. 
Chatord   v.    O'Donovon,    166,    170. 
Chautauqua  .Assembly  v.  Ailing,  139,  147. 
Chavey    z:    Chavey,    631. 
Cheaver   v.    Perley,    247. 
Cheever   v.    Rutland,    243. 
Chenalt  v.   Thomas,   615. 
Chenaults   Guardian   v.   Chenaults   Estate, 

840. 
Cheney  7>.    Xewberry,    136. 
Cheney   v.    Ringold,    494. 
Cheney   z'.   Watkins,   548. 
Cheney   v.    WoodrufT.    248. 
Chenowitch   v.   Granby   Co.,    17. 
Cherry  v.    Bowen,  234. 
Cherry   v.    Monro,    257,    286. 
Cherry    v.    .Slade,    603. 
Cherry   ?'.    Stein,    443. 
Cherrington   -'.   Adney  Mill,   442. 
Chesiey  -'.    Chcsley,   278. 
Chesley   v.    Welch,   59. 
Chessman  v.  Whittemore,  554. 
Chess  V.  Chess,  577. 
Cheeseborough   v.    Green,    4. 
Cheeseborough    v.    Millard,    283, 
Cheeseborough   v.    Pingree,    151. 
Cheeseborough   v.    Ringrel,    134. 
Ch-ster   v.    Urwick,    368. 
Chester   v.    Willan,    177. 


Chestnutt  v.    Cann,    375. 

Chew  V.   Barret,  238. 

Chew    V.    Commissioners,    77. 

Chew   V.   Kellar,   39,    408. 

Chew's    Exrs.    v.    Chew,    421. 

Chicago  V.    Peck,   169,    170. 

Chicago    B.,    etc.,    R.    R.    Co.   v.    Watson, 

231. 
Chicago  B.  &  T.   R.   Co.  v.   .\bbott,  456. 
Chicago,    etc.,    Ry.    Co.   i\   Cu::,    4'J7. 
Chicago  &   .N'.   W.    R.   Co.   v.    Ft.    Howard, 

2. 
Chicago,  P.  &  St.  L.  Ry.  Co.  z\  Vaughan, 

53. 
Chick   V.    Rollins,    247,    498. 
Chick    V.    Willetts,     236. 
Child   V.   Starr,   601,   597. 
Childers   v.    Calloway,    494. 
Childers   v.    Henderson,    121. 
Childs    V.    Hayman,    195. 
Childs   V.    Hurd,    13,    18. 
Chiles  V.   Conley,   494,   571. 
Chiles    V.    Wallace,    272. 
Chilton    z>.     Briaders,    217. 
Chilton   -'.    Brooks,   251,    278. 
Chilton    V.    Henderson,    321. 
Chilton    V.    Xiblett,    163. 
Chipman    v.    Emeric,    08,    148. 
Chipman    v.    Tucker,    570. 
Chisholm    v.    Chisbolm,    121. 
Chisholm   v.    Georgia,   25. 
Chisholm's    Heirs  v.    Ben,    633. 
Chism   V.    Williams,    397. 
Cliitwood   f.    Lanyon    Tine   Co.,    466. 
Choate    V.    Tighe,    217. 
Cliolmeley  i\    Paxton,   07. 
Cholmondcley    t.    Clinton,     247. 
Chopin    V.    Runte,    120. 
Chostek    v.    Sonta,    576. 
Chouteau   f.    Eckart,   520. 
Choutman   t.   Bailey,  321. 
Christy   v.   .Mford,   499. 
Christy  v.    Badger,   040. 
Christy    v.    Dyer,    123. 
Christy    r.    Scott,    242. 
Christopher  7'.   Austin,    154. 
Church   z'.    Burghart,    517. 
Church    V.    Chapin,    308. 
Church   v.    Church,    87.   90. 
Church   V.    Gilman,   576,    578. 
Church    f.    Kemble,    399. 
Church    V.    Meeker,    60l. 
Churchill    z'.    Morse,    .'>S3. 
Church    -■.    Ruland,    368. 
Church    -'.    Savage,    288. 
Church    r.    Smith,    221. 
Churchill    f.    Hulbert,    173,    466. 
Churchill     r.     Hunt,     616. 
Churchill    z'.    Loring,    275. 
Chute   V.    Washburn,    202. 
Cihak  V.   Klekr,   432. 
Cilley    V.    Cilley.    633.  * 

Cincin.    R.   R.   Co.  -v.   Tliff,   .178. 
Citizen's   Bank  v.   Dayton,   250,  274. 
Citizens  BarUc  ?'.  Hejams,  242. 
City    Bank   7'.    Smisson,    120. 
City    Bank   v.    Smith,    209. 
City  Council  v.   Walton.  376. 
City   of   Galveston   v.    Menard,    598. 
City  of   London   z>.   Greyme,   66. 
City  of  New   York  v.   Law.   608. 

xlvii 


TABLE   OP   CASES   CITED. 


[References  are  to  Sections.] 


City    of    Quincy    v.    Jones,    448. 

City   of    Wilkes-Barre   v.    Wyoming,    etc., 

SO. 
Cixck  V.   Cizek,   71. 
Cla   V.    Edwards,    683. 
Clafflin   V.    Brockmeyer,    157. 
Clague  V.    Washburn,   581. 
Clanics   V.    Dickenson,   iS«. 
Claney   v.    Rice,    595. 
Clap   V.    Draper,    4,    563. 
Clapp   V.    Bromagham,    195. 
Clapp    V.    Galloway,    87. 
Clapp  V.  Herdman,  619,  625. 
Clapp  V.    Stoughton,   207. 
Clapp    V.    Tirrell,    506. 
Clarey    v.     Frayer,    4U7. 
Clary    v.    Owen,    242. 
Clark   V.    Allmon,    444. 
Clark   V.    Baker,    304. 
Clark    V.    Bell,    221. 
Clark    V.    Bench,    243. 
Clark  V.    Bullard,    256. 
Clark    V.    Bush,    246. 
Clark  V.  Clark.  181,  443. 
Clark  V.   Condit,   234,   277. 
Clark   V.    Conroe,    615. 
Clark  V.   Crego,   376. 
Clark   V.    Daniels,    512. 
Clark    V.    Foot,    66. 
Clark   V.    Fox,    480. 
Clark  V.  Giflford,  579. 
Clark   V.    Graham,    571. 
Clark    V.    Gilbert,    495. 
Clark  V.   Henry,   229,   234. 
Clark  V.   Hershey,   366. 
Clark  V.   Hunt,  221. 
Clark  V.  Jacobs,   220. 
Clark   V.    Jones,    148. 
Clark   V.   Kelliher,   173. 
Clark   V.    Leupp,    40. 
Clark    V.    Lineberger,    618. 
Clark   V.    Lyon,    229. 
Clark    V.    McCIure,    497. 
Clark    V.    McXeal,    261,    582. 
Clark  V.  Midland  Blast  Furnace  Co.,  153. 
Clark  V.    Owens,    46. 
Clark   V.    Parker,    196. 
Clark   V.    Pickering,    479. 
Clark  V.   Prentice,   273. 
Clark    V.    Reyburn,    239. 
Clark   V.    Redman,    97. 
Clark  V.  Seagreaves,  233. 
Clark  V.    Simmons,   242,   278. 
Clark   V.    Slaughter,    76. 
Clark  V.    Smith,   269. 
Clark    V.    Stilson,    218. 
Clark  V.    Strong,    465,    645. 
Clark   V.    Swift,   616. 
Clark   V.    Taintor,    376,    410. 
Clark  V.   Way,   4. 
Clark   V.    White,    453,    504. 
Clark   V.    Wilson,   248. 
Clarke  v.   Gaffeney,    435. 
Clarke   v.    McAnulty,    619. 
Clarke   v.    Rochester,    531,    525. 
Clarke  v.   Wagner,   493,   495. 
Clarkson    v.    Clarkson.    49. 
Clarkson    t:    Hatton,    39.    49. 
Clarksons  v.   Doddridge,   251. 
Clason    V.    Corley,    245,    275. 
jClaussen   v.    La    Franz,    331. 

xlviii 


Clavering    v.    Clavering,    64. 

Claycomb   v.    Mungcr,   619,   624. 

Clayton    v.    Liverman,    644. 

Clearwater  v.   Rose,   30,  257. 

Cleary    v.    McDowell,    69. 

Cleaver  v.    Cleaver,    473. 

Clemence   v.    Steere,   62. 

Clemens   v.    Bromfield,    163. 

Clement   v.    Burtis,    433,    626. 

Clement    v.    Perry,    495. 

Clement   t'.    Voungmann,    4,    590. 

Clements    v.    Griswold,    242. 

Clepper    v.    Livergood,    79. 

Cleveland   v.    Booth,   272. 

Cleveland    v.    I'lagg,    559. 

Cleveland    v.    Hallett,    346,    406, 

Cleveland  f.   Jones,    501. 

Clifford    V.    Parker,    554. 

ClilTord    v.    Watts,    152. 

Clift  V.   White,   155. 

Clifton   V.    Montague,    143. 

Climer   v.    Wallace,    596. 

Cline  V.   Black,   156. 

Cline    V.   Jones,    576. 

Clingen   v.    Mitcheltrce,   645. 

Climie  v.   Wood,    10. 

Clinton   v.   Myers,    444. 

Clock   V.    Gilbert,    504. 

Cloos   V.   Cloos,    183. 

Cloud  V.   Calhoun,   375. 

Clough   V.   Clough,   387. 

Clough   -'.    Bowman,    590. 

Clough    V.    Rowe,    272. 

Clowes    V.    Dickinson,    284. 

Clowes    V.    Hawley,    186. 

Cloyd   V.   Cloyd,    119. 

Clute  V.   N.   Y.,   etc.,    R.   R.   Co.,   604. 

Cluett    V.    Sheppard,    135,    606. 

Clyburn    v.    Reynolds,    300. 

Clymer   v.    Dawkins,   186,    498. 

Coal   Co.   V.   Mellon,    4. 

Coal  Creek  Mining  Co.  v.  Heck,  494,  608, 

Coates   V.   Cheever,    64,    87. 

Cobb   V.    Lucas,   562. 

Cobb   V.    Davenport,    599. 

Cobb   V.    Stokes,    164. 

Coberly   v.    Coberly,    460. 

Cobert   v.    Cobert,    117. 

Cobley  V.    Cobley,   492. 

Coliurn   z'.    Coxeter,    594. 

Coburn    v.    HolHs,    497. 

Coburn    v.    Palmer,    157. 

Coburn  v.   Palmer,   157. 

Cochran    v.    O'Hern,    72,    79. 

Cochrane  v.   Cochrane,   186,   397. 

Cochrane    v.    Guild,    617. 

Cochran    v.    Van    Surlay,    526. 

Cocker    v.    Cowper,    467. 

Cockney  z'.    Milne,   581. 

Coder   v.    Huding,    184. 

Codman    v.    Brigham,    641. 

Codwise   7'.    Taylor,    221. 

Cody    V.    Bunns,    640. 

Coe    V.    Bates,    482. 

Coe   V.   Columbia,    228. 

Coe   V.   Hobby,    156. 

Coe  V.    Ritter,    590. 

Coffer   V.    Argo,    365. 

Cotfey    V.    Hendricks,    574,    590. 

Coffin  V.   Elliott,   640. 

Coffin   V.    Loring,    238. 


TABLE   OP   CASES    CITED. 


[References  are  to  tiections. 


Coffin    V.    Ray,    585. 
Coflfman  v.  Huck,   166. 
Cofran    v.    Shephard,    172. 
Cogan   V.    Cogan,    313. 
Cogan   V.    Cook,   584. 
Coggswell    V.    Tibbetts,    98. 
Coglan    V.    Coglan,    637. 
Cogswell  V.  Cogswell,  54. 
Cohn   V.    HotTman,    125,   242. 
Cohn   V.   Norton,    131. 
Coit    V.    McReynolds,    614. 
Coker    v.    Pearsall.    292. 
Colbert    v.    Spleen,    638. 
Colburn    v.    Mason,    186. 
Colburn   v.    Morrill,    154. 
Colburn    v.    Richards,    444. 
Colby    V.    Osgood,    612. 
Colchester   v.    Roberts,    438. 
Cold     Springs     Iron     Works    v. 

597. 
Coldw'ell   V.   Woods,   230. 
Col    V.    Patton,    30. 
Cole   V.    Harlow,    452. 
Cole    V.    Beale,    43. 
Cole    V.    Bickelliaupt,    65. 
Cole    V.    Goblc,    397. 
Cole    V.    Hughes,    433. 
Cole   V.    Lake    Co.,    163. 
Cole   V.    Livingston,    304. 
Cole  V.   Patterson,    149. 
Cole  V.   Pennoyer,   557. 
Cole   V.    Raymond,    620,    621. 
Cole  V.    Scott,   217. 
Cole  V.   Sewell,   312,   354. 
Cole   V.    Sprowie,    441. 
Cole   z:    Wade,    378,    410. 
Colee  V.  Colee,  568. 
Cole    V.    Wolcotville,    69. 
Coleman    v.    Cabaniss,    402. 
Coleman    v.    Barklew,    586. 
Coleman   v.    Billings,   493,   495. 
Coleman    v.    Bresnahan,    511. 
Coleman   v.   Chadwick,    448. 
Coleman    v.    Coleman,    511,    512. 


Tolland, 


Coleman 

V.    Foster,   465,   466. 

Coleman 

7\    Lane,    179. 

Coleman 

V.    Lyman,   614. 

Coleman 

V.    Packard,    244. 

Coleman 

V.    Woolley,    348. 

Colomar 

V,    Morgan,    584. 

Coles   V. 

Allen,    368. 

Coles    V. 

Trecsthick,    368. 

Coleman 

I'.   \'an   Rensslaer,   250. 

Coles    V. 

Wooding,    193. 

Collamer 

V.   Langdon,  240,  250. 

Collett  V. 

Henderson,    197. 

Collier  v. 

Cowger,   619,   625. 

Collier    V. 

Doe,    558. 

Collier    V 

Pierce,   443. 

Collins  V. 

Baytt,   127. 

Collins    V 

Bounds,    126, 

Collins  V. 

Chartiers   Val.  Gas  Co.,  445 

Collins    r 

Crownover,    55. 

Collins    V 

Davis,    239. 

Collins   V 

Hasbrouck,   139,   140. 

Collins   V 

Johnson,    498. 

Collins   V 

Larenburg,    348. 

Collins  V. 

Lumber   Co.,   300. 

Collins   V. 

Stocking,   242. 

Collins  V. 

Torsey,  87,   239. 

•Collins  V. 

Townley,   631. 

Collonore  v.  Gilles,   16. 

Colls  V.  Home  &  Colonial  Stores,  434, 
443. 

Collyer    v.    Collyer,    134. 

Colquhoun   v.   Atkinson,   262. 

Colson    V.    Baker,    176. 

Coltman   v.    Senhouse,   398. 

Colton    V.    Seavey,    594,    595. 

Colton  y.    Smith,    195,    196. 

Columbia   Ins.   Co.   v.   Lawrence,   248. 

Colwell    V.    Woods,    229. 

Coman    v.    Lakey,    365. 

Combs   V.  Jolly,    631. 

Combs  V.   Little,   368. 

Combs,   Admr.   v.   Krish,   220. 

Comer   v.    Chamberlain,   82. 

Comerford   v.    Cobb,    572. 

Comfort  V.    Mather,   642. 

Commercial   Bank  v.   Ulmann,  572. 

Commercial    Ins.    Co.    v.   Spankneble,    248. 

Commissioners    v.    Chesapeake,    257. 

Commissioners   v.    Hackett,    291,    298. 

Commissioners   v.    Kempshall,    597. 

Commissioners   v.    Low,    429. 

Commissioners    v.    O'Rear,    75. 

Commissioners   z'.    Thompson,    594. 

Commonwealth    v.    Alger,    525. 

Commonwealth   v.   Dudley,   518. 

Commonwealth    v.    Perkins,    562. 

Commonwealth   v.    Ro,xbury,    485,    519. 

Commonwealth    v.  ■  Weatherhead,    130. 

Compare    Valley    v.    Small,    504. 

Compton  V.  McMahon,  410. 

Compton   V.   Milton,   633. 

Comstock  V.  Comstock,  615. 

Comstock   V.    Smith,    554,    622. 

Conant    z:    Little,    85,    106. 

Conant   v.    Smith,    197. 

Concord   Bk.  v.   Bellis,   515,   558. 

Concord    Ins.    Co.    v.    Woodbury,   248. 

Condert   v.   Cohn,    134. 

Condict  V.   King,  397. 

Condon  v.   Barr,  170. 

Condon  t.  Maynard,  278, 

Condon   7>.    Morgan,    504. 

Conduit  V.   Ross,   626. 

Cone    r.    HutTon,    579. 

Conedy    v.    Marcy,    527. 

Conger   v.    Lowe,    302. 

Congleton    v.    Pattison,    147. 

Congregational  Meet.  House  v.  Hilton, 
135. 

Cong.  Mem.  Ch.  Lat.  Day  Saints  v. 
Wilson,    575. 

Congregational    Soc.   v.   Rix,    139. 

Congregational    Soc.    v.    Stark,    30. 

Coniswna   &    N.  .W.   Co.   v.    State,   455. 

Conkey   z:    Rex,   23S. 

Conklin   v.    Foster,    66. 

Conlan    v.    Doull,    647. 

Connaughton   v.    Sands,    122. 

Connecticut    t.    Jackson,    270. 

Connecticut  Mut.  Life  Ins.  Co.  v.  Skin- 
mon,   248. 

Conneticut  Mut.  Life  Ins.  Co.  v.  Skin- 
ner, 321. 

Connecticut  Mut.  Life  Ins.  Co.  v. 
United   States,   151. 

Connell   v.    Connell,   586. 

Connelly   z'.    Doe,    576. 

Conner    v.    Bradley,    150. 

xlix 


TABLE   OF   CASES   CITED. 


[References  are  to  /Sections.] 


Conner   v.   Whittnore,    240,    247. 

(.onner  t:   Withers,   599. 

Conoery   v.    Brooke,   591. 

Connor   v.   Shepard,   6:J,    86. 

Conover    v.    Porter,   553. 

Conover  v.    Van   Mater,   260. 

Conrad   v.    Druids   Grand   Grove,   625. 

Conrad   v.    Harrison,    a90. 

Consolidated  Co.  v.   Peers,   17. 

Consolidated,    etc.,    Min.    Co.   v.   Lebanon 

Min.    Co.,    515. 
Constant  v.  Am.    Baptist  Society,  586. 
Constant   f.    Matteson,    384. 
Constant  v.   University  of  Rochester,  586. 
Continental  Title   &  Trust  Co.  v.   Devlin, 

242. 
Conway  v.   Alexander,  228,   231. 
Cooghan    v.    Ackershausen,    406. 
Coogler   V.    Rogers,    504. 
Cook    V.    Babcock,    493,    495. 
Cook    V.    Bauder,    217. 
Cook   V.    Brown,   577,    578. 
Cook   V.   Brightley,   242,    461. 
Cook  V.   Champlain  Co.,  66. 
Cook    J'.    Coltin,    53. 
Cook  V.   Colyer,   233. 
Cook   V.    Cook,    57. 
Cook  V.  Cooper,  16,  243. 
Cook  V.    Couch,   31,   118. 
Cook   V.    Ellington,    373. 
Cook   V.    Fisk,   105. 
Cook    V.    Gerard,    304. 
Cook   V.    Hammond,    115,    293. 
Cook  V.   Klenk,   166,  170. 
Cook    V.    Kraft,    217. 
Cook   V.    McChristian,    123. 
Cook  V.   McKinney,   493. 
Cook  V.   Moore,   560. 
Cook    V.    Prigden,    467. 
Cook    V.    Rounds,    247. 
Cook  V.    Linnamon,   562. 
Cook    V.    Stearns,    466. 
Cook  V.   Toxley,   157. 
Cook   V.   Trimble,    217. 
Cook    V.    Winchester,    633. 
Cooke    V.    Neilson,    164. 
Cookson   V.    Richardson,   368. 
Coolidge   V.    Melvin,    529,    566. 
Coombs   V.    Anderson,    45,    189, 
Coombs   V.    Jackson,    25. 
Coombs  V.  Jordan,  262. 
Coombs   V.    Parsons,    496. 
Coombs   V.    Unknown    Per.,   195. 
Coombs   V.   Young,   85. 
Coon    V.    Bean,    204. 
Coon    V.    Brecket,    208. 
Cooper    V.    Adams,    163. 
Cooper    V.    Burns,    514. 
Cooper  V.    Cooper,    181,    321. 
Cooper   V.    Davis,    265. 
Cooper    V.    Foss,    253. 
Cooper    V.    Fox,    186 
Cooper   V.    King,    251. 
Cooper    V.    Loughlin,    273. 
Cooper  V.   Merritt,   220. 
Cooper   V.    Newland,   250. 
Cooper  V.   Ryon,   275,   279. 
Cooper  V.    iJlman,   251. 
Cooper    V.    Watson,    624. 
Cooper   V.    Whitney,    88. 
Cooper   V.    Wyatt,   140. 
Cooper  Grocery  Co.   v.  Peter,  124. 

1 


Cooter  V.   Dearborn,   494,  495. 

Cope   V.    Cope,    k!88. 

Cope    V.    Mecks,    558. 

Cope    V.    Wheeier,    281. 

Copeland  v.    Burkett,  85. 

Copcland   v.    Copeland,   510. 

Copeland  v.   Mercantile   Ins.   Co.,   569. 

Copeland    v.    Stevens,    140. 

Copeland  v.   Yaakum,  266. 

Copley   V.    Riddle,    521. 

Coppage   V.    Alexander's   Heirs,   204. 

Coquard    v.    Pearce,    75. 

Corbet  V.  Laurens,  56. 

Corbet  v.    Stone,   297. 

Corbin  v.   Cannon,   186. 

Corbin    v.    Dale,    430. 

Corbin   v.    Healy,    592,   609. 

Corbin   v.   Jackson,    193. 

Corby    v.    Corby,    31,    373. 

Corcoran   v.    Nailor,   443. 

Cordes  v.   Miller,   146. 

Cordon  v.   Sizer,   497. 

Cordova  v.  Hood,  217. 

Core   V.    Faupel,    492;    498. 

Corey   v.    Moore,    574. 

Corey   v.   The   People,   85. 

Corless  v.   Oxford,   207. 

Corley    v.    Parton,    188. 

Corlies    v.    Howland,    217,    218. 

Corning  v.   Gould,   154,   429. 

Corning   v.   Troy   Iron    Fac,   559,   595. 

Cornish    v.    Trees,    123,     514. 

Cornelius    v.     Ivins,    207. 

Cornelius  z'.   Smith,   374. 

Cornell    v.    Lamb,    25,    459. 

Cornell    v.   Jackson,    622. 

Cornell    v.    Whitney,    202. 

Cornett   v.    Purdy,    429. 

Cornog   V.    Fuller,    264. 

Cornall  v.   Evill,   233. 

Cornwall    v.    Wulff,    33,    298. 

Corpman  v.   Baccastow,  583. 

Corrothers    v.    Jolliffe,    197. 

Corrough   v.  Hamill,   220. 

Cortelyou   v.   Van    Brundt,   598. 

Cortelyou    v.    Hathaway,    245. 

Corwithe  v.   Grilling,  194. 

Cosby   V.    Ilonaker,    565. 

Costello    V.    Edson,    495,    504. 

Costello    V.    Graham,    593. 

Costello  V.   Meade,   264. 

Coster    V.    Clark,    86,    88. 

Costigan   v.   Gould,    576. 

Caswell    V.    Districh,    160. 

Cote    V.    Jones,    273. 

Coterell   v.    Long,    228. 

Cottee   V.    Richardson,   139. 

Cotter   V.    Layer,    417,    647. 

Cotterell   v.    Button,    505. 

Cotting  V.   Schermeshom,  399. 

Cottle   V.    Young,    601. 

Cotton    V.    Ward,    621. 

Cottell  V.  Adams,  250,  251. 

Cottrell  V.   Long,  231,  233. 

Cottrell  V.   Shepard,   253. 

Couch    V.    Eastham,    30. 

Couch  V.   Stratton,   117. 

Coudert  v.   Earl,   179. 

Coudert   v.    Savre,    433. 

Coulding    V.    Bunster,    253. 

Coulter   V.    Holland,    105. 

Coulton   V.   Col  ton,    373. 


TABLE   01'    CASES   CITED. 


[References  are  to  Sections.] 


Council   Bluffs  Lodge  v.   Bullards,   256. 

Counden    v.    Gierke,    312. 

County  of  Henry  v.   Bradshaw,  57G. 

Courand  v.   Vollmer,   572. 

Coursey  v.   Davis,   300. 

Cousins    V.    Wall,    3G8. 

Coutcher  v.  Muir's  Exr.,  233. 

Covendale  v.  Aldrich,    420. 

Cover  V.  Black,  583. 

Cowden   v.    St.   John,   16. 

Condrey  v.   Coit,  819. 

Cowell   V.    Colo.    Springs   Co.,   240. 

Cowell    V.    Lumley,    140,    151. 

Cowen    V.    Alsop,    368. 

Cow  felt    V.    Bower,    217. 

Cowles   V.    Cowles,    297,    302. 

Cowling  V.  Higginson,  438. 

Cowman   v.   Hall,    88. 

Cox  V.   Anderson's   Admr.,   392. 

Cox  V.   Boyce,  88. 

Cox    V.    Clough,     447. 

Cox    V.    Edward,     548. 

Cox    V.    Freedley,    697,    601. 

Cox   V.   Hoxie,   263. 

Cox   V.    Jagger,   85. 

Cox   V.   James,    601. 

Cox  V.   Ledward,   242. 

Cox    V.    Levison,    465. 

Cox   V.    Matthews,   448,    481. 

Cox  t'.    McBurney,    184. 

Cox  V.    McMullen,   593. 

Cox   V.    Sims,    408. 

Cox  V.    St.    Louis,   M.   &    S.    E.    Ry.    Co., 

467. 
Cox    V.    Strode,    625. 
Cox   V.    Voght,    582. 
Cox  V.  Wayne,  582. 
Cox  V.   Wayt,    574. 
Cox  V.   Wells,   558. 
Cox  V.   Wheeler,   257,    284. 
Coy   V.   Gaze,    629. 
Coyler   v.   Finch,   214. 
Cracken   v.   Jones,   497. 
Craddock   v.    Am.    Freehold,    279. 
Craft   V.   Webster,   251. 
Crafts   V.    Crafts,    197,    236. 
Crafts  r.    Hilbard,    590. 
Craig  z:  Ambrose,  30,  301. 
Craig  V.   Hawkins,   595.  ^_ 

Craig   7'.    Pinsm,    573.  "  , 

Craig   V.    Secrist,    638. 
Craig   I'.   Tappin,   263,   522. 
Craighead  z'.   Given,   642. 
Crain    v.    McGoon,    254. 
Crain    v.    Wright,    31. 
Cramer  z'    Burton,   590. 
Cramer  v.    Hoose,   307. 
Crance  v.    Collenbaugh,    619. 
Crane   v.    Bonnell,    231,   233. 
Crane  v.   Brigham,   15. 
Crane    v.    Deming,    236. 
Crane    v.    March,    251. 
Crane  v.  Marsh,  239. 
Crane  v.  Murry,  160. 
Crane   v.    Palmer,    94,   217. 
Crane   v.    Reeder,    659,   678. 
Crane  v.  Turner,  584. 
r'aveling  v.   West   End   Iron   Co.,   148. 
Cravens    »'.    Falconer,    633. 
rnwford   v.    Chapman,    147. 
Crawford   v.    F.dwards,    253. 
Crawford  v.  Forest  Oil  Co.,  64. 


Crawford  v.    Kirksey,    368. 

Crawford    v.    Meis,    54,    301, 

Crawford  v.   Munford,   246.  _ 

Crawley    v.    Blackman,    300. 

Craycroft    v.    Craycroft,    642. 

Creath    v.    Dale,    126. 

Creech  v.   Crockett,   170. 

Creekmire    !■.    Creekmire,    492,    496. 

Crenshaw  v.   Foster,   631. 

Cresap   v.    Cresap,   298,    408. 

Cresap   v.    Huston,    493. 

Cresfield  v.   Storr,   316. 

Cresinger  v.   Welch,   556.  .   . 

Cresson   v.    Miller,    559. 

Cresson  v.  Stout,  15. 

Crest  V.  Jacks,   190. 

Crews    V.    Threadgill,    231. 

Cribs   V.    Soule,   257. 

Crigler  v.   Mexico,   559. 

Crim  V.    Nelms,   126. 

Cripoen   v.   Chappel,    257. 

Crippen   v.    Morrison,    15. 

Criscoe    v.    Hambrick,     195. 

Crissfield  v.   Storr,   297,   625. 

Crisoin   v.   Hannavan,   504. 

Criswell    v.    Grumbling,    51,   562. 

Crittenden   v.   Johnson,    89. 

Crittenden    v.    Woodruff,    92. 

Croade    v.    Ingraham,    85,    97. 

Croesdale  v.  Von   Borgoburg,   191. 

Crocheron  v.  Jaques,  375. 

Crockett   v.    Crockett,    62. 

Crockett    v.    Althouse,    157. 

Croft  V.   Bunster,    253. 

Croft    V.    Croft,    634. 

Crombie  v.   Rosenbach,  242. 

Cromie   v.    Hoover,   18. 

Cromie's  Heirs  v.   Louisville   Home    Soc, 

641. 
Crompe  v.    Barrow,   414. 
Crommelin   v.   Thiess,    139. 
Cromwell  v.   Bank  of   Pittsburg,  280. 
Cromwell   v.    Tate,    572. 
Cromwell   v.   Woolly,    634. 
Cronin    v.    Richardson,    603. 
Crooker  v.  Crooker,  273. 
Crooker   v.   Frazier,    239. 
Crooker  v.  Holmes,  "236. 
Crop  V.  Norton,   373. 
Crosby    v.    Bradbury,    592. 
Crosby    v.    Crosby,    301. 
Crosby  v.  Hillner,  576. 
Crosby  v.    Huston,   282. 
Crosby  v.   Loon,   149. 
Crosby   Z'.   Wadsworth,   563. 
Crosland  v.    Rogers,    432. 
Cross   V.    Carson,    207. 
Cross  V.   Morristown,   601. 
Cross  V.   Robinson,  254. 
Croston  v.  Male,  307. 
Crouch   V.   Colbert,   493. 
Crouch  V.   Puryear,  64. 
Crouch  V.   Wabash,   208. 
Crow   V.    Mark,   191. 
Crow  V.   Tinslev.   239. 
Crowell  V.  Woodbury,  197. 
Crowley  v.  Crowley,  367. 
Crowley   v.   Riggs,    219. 
Crowning  v.    Cox,   277. 
Croxall  V.   Shercrd,  301,  322. 
Crozier  v.  Bray,  394,  408. 
Cruger  v.   Halliday,    377. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Cruger  v.  McLaury,  207,   461. 

Crump  V.   Norwood,   86,   316. 

Crutchcr  t.   Crutcher,   635. 

Cubitt   f.    Porter,    450. 

Cudlip  V.   Randall,  165. 

Cullen  z:   Motzer,    186. 

Cullin  f.   SprigR.  605. 

Cullwick  f.   Swindell,  15. 

Culver  v.  Rhodes,  495,  498. 

Culverhouse  f.    Worts,   160. 

Cumberland  v.  Codington,  288. 

Cumberland   f.  Graves,   371. 

Cummings  v.   Bramhall,   642. 

Cummings  z'.   Cassily,   553. 

Cumminps  f.  Cummings,   117,   640. 

Cummings  z:  Shaw,  52,  408. 

Cummings  v.  Smith,   458. 

Cummins  v.   VVoodruflf,   572. 

Cunday   r.    Hall,    185. 

Cunningham  z:    Bell,  307. 

Cunningham  v.   Hawkins,  247. 

Cunningham  v.   Helton,   168. 

Cunningham   v.   Houlton,    162. 

Cunningham  v.  Holton,  162. 

Cunningham   z:    Knight,   97. 

Cunningham   r.   Thornton,    590. 

Curl  z:  Lowell,  163. 

Curie  r.   Barrell,   521. 

Currier  v.   Barker,   134,   168. 

Currier  v.  Gale,   247,  254. 

Currier  v.    Perley,    168. 

Currier  f.    Sutherland,   126. 

Currier   v.    \\'oodward,    123. 

Curtin  v.    Patten,  5r>7. 

Curtis  f.   Board  of  Education,  205. 

Curtis   V.    Boquillas    Land    &    Cattle    Co., 

503. 
Curtis  V.  Cutler,  272. 
Curtis  r.    Flinn,   236. 
Curtis  V.   Fowler,   30,  301. 
Curtis  z'.  Galvin,  163. 
Curtis  V.   Gardner,   608. 
Curtis  V.  Hobart,   107. 
Curtis   V.   Keesler,    429. 
Curtis    V.    La    Grande    Water    Co.,     447, 

498. 
Curtis  v.  Leasia,  9. 
Curtis  T'.   Lyman,   259. 
Curtis   V.   Miller,   155. 
Curtis   V.   Moore,   277,   287. 
Curt's  V.  Norton,  606. 
Curtis  V.    Poland,   190. 
Curtis    V.    Rice,    322. 
Cusack  r.   Tweedy,   577. 
Gushing  v.   Ayer,  285. 
Gushing  v.  Blake,   362. 
Gushing  z:  Hurd,  239,  585. 
Gushing   v.    Thompson,   248. 
Cushman  -'.   Blanchard,   614. 
Gusham  v.  Luther,  236. 
Gusham   v.   Smith,   525. 
Cutler   V.    Davenport,    519. 
Cutler  V.  Doughty,  397. 
Cutler  V.  James,   581. 
Cutler  V.  Tufts,   608. 
Cutter   V.    Cambridge,    496. 
Cutting  V.    Carter,    68. 
Cutler  V.   Dickinson,   232. 
Cuvler  V.   Bush,   494. 
Cuyler  v.  Bradt,  176. 


lii 


Dacoway  v.   Gait,  585. 

Dadmun   v.    Lamson,    247,    505. 

Daggar  z\  Taylor,  217. 

Daggett   V.    Rankin,   200. 

Dahl   V.    Stakke,    015. 

Dahlberg  v.   Haeberle,   435. 

Dailey  v.    Beck,   626. 

Dakin    v.    Allen,    166. 

Dale    V.    Thurlow,    573. 

Dalton  V.   Dalton,   57. 

Daly  V.    Wise,    151. 

Damainville  v.   Mann,   139. 

Dame  z.    Dame,    9,    164. 

Danne   v.    Trustees,    166. 

Damron  v.   Damron,   431,  651. 

Dameron  v.   Eskridge,  277. 

Dana  v.  Jackson,   598. 

Dana  v.    Middlesex    Bank,   592. 

Dana   v.    Murray,    304. 

Dana   v.    Valentine,    452. 

Dand  v.   Kingscotte,  608. 

Danforth   v.    Beattie,   566. 

Danforth    v.    Smith,    108. 

Daniels   z'.    Brown,    160. 

Daniels    v.    Eisenlord,    237. 

Daniels   v.   Mutual    Ben.    Ins.   Co.,   276. 

Daniels  v.   Pond,   2,   65. 

Danley  z'.   Hays,   251. 

Danner    v.    Shissler,    479. 

Dawson  v.  Shirley,  570. 

Danzien    v.    Boyd,    603. 

Darby  v.  Darby,  185. 

Darby   v.    Hays,   251. 

Darby  v.  Mayer,   519. 

Darcy    v.    Askwith,    64. 

D'Arcy    v.    Blake,    87. 

D'Arcy    v.    Martyn,    130. 

Dark  v.  Johnson,   3,   465. 

Darley   z'.    Darley,   648. 

Darling   v.   Chanman,   354. 

Darlington  z'.   Painter,   435. 

Darrah  r.    Baird,   18. 

Darrow  v.   Calkins,   184. 

Dart    V.    Dart,    547. 

Dartmouth   College   v.   Woodward,   456. 

Dashiell   r.    Atty.   Gen.,    641. 

Daswell  v.   De   La  Lanza,   492. 

Daubenspeck    z'.    Piatt,    229. 

Daughady  ?'.   Paine,   217. 

Daughdrill   z'.   Sweeney,   266. 

Daugherty   v.    McGolgan,   269. 

Dave   V.    Johnson,    405. 

Davenport  v.   Eskew,   321. 

Davenport   v.    Farrar,    87. 

Davenport  v.   Ins.   Co.,  248. 

Davenport   v.    Lamb,    622. 

Davenport  v.  Lamson,   438. 

Davenport  v.  Ledring,   498. 

Davenport   v.    Murray,    217. 

Davenport   v.   Tarpin,   510. 

Davenport   v.    Tyrrel,    507. 

Davey  v.  Littlejohn,  583. 

David  V.  David,  197. 

David   Heiser   z'.    Rhodes,    446. 

Davidson  v.   Bates.   301,  640. 

Davidson   v.    Beatty,    493. 

Davidson   v.   Cooper,   553,   564. 

Davidson   v.    Cowan,   260,    583. 

Davidson   v.    Davidson,   321. 

Davidson   v.   Davis,   121. 


TABLE    OF    CASES    CITED. 


[References  are  to  Sections.] 


Davidson  v.  Hutchins,   301,  640. 

Davidson    f.    Johnston,    526. 

Davidson    v. '  Manson,    W. 

Davidson  v.   Richmond,   86. 

Davidson    v.    Young,    510. 

Daviess  v.   Speed,   35-1,   542. 

Daviny   v.   Hartshorn,    54. 

Davison  v.   Ramsay,   Co.,   531. 

Davis  V.   Andrews,   123,  558. 

Davis    V.    liean,    269. 

Davis  f.    Bechstein,   253. 

Davis  f.    Bowmar,   492. 

Davis  f.    Brandon,   5i'2. 

Davis  :■.   Buffam,   133. 

Davis  V.    Buford's   Exrs.,  399. 

Davis  f.   Burrell,   173. 

Davis   V.    Burroughs,    494. 

Davis  V.    Christian,   383. 

Davis  i:   Clark,   62. 

Davis   V.    Cooper,    554. 

Davis   V.    Cornelius,    100. 

Davis  V.   Cross,  577. 

Davis  V.    Darrow,   86. 

Davis  V.    Davis,   76,   237. 

Davis  V.   Eyton,   59,  140. 

Davis  f.    Fox,   560. 

Davis   V.    Gilliam,    61. 

Davis  V.   Hendricks,   653, 

Davis  V.  Handy,  606. 

Davis   V.    Hess,    604. 

Davis  V.   Higgins,   494,   574. 

Davis  V.   Hollingsworth,   37. 

Davis  V.   Jernigan,   201. 

Davis  V.   Judd,   572. 

Davis   z:    Mason,    79. 

Davis  V.   McGrew,  567. 

Davis  V.    Morris,    139. 

Davies  v.  Myers,  54. 

Davis  V.   Ney,  373. 

Davis  V.   Norton,  309. 

Davis  -c.:    Polland,   243,    246. 

Davis  V.   Rock  Creek,   368. 

Davis   V.    Rogers,   634. 

Davis  V.   Sawyer,   190. 

Davis  V.   Shroud,   494. 

Davis  V.   Smith,   161. 

Davis  V.  Taul,  642. 

Davis  V.   Thompson,   59. 

Davis  V.   Thurston,   162. 

Davis  I'.  Townsend,   50,  100. 

Davis   V.   Walker,    105,    109. 

Davis  V.   Wetherell,   258,   275. 

Davis  V.    Williams,   310. 

Davis  V.  Wilson,  307. 

Davis  V.   Winn,   284. 

Davis    Sewing    Machine    Co.    v.    Barnard, 

556. 
Davis   Sew.   M.   Co.   v.    Whitney,   127. 
Davone  v.    Fanning,   279. 
Dawson   v.   Girard    L.    Ins.    Co.,   217. 
Dawson  v.  Morton,  87. 
Dawler  v.    Rodes,   645. 
Dawson  z'.   Shirley,  570. 
Day  V.    Adams,   573,   590. 
Day   V.    Caton,    450. 
Day  V.  Cochrane,   80. 
Day  V.   Day,   635. 
Day  V.   Dunham,   229. 
Day  V.    Watson,    153. 
Day  V.    Walden,   433,   435. 
Dayton    v.    Stewart,    577. 
Deakins  v.  Hollis,  634. 


Deal    V.    Palmer,    13. 

Dean   v.    Bailey,    74. 

Dean    v.    Fuller,   573. 

Dean    v.    Mitchell,    88. 

Dean    v.    Shelly,    623. 

Dean    v.    Tucker,    498. 

Dean    v.    Wilcoxon,   504. 

Deane  v.   Erskine,   595. 

Deane  v.  Gregory,  158. 

Deane   v.    Gay,    559. 

Deare    v.    Carr,    270. 

De   Arguello   v.    Bours,   553. 

Dearing    v.    Thomas,    126. 

Deaver   v.    Deaver,    547. 

Deaver   v.    Parker,    239. 

Deaver   z\    Rice,    ICu. 

Deavitt    v.    Judevine,    285. 

De    Berrera    i'.    Frost,    245. 

Debow   V.    Colfax,    59. 

De    Bruhl    v.    Maas,    219. 

De   Camp   v.   Hall,   642. 

Decker    v.    Livingston,    149. 

Deconche    f.    Saveticr,    498. 

Dee   V.   King,    449. 

Deem  v.   Phillips,    ^54. 

Deemer   v.    Kessinger,   321. 

Deery   z'.   Cray,   552. 

Deffeliz  v.   Pico,   126. 

De    Forrest   v.    Byrne,    147. 

De    Forest  z:    Fulton    Ins.    Co.,   248. 

De   Forest  v.   Holum,   218. 

De   France   v.   De   France,   231. 

De   France   v.  Johnson,   95. 

Dcfellse   v.   Lake,   54. 

De   Gray   v.    Richardson,   80. 

De   Haro   z:    U.    S.,   465. 

De  Haven  v.   Laudell,  275. 

De  Haven  v.  Mussleman,  285. 

Deibler   v.    Barwick,    217. 

De    Lacey    v.    Tillman,    13. 

Dclafield   v.    Parish,   645. 

Delahay  v.  McConnell,  228. 

Dclaire   z'.    Keenen,    232. 

Dclancy  v.  Ganong,   148. 

Dclaney  v.   Fox,  157. 

Dclaney  v.   Root,  563. 

Delano    v.    Wilde,    529. 

Dclany   v.    Middleton,    301. 

Dclany  v.    Salina,   637. 

Dclashman  v.   Barry,  130. 

Dclaunay   z'.    Burnett,    522. 

Dc    Laurencel  v.   De   Broom,  640. 

De    La    Vega    v.    Butler,    504. 

De   La   Vega  z'.   League,  195. 

Dclavergne  v.   Morris,   625. 

Delnionico    v.    Guillaume,    185. 

De   Loach   v.   Delk,    160. 

Deloney  v.  Hutchison,  176,  185. 

Dekeman  v.    .\rnold,  574. 

Demarest  v.    Willard,   147,   149. 

Demarest  v.   Wyncoop,  247,  2J7. 

Dcmill   V.    Reid,   310,   640. 

Deming   v.    Bullitt,    572. 

Deming  v.  Colt,   184. 

Deming  v,  Williams,  79. 

De   Mott   V.    Benson,   236. 

Den   V.    Adams,   164. 

Den   V.   Aweling,   407. 

Den   z:    Demerest,    80,   821. 

Den    v.    Dimon,    239,    258. 

Den    V.    Drake,    164. 

Den  V.   Flora,  481. 

liii 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Den  V.  Hauks,  648,  666. 

Den   V.    Hay,   562. 

Den   V.    Helmes,    609. 

Den  V.  Howell,   163. 

Den   V.    Hunt,   49.'>. 

Den  V.  Johnson,   134. 

Den  v.   Kenny,  62. 

Den    V.    Kip,    498. 

Den    V.    Manners,    385. 

Den  V.   Mcintosh,    168. 

Den   V.    Neison,    479. 

Den   V.    Partee,    579. 

Den   V.   Post,    139,    148. 

Den  V.   Pukey,   312. 

Den  V.   Richman,  583,  585. 

Den  V.    Smith,   474. 

Den   1'.    Snitcher,    40. 

Den  V.   Spinning,   254. 

Den   V.    Stockton,    243. 

Den   V.   Troutman,   380. 

Dcncomb  v.  Duncomb,   86. 

De   Nichols  v.   Saunders,  245. 

Dennett    v.    Atherton,    623. 

Dennett   v.    Dennett,    296,    536. 

Dennis  v.   Miller,   155,   168. 

Dennett   v.    Pass.,    461. 

Dennett  v.   Penobscott  Co.,  166. 

Dennick  v.   Cuddily,   246.  ' 

Dennick  v.   Ekdahl,   144. 

Dennis  v.   Wilson,   608. 

Dennison  v.   Reed,   148. 

Denny  v.   Palmer,   236. 

Denpree  v.  Denpree,   647. 

Denson    v.    Beagley,    637. 

Denson  v.   Mitchell,   408. 

Denster   i:   McCamus,   582. 

Dentler   v.    State,    533. 

Denton   v.    Donner,    368. 

Denton  v.    Leddell,   428. 

Dentzel   v.    VValdie,   524. 

Denver    &    R.    G.    Co.    v.    Church,    2. 

Denver  &  S.   F.    R.    Co.   v.    School   Dist., 

576. 
Dc   Pare  Co.  v.   Reynen,  171. 
Depiilron  v.   Young,   494. 
Derby    v.  "Taylor,    139. 
Derry  v.  Derry,  367,  368. 
Derry   Bank  v.   Webster,  571. 
Descarlett   v.    Dennett,    209. 
Desloge  v.   Peace,   465,   466. 
Despard  v.   Wallbridge,   157. 
Detroit,  etc.,   R.  Co.  v.   Powers,  456. 
Detweiier   v.   Breckenkamp,   255. 
Detweiler  v.   Schuttheis,   503. 
Deusch   V.    Questa,   74. 
Devacht   v.   Newsam,   157. 
Devecmon   v.   Shaw,    118,   393. 
De    Vaughn    v.    McLeroy,    301. 
Development    Co.    of    Ariz.    v.    Occidental 

Oil    Co.,    367. 
Devenbell  v.   Hamilton,  583. 
Devin   v.    Eagleson,   260. 
Devin    v.    Hendershott,    282,    624. 
Devin  v.   Himer,    553. 
Devinney  v.  Reynolds,  669. 
Devore   v.    Sunderland,   614. 
Devore    v.    Woodruff,    231. 
Devyr  v.    Schaefer,   505. 
Dew  V.   Kuehn,   31. 
Dewey    v.    Kimball,    658. 
Dewey  v.  Moyer,  368. 

liv 


Dewey  r.  National  Bond  &  Security  Co., 

658. 
Dewey  v.   Payne,   139. 
Dewey  v.  Van    Deusen,  240,  274. 
Dewitt   f.    Eldred,    42,   45. 
De   Witt   V.   Middleton,   596. 
De   Witt  z:   Moulton,   581. 
Dewitt  V.   Pierson,    153. 
Dewitt   r.    Ring,    180. 
Dewitt  V.   San   Francisco,   177. 
De    Wolf    I'.    Hayden,    623. 
Dexter   v.   Arnold,   247. 
Dexter    v.    Inches,    640. 
Dexter   v.    King,    146. 
Dexter  v.   Mauley,   144. 
Dexter  v.   Shepard,  279. 
Dey   V.   Dey,   368,   640. 
Dey   V.    Dunham,    229,    584. 
De   Yampert   v.    Brown,   257. 
Dias  V.   Merle,   266. 
Dibble  v.    Rogers,   510. 
Dibrell   v.    Smith,    218. 
Dick    V.    Mawry,   250. 
Dickason  v.   Williams,  242. 
Dickenson    v.    Chase,    219. 
Dickenson    v.    Duck,    217. 
Dickenson   v.    Duckworth,    255. 
Dickenson   v.  Gray,   113. 
Dickerman    v.    Lust,    273. 
Dickerson   v.    Bridges,    239. 
Dickerson   v.    Small,   278. 
Dickert   v.    Weise,    278. 
Dickey    v.    Kennedy,    384. 
Dickey    r.    McCuUough,    148. 
Dickey   v.    Thompson,    285. 
Dickie   v.    Carter,    633. 
Dickinson   v.    Bank,    294,    408. 
Dickinson   v.    Brown,    521. 
Dickinson  v.  Bruden,  494. 
Dickinson    v.    Davis,    367. 
Dickinson   v.   Dickinson,  6. 
Dickinson  v.    Duckworth,   266. 
Dickinson   f.    Fisher,   219. 
Dickinson   v.   Glenney,    585. 
Dickinson  v.   Godspeed,   167. 
Dickinson    v.   Griggsville   Nat.    Bank,    408. 
Dickinson    v.     Holmes,    624. 
Dickinson    v.    Parvis,    642. 
Dickinson   v.   Williams,   191. 
Dickinson   v.    Worcester,    445. 
Dickson   r.    Sledge,   511. 
Dickson    v.    Todd,    273. 
Diefendorf   v.    Diefendorf,   565. 
Dientzer    v.    Bell,    126. 
Dietrick    v.    Noel.    492. 
Digman   7<.   McCoIlum,   584. 
Dike   V.    Miller,    578. 
Dikeman   v.    .Arnold,   576,   578. 
Dill     V.     Bowen,    556. 
Dilworth  r.   Gusky,  30. 
Dilworth   v.   Mayfield,    185. 
Dimond  v.   Billingslea,  94. 
Dimond  v.   Bostick,  642. 
Dingley  v.   Buffum,  18. 
Dingley  v.   Dingley,   302. 
Dinner  v.  Van   Dyke,  264. 
Dinsmore   z'.   Matthews,   260. 
Dinsmore  v.   Rowse,   258,  286. 
Dippers  V.  Tunbrid^re    Wells,   69. 
Diver   v.    Diver,    1H7. 
Dix  V.  Jaquay,  62,   320. 


TABLE    OF    CASES    CITED. 


[References  are  to  Sections.] 


Dixfield    v.    Newton,    250. 

Dixon  V.   Ahem,    129,   497. 

Dixon  V.    Baty,    157. 

Dixon  V.   Bentley,    307. 

Dixon   V.    Cook,    496. 

Dixon  V.    Doe,   583. 

Dixon    V.    Finnegan,    134. 

Dixon   V.    NiccoUs,    149. 

Dixon    V.    Saville.    87. 

Doane   v.    Badger,    190. 

Doane  v.   Doane,  54. 

Doane  r.   Lake,  647. 

Doane   v.    Wilcutt,    512,    592. 

Dobbin   v.    Rex,    197. 

Dobson    V.    Land,    248. 

Dobson   V.    Kacey,   279. 

Docking  v.    Frazell,    16. 

Dod    V.    Pcrryn,    302. 

Dodd  V.   Acklon,   156. 

Dodd    V.    Wakeman,    368. 

Dodd    V.    Winship,    301,    640. 

Dodge    V.    Cole,    368. 

Dodge   V.    Dodge,    518. 

Dodge  V.   Evans,   217,   218. 

Dodge   V.    McClintock,    466. 

Dodge    V.    Cotter,    259. 

Dodge    City    Wat.    &    Light    Co.    v.    Al- 

fafa    Irr.    Co.,    607. 
Dodson   V.    Ball,   322. 
Dodson    V.    Clark,    264. 
Doe  V.  Ashburner,    135. 
Doe   V.    Bank    of    Cleveland,    585. 
Doe  V.    Barton,    247. 
Doe  V.   Batetnan,   139. 
Doe  V.   Beardsley,   520. 
Doe    V.    Beanclark,    387. 
Doe    V.    Bedford,    529. 
Doe  V.   Bell,    134. 
Doe  V.   Benjamin,    135. 
Doe  V.    Bevan,    140. 
Doe  V.   Biggs,   360. 
Doe   V.    Bird,   186. 
Doe  V.   Blacker,   569. 
Doe  V.   Bliss,   148. 
Doe  V.   Bond,    148. 
Doe   V.    Botts,    178. 
Doe   V.    Brabant,    308. 
Doe   V.    Briggs,    347. 
Doe    V.    Burlington,    90. 
Doe    V.    Carleton,    388. 
Doe  V.   Carter,    140. 
Doe  V.   Challis,   310. 
Doe  V.   Charlton,   322. 
Doe  V.   Collier,   360. 
Doe  V.  Collis,  32,  22. 
Doe   V.    Considine,    297. 
Doe   V.    Cooper,    312. 
Doe  V.  Cox,  164. 
Doe   V.    Curlington,    66. 
Doe  V.  David,  140. 
Doe  V.  Dickson,  130. 
Doc  V.   Dowall,   619. 
Doe  V.  Dowdall,   514. 
Doe  V.   Dunbar,    168. 
Doe   V.    Eslava,    504. 
Doe  V.   Ewart,    341. 
Doe  V.   Fonnereau,  322.  391. 
Doe    r.    Ford,    297. 
Foe  r'.  CstarRe,  314. 
Doe  V.   n'-rN-in.   '><>8. 
Doe    V.    Glovrr.    208. 
Doe  -J.  CwinncU,   1U5. 


Doe  V.   Hales,   245. 

Doe    V.    Hamfrey,    360. 

Doe  V.   Harvey,   322. 

Doe   V.    Hawlss,    140. 

Doe   V.    Hazell,    108. 

Doe   V.    Heneage,    392. 

Doe  V.   Holmes,    701. 

Doe  V.   Hull,  170. 

Doe   V.    Humphries,    169. 

Doe  z'.   Ironmonger,  322. 

Doe   V.   Jepson,   148. 

Doe    V.    Jones,    157. 

Doe  V.   Ladd,   371. 

Doe  V.   Lea,   301. 

Doe    V.    Lock,    608. 

Doe   V.    Luxton,    47. 

Doe  V.   Mace.   59. 

Doe   V.   Masters,    150. 

Doe   V.    Mcllvaine,    520. 

Doe    V.    McKaeg,    163. 

Doe  V.   Moore,   301. 

Doe   V.   Morgan,   297. 

Doe   V.    Morphett,    168. 

Doe   V.    Murrell,    157. 

Doe   V.    Naylor,    574. 

Doe  V.  Nowell,  301. 

Doe   V.   Oliver,    305. 

Doe   V.    Palmer,    109. 

Doe  V.  Passingham,  343. 

Doe  V.   Patten,    31. 

Doe   V.    Paul,    150. 

Doe  V.    Peck,   208. 

Doe   V.    Perryn,   301. 

Doe  V.   Pett,   155. 

Doe  V.   Phillipps,    148. 

Doe  V.   Porter,    164. 

Doe  V.    Prettyman,    r)56. 

Doe    V.    Prigg,    301,    302. 

Doe  V.  Prince,   163. 

Doe   V.   Provoost,   301,   302. 

Doe  V.  Rees,  157. 

Doe    V.    Richards,    30. 

Doe  V.  Ries,  135. 

Doe   V.    Rivers,    87. 

Doe    V.    Rooke,    4i;{. 

Doe   V.    Salkeld,    344. 

Doe  V.  Scarborough,  385. 

Doe  V.   Scuddamore,    81. 

Doe  V.    Selby,   298. 

Doe   V.    Sheffield,    642. 

Doe  V.   Shelby,   310. 

Doe   V.    Shipphard,    309. 

Doe  V.  Smith,   168. 

Doe    V.    Stevenson,    298. 

Doe  V.   Thompson,   168. 

Doe  V.  Tidbury,    157. 

Doe  V.   Tunnel,   247. 

Doe  V.   Turner,    59. 

Doe  V.   Underdown,    642. 

Doe  V.  Walker,  131. 

Doe   V.   Watts, -164. 

Doe  V.  Wilkinson,   168. 

Doe   V.   Windlass,   150. 

Doe  V.   Wood,    165. 

Doe   V.    Worsley,    304. 

Doherty   v,    Dolon,    220. 

Doherty  v.   Matsell.    157,  300. 

Dohl  V.  Stakke,  616. 

Doidge    V.    Bowers.    164. 

Dolbear  v.  Worduft.  277. 

Dole  V.   Hughes,    -iriO. 

Dole   V.   Keycs,   640. 

Iv 


TABLE   OF   CASES   CITED. 


[licfcrcnces  are  to  Sections.] 


Dollard  v.   Roberts,   146. 

Donahue  r.    McNicliols,   399. 

Donaldson  i'.  Wilson,  14(5. 

Donelson   r.    Polk,    139. 

Donk    Bros.    Coal    Co.    v.    Leavitt,    169, 

Donley   v.    Hays,   251. 

Donnell    f.    Clark,    42C. 

Donnelly   r.    Donnelly,   95. 

Donnelly  v.   Eastes,   295. 

Donnelly  v.   lidenlen,  4C3. 

Donnelly  v.    Frick  &   Co.,   146. 

Donnels  v.    Edwards,   17(>. 

Donnor  v.  Quartermas,  197. 

Doody   V.    Pierce,   254. 

Dooley  v.   Stringhani,   66. 

Dooley   v.    W'olcott.    5S(>. 

DooJittle  V.  Eddy,  16G,  468. 

Doolittle  V.   Ilolton,  5:.'8. 

Doolittle   V.    Lewis,    277. 

Door  V.   School    Dist.,    495. 

Dorling  v.    Blandrard,   301. 

Dorr  V.   Bates   Mfg.   Co.,  441. 

Don   f.    Hallaran,   210. 

Dorr   V.    Lovering,    301,    312. 

Dorr  V.  Reynolds,  590,  595. 

Dorr  V.    School    Dist..    495. 

Dorrance  v.   Jones,    140. 

Dorrill   v.   Johnson,    164. 

Dorrow   v.  Calpins,   185. 

Dorsey  v.  Dorsey,  272. 

Dorsey  v.   Eagle,  58. 

Dorsey    v.    Smith,    54. 

Dortch   V.    Benton,    126. 

Doswell  V.  De  La  Lanza,  504. 

Dothard    v.    Denson.    492,    493. 

Dotterer    v.    Pike,    308. 

Doty   V.    Burdick,    173. 

Doty  V.  Mitchell,  73. 

Dougal   I'.    Fryer,    512. 

Dougherty  v.  McColgan,  236. 

Doughty  V.   Owen,  14. 

Douglas  V.   Dickson,   92. 

Douglas  V.   Bishop,   255. 

Douglass  V.  Cline,  245. 

Douglass  V.   Cruger,  301,  382. 

Douglass   V.    Darin,    240. 

Douglass  V.    Sharpe,   408. 

Douglass  V.   Shumway,  4. 

Douglass   V.    Wiggins,    66. 

Dougrey  v.  Topping,  100. 

Doupe  V.   Gerrin,   146. 

Douthit  V.  Hipp,  273. 

Dow  V.   Dow,   85.  , 

Dow   V.    Jewell,    193. 

Dow   V.   McKenney,    497. 

Dowd    V.    Tucker,    368. 

Dowdel!  V.  Orphans'  Home,  496., 

Dowell   V.   Dew,   417. 

Dowletts  V.   Daniel,   548. 

Dowling   V.    Reber,    301,   304. 

Downer   v.    Wilson,    255,    258. 

Downes  v.   Grazebrook,  279. 

Downes   f.    Turner,   208. 

Downey   v.    Strau.se.    190. 

Downing  v.   Houtshon,    54. 

Downing  v.   Marshall,  641.  642. 

Downing   i'.    Palmeteer,    262. 

Downing    v.    Wherrin,    396. 

Doyle   V.   Dovie,   642. 

Dovle   V.    Robbing,    76. 

Doyle  V.   Mulladv,    397. 

Doyle  V.  Peerless  Pet.  Co.,  516. 

Ivi 


Doyle  V.   White,   236. 

Doyley  v.  Atty.    Gen.,   378. 

Dozier   f.   Gregory,   (>6. 

Dozier  v.   Toalson,   80. 

Drake  v.   Drake,   412. 

Drake  v.  Moore,  123. 

Drake  v.  Root,  243. 

Drake  v.   Wells,   4,  537. 

Drane  v.  Gregory,  193. 

Drane  v.   Gunter,  282. 

Draper   v.    Shoot,   495. 

Drayton  r.   Marshall,  247,   276. 

Dreiske   v.    Lumber   Co.,   18. 

Dresser  v.    Dresser,  373. 

Drew   V.    Billings    Drew    Co.,    156,   168. 

Drew  V.   Rust,  287. 

Drew   V.   Swift,   595.   603. 

Drew  V.  Morrill,   247. 

Drew  V.  Wakefield,  641. 

Dreyfus  v.   Hirt,  149. 

Drinan   v.   Nichols,   278. 

Drinkard   v.    Hempinstall,    IC*. 

Drinkwater    i'.    Drinkwater,    149. 

Drown  v.    Smith,   61,   543. 

Druid   Park,  etc.   Co.  t.   Dettinger,  375, 

Drummond   v.    Richards,   236. 

Drummond  f.    Sant,   247. 

Drury   v.    Clark,    273. 

Drury  v.  Drury,  117. 

Drury  v.    Foster,    553. 

Drury  v.   Treniont    Imp.    Co.,   253,   565. 

Dubois  V.  Bank,  243. 

Dubois   V.    Beaver,    8. 

Dubois   V.    Bowles,    243. 

Dubois  v.   Hull,   217. 

Dubois  V.    Kelly,    18,   133. 

Dubuque   R.   R.   7'.  Litchfield,   519. 

Dubs   V.    Dubs,    79,    348. 

Duck   V.   Sherman,    239. 

Ducker   v.    Belt,   273. 

Ducker  v.  Del  Genovese,  143. 

Duckland   i'.    Rosseau,   243. 

Duckworth   v.   Jordan.    642. 

Dudley   v.    Bergen,    257,    258. 

Dudley    v.    Davenport,    106. 

Dudley   v.    Hurst,    13. 

Duffer    V.    Wilson,    157. 

Duffield   V.    Duffiekl.   301. 

Duffield   V.    line.    208,    592. 

Duffield  V.  IMoirows.   637. 

Duffy    V.    Calvert,    383. 

Duffy  V.    N.    Y.   etc.,    R.   R.,  626. 

Duffy   V.    Willis.    127. 

Dufour   V.    Percira,   644. 

Dugan    V.    Hollins,    199. 

Duhring  v.    Dulnin!;,    86. 

Duke  V.   Brandt.    85. 

Duke   V.    Dyches,    631. 

Duke   V.   Harper.   157,   163. 

Dukes   V.    Spangler,   577. 

Dulaney  v.    Middleton,    302. 

Dumey  v.    Schaeffer,   204. 

Dummerston   7\   Newfa-'-e.   85. 

Dumont   v.    Dumont,    637. 

Dumont    v.    Kellogg,    444. 

Dumper   v.    Svmmons.    141. 

Dunbrock  v.    Neall.   348. 

Duncan  v.  Central  Pas.  R.   R.  Co.,  433. 

Duncan    v.    City.    102. 

Duncan   v.   Dick,    110. 

Duncan   v.   Duncan.    118. 

Duncan  v.  Forrer,  176. 


TABLE   OF    CASES   CITED. 


[References  are  to  Sections.] 


Duncan   v.   Hodges,   553. 

Duncan   v.    Tandon,   3(i8. 

Duncan   v.   Moore,    126. 

Duncan    v.    Smith,    242. 

Dunch  V.   Kent,   3S3. 

Dunck  Co.  V.   Webber,  135,   14 

Duncome  v.   Felt,   02. 

Duncon  v.  Asphalt  Co.,  275. 

Dundas  v.    Bowler,   249. 

Dundas   v.    Hitchcock,    558. 

Dunham  v.  Osborne,   SO,   291. 

Dunham  v.    Railway   Co.,   238. 

Dunham    v.    Williams,    001. 

Dunklee   v.    Adams,    237. 

Dunklee  t.   Wilton   R.   R.,   691. 

Dunkley  v.  Van   Buren,  270. 

Dunlap   V.    Burnett,    583. 

Dunlop   V.   Dunlop,    645. 

Dunlop    V.    Richards,    308. 

Dunn  z:  Bk.  of  Mobile,  388. 

Dunn   V.    Bryan,    02. 

Dunn  V.   Cartwright,   130. 

Dunn    V.    Games,   502. 

Dunn    V.    Meriweather,    629. 

Dunn   V.    Raley,   228. 

Dunn   V.   Rodgers,   253. 

Dunn    V,    Rothermel,    134. 

Dunn   V.    Stevers,    558. 

Dunn    v.    Stowers,    637. 

Dumming  v.  Dean   Nat.  Bank,  281. 

Dunning  v.  Ocean  Nat.   Bk.,  376. 

Dunply   V.    Sullivan,   503. 

Dunscomb  v.    Dunscomb,    79. 

Dunsett  V.   Bank  of   U.   States,   105. 

Dunsmuir    v.    Port   Angeles    Water,    etc., 

Co.,    12. 
Dunton   m    Brown,  556,   557. 
Dunwoodie   v.    Reed,    310. 
Dupon    V.    Walden,    505. 
Dupuy  V.   Strong,    178. 
Duquois   V.    Hull,    221. 
Durand  v.  Tsaacks,   243. 
Durando  v.   Durando,   294. 
Durant   v.   Davis,   219. 
Durel  V.   Boisvlance,   443.  , 

Duren  v.   Presberry,   595,   696. 
Duren    v.    Sinclair,    504. 
Durett  V.    Briggs,   218. 
Durham  v.  Angier,   85,  101. 
Durham  v.   Heirs  of  Daugherty,  218. 
Denham   v.   Holeman,    493. 
Durham  v.  Townsend,   497. 
Durham    v.    Wick,    220. 
Durland  v.   Seller,   127. 
Durrett   v.    Whiting,   275. 
Durnter   v.    Musacchia,    197. 
Dustin    V.    Cowdy,    173. 
Dutton    V.    Rust,    604. 
Dutton    V.    Stuart,    97. 
Duty   V.    Graham.    236. 
Duval   V.   Bibb.   217,  545. 
Duval    V.    Marshall,    267. 
Dwight  V.    Eastman,    302. 
Dwinell  v.  Bliss,  576. 
Dwinell   v.    Perlcy,    251. 
Dye  V.  Cook,   125. 
Dyer  v.  City  of  St.  Paul,  448. 
Dyer  v.  Clark,   86. 
Dyer  v.  Dyer,   367. 
Dyer  v.   San  ford,  467,   608. 
Dvcr   V.    Shurtlieff,    279. 
Dyer   V.   Toothaker,   264. 


Dyer  v.  Wightman,   151. 

Dyers  v.   Ins.    Co.,   248. 

Dyett    V.     North     Amer.     Coal    Co.,     73, 

348. 
Dyett  V.  Pendleton,  153. 


Eagle,  etc.,  Co.  v.   Bank,   493. 

Eagle   Fire    Ins.    Co.    'j.    Lent,    275. 

Eaines   v.   Hardin,    231. 

Eardley   v.   Granville,  3. 

Earl    of    Darlington    7\    Pulteney,    417. 

Earl    of    Ross   v.    Wainnian,    3. 

Earle  v.   Fiske,  588. 

Earle  v.  Hosiery  Co.,  257. 

Earnhardt  v.   Clement,   653. 

Earnhart   v.    Earnhart,    322. 

East  V.  Garrett,   45,   393. 

Eastabrook   v.    Hapgood,   54, 

Easterly   v.    Kemy,   370. 

Eastern    Milling    Co.    v.    Eastern    E.xport 

Co.,   248. 
Eastern   R.   v.  Allen,    495. 
East  Jersey   Co.    v.    Wright,    17. 
Eastman   v.    Batchelder,   237. 
Eastman    v.    Foster,    251. 
Eastman   v.    St.    .Anthony   etc.    Co.,   590. 
East  Omaha  Land  Co.   v.  Jeffreys,  596. 
Eastwood   V.    Crane,   053. 
Eaton    V.    Barnes,    374. 
Eaton  V.  Boston,  etc.,  R.  Co.,  1. 
Eaton   V.    Eaton,    550,   557. 
Eaton    V.   Green,    231,    232. 
Eaton    V.    Knowles,    253. 
Eaton   V.    Lyman,    025. 
Eaton   V.    Simonds,   239,   257. 
Eaton    V.    Smith,    590. 
Eaton   V.   Tallniadge,    247. 
Eaton   V.    Whiting,    226,   234. 
Eaves   f.    Estes,    15. 
Eberle  v.    Fisher,   85. 
Ebert    v.    Gerding,    258, 
Eberts   v.    Fisher,    195. 
Ebrand   v.    Uaneer,   367. 
Echoles    V.    Hubbard,    493. 
Echols   V.    Cheney,   569. 
Ecke  V.    Fetzer,   147. 
Eckerson   v.   Crippen,    429. 
Eckman   v.   Fckman,   542. 
Eckroyd  v.   Coggeshell,   206. 
Edde-  V.    Burrus,   598. 
Eddie   V.    Slimmons,    560. 
Eddy  V.  Chace.  435. 
Eddy   V.    St.    Marks.    498. 
Edelen  v.   Hardy,   633. 
Edelstein  v.   Carlile,   503. 
Edinger    v.    Bain,    125. 
Edinger  v.  Heiser,   366. 
Kdington   v.    Harper,  228,  229. 
Edgar   v.   Stevenson,   434. 
Edge  V.    Worthington.    213. 
Edgerton   7:    Page,    14  4,    153. 
Edgerton    ;•.    Wolf,   556. 
Edgerton  v.   Young,   251. 
Fdmonds  v.  Crenshaw,  380. 
Edsell  V.    Buchanan.   247. 
Kdso   r.   Munsell,    505. 
Edwards  v.   Anderson,   217. 
Edwards   v.    Bibb.    397. 
Fd wards  v    Edwards.    221,   367. 
Edwards,  ex  parte,   213. 

Ivii 


TABLE  OF   CASES   CITED. 


[References  are  to  Sections.] 


Edwards  v.  Hale.  170,   171. 

Edwards    v.    Latimer,    193. 

Edwards  v.   McClung,   426. 

Edwards  v.    McKernan,   238. 

Edwards  v.  Mo.   Kan.,  etc.,  Ry.  Co.,  260. 

Edwards   v.    Pope,   524. 

Edwards  v.   Slater,   405. 

Edwards   Exrs.   v.  Trumbull,   215,   584. 

Edwards  v.   Thom,    574,    581. 

Edwards   v.    University,    498. 

Edwards   r.    Varick,    385. 

Edwards    v.    WoodrufF,    597. 

Eftingcr   v.   Lewis,   493. 

Erc    v.    Medlar,    494. 

ERcrton   v.    Brownlow,    331. 

Ehle   V.    Brown,   583. 

Ehrmann    i'.    Iloskins,    640, 

Eighmer   v.    Thayer,    191. 

Eignmer  v.   Thayer,   191. 

Eitel   I'.   Foote,   533. 

Jikey   V.    Inge,    496. 

Ela  V.   Edwards,   633. 

Elam    V.    Parkhill,    56,   300. 

Elder    v.    Reed,    98. 

Elder  v.   Riel,  98. 

Elder  V.  Robbin,  87. 

Elder   V.    Rouse,    236. 

Eldowers    v.    Eldowers,    388. 

Eldridge  v.  Eldridge,  381. 

I'llkins  V.   Carsey,   301. 

Ellen  V.   Ellen,  504. 

Ellen   Mutual   L.   &   B.   Co.   v.  Hass,  279. 

Ellicott   V.   Welch,    94,   217. 

Elliott  V.   Aiken,   146,   153. 

Elliott   V.    Brent,    634. 

Elliott   V.    Davis,    562. 

Elliott  V.   Dycke,    493,    495. 

Elliott   V.    Eddins,   532. 

Elliott's    Estate   v.    Wilson,    480. 

Elliott   V.   Fitchburg,   444. 

Elliott  V.   Maxwell,   231. 

Elliott   V.    Patton,    266. 

Elliott  V.  Pearl,  494,  495. 

Elliott  V.   Sleeper,   558,  571. 

Elliott  V.   Smith,   157. 

Elliott   V.    Stone,    163. 

Elliott   V.   Turner,    209. 

Elliott    V.    Wood,    278. 

Elliott   V.    Wright,   13. 

Ellis   V.    Diddy,.  100. 

Ellis   V.    Davis,    122. 

Ellis  V.  Hatfield,   482. 

Ellis  V.   Hussey,  243. 

Ellis   V.    Leek,    272. 

Ellis   V.   Messervie,    253. 

El'is  V.   Temple,  217. 

K'lis   V.   Young,    586. 

IC'lison   V.    Ellison,   417. 

Klls  V.    Mo.    Pac.   Ry.,  578. 

Ells   V.    Tonelev,    583. 

Ellsworth  z:  Central   R.  R.,  576. 

i:ilsworth    V.    Cook,    80. 

Illlsworth   V.    Lockwood,    278. 

(CImendorf   v.    Carmichael,    519. 

I'llmendorf   v.   Taylor,    498. 

Elmer   v.   Loper,    244,    269. 

Elmore    v.    Marks,    577. 

Elnell  V.  Universalist  Gen.  Convention. 

041. 
El    Passo  V.   Bank,   559. 
Elsea  V.  Adkins,  608. 
Elsey   V.   Metcalf,    577. 
Elston  V.  Chamberlain,  231. 

Iviii 


Elston   V.   Robinson,   123. 

El  well   V.    Burnside,   190. 

Elwell   V.    Hinckley,    498. 

Elwell  V.  Shaw,   509,  572. 

Elwes  V.   Maw,   16. 

Elwood   V.    Blackf.,    558. 

Elwood   r.    Klock,    97,    296. 

Ely   V.    Ely,   221,    254. 

Ely  V.   McGuire,   243. 

Ely  V.  Pike,  382. 

Ely   V.    Schofield,    261,   582. 

Ely  V.    Wilcox,   582. 

limans   v.   Turnbull,    489. 

Embree    v.    Ellis,    113. 

Embrey   v.    Owen,    444. 

Emerson   v.    Euroi)ean    R.    R.,   238. 

I'^merson  v.  Mooney,  6I<8. 

Emerson  v.    Simpson,   202,   627. 

Emery   v.    Chase,    541. 

Emery  v.   Owings,   236. 

Emison   v.    Risque,   221. 

Emmanuel   College  v.    Evans,   225 

Emmert   v.    Hays,    472. 

Emmons  v.   Murray,   557. 

Emmons   v.    Scudder,    170. 

Emmons  v.   Lowden,   275. 

Emrich    v.    Gilbert,    125. 

Enders   v.    Lasco,    373. 

England  v.   Tarleton,   251. 

English  V.    Behle,   33. 

English  V.  Carney,  251. 

English   V.    Marvin,    134. 

English   V.    Ouster,    186. 

English   V.    Russell,   217. 

Ennis  v.    Harmony    Ins.    Co.,   248. 

Eno   V.    Del    Vecchio,    449. 

Enos  V.  Southerland,  266. 

Ensign   v.    Colburn,    265. 

Ensminger  v.   Davis,   598. 

Ensminger   v.    People,    599. 

Epiey  V.   Withrow,  585. 

Equitable  Life  Ins.   Co.  v.   Bostwick,   253. 

Erickson    v.    Jones,     18. 

Erskine    v.    Townsend,     222,    243. 

Erwin   v.   Olmstead,   186,    495. 

Escher  v.  Simmons,  218. 

Esdon   V.    Colburn,    160. 

Eskridge   v.    McClure,    217,    221. 

Eslana    v.    LePetrc,    273. 

Esmond   v.    Tarbox,    596. 

Esper  V.   Hefferman,   240. 

Essex  V.  Atkins,  348. 

Estabrook   v.   Smith,   619,    622. 

Estep    V.    Hutchman,    526. 

Esterly   v.    Purdy,    236. 

Estes  V.   Fry,   276. 

Estes  V.   Kedsey,   173. 

Esty  V.    Baker,   163,   592. 

Esty    V.    Clark,    473. 

Esty  V.   Currier,    606. 

Etheridge   v.    Vernoy,    273. 

Etowah    Mining    Co.    v.    Parker,    494. 

Euston   V.    Friday,   256. 

Eustace  v.    Scawen,   177. 

Evangelical    Home    v.    Buffalo    Hydraulic 

Ass.,   435. 
Evans  v.    Bear,   380. 
Evans    V.    Brittain,    179. 
Evans   v.    Chew,    376. 
Evans  v.  Elliott,  245. 
Evans   v.    Gale,    560. 
Evans  v.  Gibbs,  579. 


TABLE   OF   CASKS   CITED. 


[References  are  to  Sections.] 


Evans  v.    Howell,    450. 

Evans   z:    Huffman,    247. 

Evans   v.    Inglehart,    58. 

Evans  v.   Kimball,   242. 

Evans   v.   King,   371. 

Evans   v.    N orris,    237. 

Evans  v.    Pierson,    118. 

Evans  v.   Pike,   275. 

Evans  v.   Roberts,   529,  563. 

Evans   v.    Smith,    644. 

Evans   v-    Summerlin,    558. 

Evans   v.    Weatherhead,    322. 

Evans  r.   Webb,  85. 

Evansville   r.    Page,   603. 

Everett   v.    Stone,    583. 

Evers   v.    Challis,    399. 

Eversol  v.   Early,  619. 

Everson   v.    McMullen,   87. 

Everts  r.    Agner,   579. 

Everts  v.  Beach,   191. 

Evertson  v.   Booth,  290. 

Evitts  V.    Roth,    494. 

Ewersten  v.   Gerstenberg,   205. 

Ewing   v.    Burnett,    495,    690. 

Ewing  V.    Savary,    559. 

Ewing  V.    Shropshire,   45. 

Ewing   V.    Smith,    73,    348. 

Ewing  V.   Winter,    301. 

Excelsior  Ins.   Co.  v.  Ins.  Co.,  248. 

Eyer   v.    Beck,    640. 

Eyster  v.   Graff,    243. 

Eyster   v.   Hathaway,    574. 


Fabcns  v.   Fabens,   640. 

Faber  v.   Police,   51,   536. 

Fair  v.  Brown,  247. 

Fair  v.    Stevenot,   586. 

Fairbank    v.    Cudworth,    265. 

Fairbanks   r.    Metcalf,    579. 

Fairchild    v.    Chastelleaux,    69. 

Fairchild   v.    Marshall,   118. 

Faith   V.    Bowles,    205. 

Fales   V.    Fales,    195. 

Fales   V.   Conway,    235. 

Fall    V.    County    Sutter,    454,    456. 

Fallas  V.  Pierce,  584. 

Fallon  V.   Chidester,   187. 

Falls  of   Neuse   Mfg.    Co.   v.   Brook,    494. 

Fallwood   V.   Graham,    595. 

Faloon    7".    Linghauser,    504. 

Fame    v.    Winnons,    248. 

F.  &  M.  Schaefer  Brewing  Co.  v.  Molbs, 

566. 
Fanning  v.   Doane,   33. 
Fanning   v.    Wilcox,   504. 
Farabow   v.   Green,   202. 
Farley   v.   Craig,    460,    462. 
Farmer  v.  Curtis,  266. 
Farmer   v.    Grose,    233. 
Farmer    v.    Peterson,    559. 
Farmers  Bk.  v.   Bronson,  247,  259. 
Farmer's  Bank  v.  Corder,  181. 
Farmers'  Bank  v.  Glenn,  625. 
Farmers    Bank   v.    Hageluken,    74. 
Farmers'  Ins.,  etc.,   Co.   v.   Edwards,  254. 
Farmers'    Loan,    etc.,    Co.    v.    Hendrick- 

son,    2. 
Farmers  Loan,    etc.,   Co.   v.   Hughes,   282. 
farmers  L.  &  T.  Co.  v.  Maltby,  582,  584. 


Farm   Land  Co.   v.   Raynor,   279. 

Farnham   v.   Clements,   308. 

Farnham  v.  Thompson,   205. 

Farnsworth   v.   Taylor,    605. 

Farnsworth  v.  West,  16. 

Farnum   v.    Farhum,   302,   312. 

Farnum   v.    Hefner,    140. 

Farr   v.    Doxtaler,    236. 

Farr   v.    Gilreath,    362. 

Farr  v.  Smith,   190. 

Farrall  v.    Lovel,    246. 

Farrand    v.    Petit,    399. 

Farrant   v.    Ware,    633. 

Farrar  v.  Ay  res,   640. 

Farrar   v.   Chauffetete,   15,    529. 

Farrar   v.    Fessenden,    581. 

Farrar   v.    Heinrich,    493. 

Farrar  v.   Stackpole,  606. 

Farrell   v.   Parlier,   275. 

Farrington  v.  Barr,   329. 

Farrington  v.  Duval,  367. 

Farrington  v.  Kimball,   139. 

Farrion  v.  New   Eng.   Mortgage,  240,   574. 

Farris   v.    Dudley,    445. 

Farris   v.    Houston,    267. 

Farris   v.    Rogers,    204. 

Farson    v.    Goodale,    169. 

Farwell    v.    Cotting,    87. 

Farwell    v.    Lloyd,    367. 

Farwell    v.    Rogers,    559. 

Fash    V.    Blake,    547. 

Fash   V.    Ravesies,   583. 

Fassett   v.    Smith,    257. 

Fatheree   v.    Lawrence,   633. 

Faught   V.    Holway,    495,    497. 

Faulkner  v.  Adams,   576,    577. 

Faulkner    v.    Breckenborough,    254. 

Faulkner  v.   Cody,   235,   272. 

Fawcett   v.    Kinney,    518. 

Fay   V.    Brewer,   66,    300. 

Fay   V.    Cheney,    87,    2:.'). 

Fay  V.    Muzzey,    16,    606. 

Fay   V.    Sylvester,    301. 

Fay    V.    Taft,    347,    365. 

Fay  V.   Wood,   512. 

Fears  v.   Brooks,   72. 

Feary  v.  Booth,  73. 

Febeiger  v.   Craighead,  239. 

Feely  v.   Bryan,   228,  232. 

Feger    v.    Keefer,    529. 

Fehlhower  v.  St.   Louis,  161. 

Feimster   7>.   Johnston,    15. 

Felch    V.    Hooper,    305. 

Felch   V.    Taylor.    139,    239. 

Felder  v.  Murphy,   273. 

Feldes  v.   Duncan,   127. 

Fell    V.    Young,    581. 

Fellman's    Admr.    v.    Landis,    681. 

Fellows   V.    Bunn,    114. 

Fellows    V.    King,    217. 

Fellows  V.    Smith,    368. 

Fclton   V.    Pifm.m,    582. 

Fenley   v.    Johnson.    304. 

Fenn  v.   Holme,   531. 

Fenn    v.    Smart.    "''7. 

Fentiman   f.    Smith,    467. 

Fenton  v.   Montgomery,  146. 

Fenton  7'.    Steere.   195. 

Fenwick  v.   Floyd,   5.')2. 

Ferguson  v.  Glassford,  264. 

Ferguson    v.    Hedges,    642. 

lix 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Ferguson  v.  Tbomasson,  301.  631. 

Ferguson  v.   Waller  &  Co.,  liJ6. 

Fernald  v.  Linscott,  239. 

Fernbacher   v.   Fernbachcr,   408. 

Ferrett  v.   Taylor,  (>13.    . 

Ferrin  v.    Kenny,    163. 

Ferris  v.  Coover,  632,  594. 

Ferris    v.    Crawford,    230. 

Ferris  v.   Ferris,  234. 

Ferris  v.  Uarsbea,  619. 

Ferris  v.  Irving,  569. 

Ferris  v.   Van  Ingen,  86. 

Ferris  v.   Van   Vechten,  368. 

Fessenden  v.  Taft,  236. 

Fetron   v.   Merriwether,   272,   659. 

Fetters   v.    Humphreys,    427,    432. 

Fettiplace   v.    Gorges,   348. 

Fewbold   v.   Glenn,    204. 

Ficher  v.  N.  T.  Co.,  676. 

Fichtner  v.   Fichtner's  Assignee,  97. 

Fie  V.  Taylor,  «87. 

Field  V.  Jackson,  68. 

Field  V.  Mills,  139. 

Field   V.    Swan,   245. 

Field   V.  Tanner,   178,   188. 

Fielder  v.   Darien,  233. 

Fields   V.    Fish,   228, 

Fields  V.  Watson,  322,  397. 

Fields  V.   Whitfield,   393. 

Fifield    V.    Sperry,    275. 

Fifty  Associates  v.  Grace,  156. 

Fifty   .-Vssociates  v.   Howland,   150,  211. 

Fightmaster    v.    Beasley,    190. 

liibert  v.   Hoff,   186. 

Filchrist  v.  Stevenson,  377. 

lilliter  v.   Phippard,  66. 

1  illraan  v.   Divris,  368. 

Filson  V.   Filson,   634. 

1  inch  V.   Finch,   367. 

Finch    V.    Winchelsea,   260. 

1-indlay  v.   Smith,  62. 

I'infield  v.   National   Bank,  11. 

Fink  V.   Le.   Koy,   247. 

1- inlay   v.   King's   Lessee,   202,  206. 

h'inley  v.    SimpsoYi,    587. 

1-iiiley  V.    U.   S.   Bank,  273. 

Finnegan  v.   Prindeville,  125. 

Finney  v.  Earl  of  Winchelsea,  583. 

Finney  v.   St.   Louis,   170. 

Firemen's  Ins.  Co.  v.  McMillan,  579. 

Firestone  v.   Firstone,   92. 

First  Nat.    Bank  v.   Briggs,    126. 

First  Nat.   Bk.   v.  Caldwell,  215. 

First   Nat.    Bk.   v.   Gage,   245. 

First  Nat.   Bank  v.  Hayzlett,  260,  583. 

First   National   Bank   v.    Honeyman,    252, 

r)82. 

First   Parish,   etc.,   v.   Cole,   340. 

Fischer  v.   Laack,   439. 

Fish  V.   Howland,   218. 

Fisher  v.   Beckwith,   576. 

Fisher  v.  Cowles,  264,  574. 

Fisher  v.   Deering,   147. 

Fisher  v.  Demerson,  192. 

Fisher  v.   Edington,  500. 

Fisher  V.   Fields,  30,  371. 

Fisher   v.   Grimes,   86. 

Fisher  v.   Hall,   576. 

Fisher  v.  Hampton  Transp.  Co.,  367. 

Fisher  v.  Jansen,   146. 

Fisher  v.   Lighthall,  146. 


Fisher  v,   Laack,  60S. 

Fisher  v.   Morgan,   113. 

Fisher  v.   Otis,  236,  254. 

Fisher  v.   Provin,  181. 

Fisher  v.   Smith,  601. 

Fisher  v.  Southern  L.  &  T.  Co.,  569. 

Fisher  v.  Wister,  298. 

Fisk  V.   Potter,  217. 

Fisk   V.    Stubbs,    560. 

Fiske  V.  Fiske,  237. 

Fiske  V.  Tolman,  253. 

Fitch  V.   Baldwin,  615. 

Fitch   V.    Bunch,    578. 

Fitch  V.  Casey,  532. 

Fitch  V.  Cotheal,  257,  258. 

Fitchburg  Cotton  Co.  v.  Melvin,  55. 

Fitts    V.    Beardsley,    250. 

Fitz  V.  Smallbrook,  406. 

Fitzgerald    v.    Barker,    253. 

Fitzgerald  v.   Reed,  556. 

Fitzhaugh  v.   Wilcox,  556. 

Fitzhugh  V.   Barnard,   580. 

Fitzhugh  V.   Croghan,   573,  614. 

Fitzpatrick  v.   Fitzpatrick,  640. 

Fitzpatrick  v.  Graham,  572. 

Flagg  V.    Bean,    84. 

Flagg  V.  Eames,  609. 

Flagg  V.  Flagg,  244,   525. 

Flagg  V.   Mann,   187. 

Flaherty  v.  McCormick,  492. 

Flanagan  Est.  v.  Land  Co.,  217. 
Flanagan  v.    Philadelphia,   599. 
Flanagan   v.    Wescott,   252. 

Flanders  v.   Lamphear,  237. 

Flanery  v.   Kone,  31. 

Flayler  v.  Malloy,  260. 

Fleet   V.   Dorlond,   54. 

Fleming  v.   Burgin,   585. 

Fleming   v.  Griswold,   505. 

Flenen   v.    Flenen,   57. 

Fleschner  v.   Sumpter,   585. 

Fletcher  v.   Chase,   242. 

Fletcher  v.   Fletcher,  39. 

Fletcher  v.   Holmes,   273. 

Fletcher    v.    Mansur,    562. 

Fletcher  v.   McFarlane,    143. 

Fletcher  v.   Peck,   520,   521. 

Fletchers  v.  Severs,  476. 

Fletcher  v.   State   Bank,  617. 

Flinn    v.    Barber,    218. 

Flinn   v.    Owen,    633. 

Flinn   r.   Powers,   557. 

Flint  V.    Clinton,    Co.,   377. 

Flint  V.   Steadman,   322. 

Flitcaft  V.  Title,  554. 

Flood   V.    Yanders,    572. 

Florentine    v.    Barton,    527. 

Florence    t'.    Hopkins,    195. 

Flower    V.    El  wood,    280. 

Floyd    V.     Floyd,     168,    648. 

Floyer    v.    Lovingtbn,    236. 

Flynn    v.    Hancock,    124. 

Flynn    v.    Williams,    619. 

Flynt   V.    Arnold,    582,    584. 

Flynt  V.   Hubbard,   367. 

Fogarty  v.   Stack,   356. 

Folny  V.   Palmer,   269. 

Foley  V.  Cowgill,   579. 

Foley   V.    Harrison,    520. 

Foley  V.  Howard,   561,  »678. 

Foley  V.  Wyetts,   448. 


TABLE   OF    CASES    CITED. 


[References  are  to  Sections.] 


Folk   V.   Vara,    567,    576. 

Folsom  V.   Carli,   123. 

Folsotn   V.    Lewis,   146. 

Folts  V.   Huntley,    152. 

Fonde  v.   Sage,   207,   576. 

Fonnereau  v.   Fonnereau,   392. 

Fontain  r-   Ravenel,   641. 

Fontaine  v.   Boatman's  Sav.   Inst.,  676. 

Foose   V.    Whitmore,    373. 

Foote  V.  Burnett,  612. 

Foote  V.   Colvin,  160,  563. 

Foote  V.   Gooch,   15. 

Foote  V.    Burnett,    616. 

Forbes  v.   Gracey  Con.   Vir.   Min.   Co.,   3. 

Forbes   v.  Hall,   521. 

Forbes  v.  Moffatt,   242. 

Forbes  v.   Smiley,   166. 

Force   v.    Force,    376. 

Forepaugh  v.   Appoid,   585. 

Ford  V.  Azill,   217,   221. 

Ford   V.  Cobb,   16,   300. 

Ford   V.    Cook,    397. 

Ford   V.    Fellows,   510. 

Ford  V.   Flint,   323,  609. 

Ford  V.   Ford,  399. 

Ford  V.  Holmes,  498. 

Ford    V,  James,    577. 

Ford   V.   Johnson,   30,   39. 

Ford  V.  Knap,  190. 

Ford    V.    Nesbit,    278. 

Ford   V.    Philpot,   269. 

Ford   V.    Smith,    217,    221. 

Ford   V.    Wakworth,    624. 

Ford  V.   Whitlock,   466. 

Ford  V.  Wilson,  495. 

Fordyce  v.   Hicks,   126. 

Fordyce  v.   Willis,   374. 

Forlont  v.   Borolin,   245. 

Forrest   r.    Falgoust,   441. 

Forse  v.   Hembling,   647. 

Forshaw  v.   Higginson,  377. 

Forsyth   v.    Forsyth,   207. 

Forsythe    v.    Ballance,    581. 

Forsythe  v.    Price,   58. 

Fort    V.    Fort,   631. 

Forth  V.  Chapman,  398. 

Forth   r.    Norfolk,   239. 

Fortman   v.   Ruggles,   533. 

Fortune   v.    Buck,    634. 

Fort  Wayne  Co.  v.   Sihler,  236,   515. 

Forward   -.:    Deetz,   186. 

Forwood   V.    Forwood,   117. 

Fosdick   V.    Gooding,   110. 

Fosher  v.    Guilliams,   118. 

Foss   *.   Crisp,    605. 

Foss   V.    Staunton,    147. 

Foster  v.  Browning,  465. 

Foster  v.  City  of  Buffalo,  433,  439. 

Foster  v.   Dennison,   548. 

Foster  v.  Dwinel,  80. 

Foster   v.    Equitable   Ins.    Co.,   248. 

Foster  v.    Foster,   433,   617. 

Foster  v.  Hickox,  273. 

Foster   v.    HilHard,    54,    258. 

Foster  v.  Leland,  127. 

Foster  v.  Mansfield,  579. 

Foster  v.   Marshall,   58. 

Foster   v.    McKenna,    822,   640. 

Foster   v.    Prentiss,    13. 

Foster  v.   Rice,   233. 

Foster  v.  Ried,  189. 


Foster  v.   Robinson,  58. 

Foster  v.  Roche,  197. 

Foster   v.    Smith,    298. 

Foster  v.  Thompson,   625. 

Foster  v.  Vale,  374. 

Foster    v.    Van    Reed,    248. 

Fouch   V.   Wilson,    218. 

Foulke  V.   Bond,   495,   498. 

Fountain  v.   Hendley,   122, 

Fountain,   etc.,    Co.    r.    Buckleheimer,   30. 

Fouts   V.   Milliken,    206. 

Fowler  v.  Bowery  Sav.  Bank,  374. 

Fowler   v.    Bush,    256. 

Fowler  v.    Depan,   399. 

Fowler   z>.    Fay,    253,    257. 

Fowler  v.  Heirs   of   Rust,   217. 

Fowler   v.    Ingersoll,    399. 

Fowler  v.    Palmer,    248. 

Fowler   v.    Poling,    619. 

Fowler  v.   Shearer,   97,   558. 

Fowler  Cycle  Works  v.  Fraser  &  Chal- 
mers,   146. 

Fox  V.   Heffner,   231. 

Fox  V.   Porter,   399. 

Fox  V.    Swann,    141. 

Fox   V.    Turtle,    533. 

Fox  V.   Union    Sugar   Co.,   605 

Fox    V.   Watson,    272. 

Fox   V.    Wharton,    272. 

Foxcroft  V.   Barnes,   559. 

Foxwell  V.  Slaughter,  260. 

Frail   v.    Ellis,    217. 

Frakes    v.    Elliott,    186. 

Frampton  v.   Blum,    464. 

France  v.   Armbuster,   275. 

Francis   v.    Million,    187. 

Francis   v.    Wells,    217. 

Franciscus   v.    Reigart,    343. 

Frank  v.  Colonial  &  U.  S.  Mortg.  Co., 
277,    282. 

Frank  v.   Frank,  200,  322. 

Frank   v.   Pickle,    236. 

Frank  v.  Stratford-Hancock,  159,  170. 

Frankland  Land  Co.  v.  Wea  Gas,  etc., 
Co.,  126. 

Franklin  v.  Ayers,  233,   266. 

Franklin   v.   Beegle,   273. 

Franklin   v.    Br-own,    153. 

Franklin  v.  Cunningham,  491. 

Franklin  v.   Gorham,   255. 

Franklin  v.  Merida,  157. 

Franklin  v.   Osgood,  282,    407. 

Franklin   v.    Palmer,    157. 

Franks  v.    Chapman,   633. 

Franzee  v.   Tnslee,   242. 

Frary   v.    Booth,    558. 

Fraser  v.   Child,   368. 

Fray  v.  Drew,  255. 

Frazer  v.  Dieton,  640. 

Frazer  v.   Frisbie   Furniture  Co.,   666. 

Frazier  v.   Brownlow,    78. 

Frazier  v.   Frazier,   642. 

Frederick  v.  Gray,  186. 

Freeburg   v.    Eksell,   251. 

Freeby  v.   Tupper,   239. 

Freed   v.    Brown,   556. 

Freedman  v.   Goodwin,   520. 

Freeman  v.   Baldwin,  229. 

Freeman  v.   Burnham,   368. 

Freeman  v.  Foster,  617,  622. 

Izi 


TABLE  OF   CASES   CITED. 


[References  are  to  Sections.] 


Freeman  r.  Headly,  166. 

Freeman   v.   Parsley,   412. 

Freeman    v.    Scofield,   274. 

Freeman  v.   Shroeder,   260. 

Freeman  v.  Wilson,  233. 

Freer  v.  Stolenbur,  133. 

Freidley  v.   Hamilton,   584. 

Freke    v.    Carberry,    629. 

French   v.    Barron,    269. 

French   v.    Burns,   233. 

French  v.  Crosby,   108. 

French   v.    Fuller,    167. 

French  v.   Marstin,   438. 

French  v.    Mehan,    181. 

French  r.  Patterson,  532. 

French   v.    Pratt,    104. 

French   v.    Rollins,    84. 

French    v.    Spencer,    511. 

French   v.   Sturdivant,   229. 

French  v.   Williams,  438. 

Frew   V.    Clark,    631,   634. 

Frey  v.   Lowden,   434. 

Freytag  v.  Hoeland,  246. 

Friedley  v.  Giddings,   9. 

Friedley    v.    Hamilton,    229,    260. 

Friend  i'.  Friend,  603. 

Frink    v.    Bellis,    616. 

Frink  v.  Hampden  Ins.  Co.,  248. 

Frink   v.    Le    Roy,   243. 

Frink  v.   Roe,   569. 

Frisbie    z'.    Bateman,    245. 

Frisbie  v.   Whitney,    522. 

Fritsch  v.  Klansig,  406. 

Fritsche   v.    Fritsche,    441. 

Frontin   v.   Small,    623. 

Frost   V.    Beekman,    259,    679. 

Frost    V.    Deering,    571. 

Frost   V.    Frost,    75. 

Frost   V.    Meth,    512.- 

Frost  V.    Peacock,    87. 

Frost  V.    Raymond,   623. 

Frost   V.    Spaulding,    595,    603. 

Frothingham  v.  McKusick,   265. 

Fry  V.    Scott,    99,   178. 

Fry    V,    Vanderhoof,    257. 

Fuhr    V.    Dean,    173,    465. 

Fullenwider   v.  Watson,   373. 

Fuller   V.    Chamier,    322. 

Fuller  Co.  V.  Manhattan  Const.   Co.,  144, 

153. 
Fuller  V.   Construction   Co.,  157. 
Fuller  V.   Hubbard,    220. 
Fuller  V.  Ruby,  151,  153. 
Fuller   V.    Stout,    638. 
Fuller    V.    Sweet,    157. 
Fulton  V,  Norton,  14. 
Fulton  V.  Stuart,  139. 
Funk   V.    Creswell,   545. 
Funk  V.   Eggleston,   414. 
Funk  V.   Hensler,   367. 
Funk  V.  McReynold,  257. 
Funk  V.   Voneida,  616,  628. 
Funkhouser  v.  Langkopf,  426. 
Furbish    v.   Goodwin,   248,    250. 
Furbish  v.   Sears,   237. 
Furguson  v.  Tweedy,  81. 
Furlong  v.  Garrett,  494,  496. 
Furlong   v.    Leary,    164. 
Furnas   v.    Durgin,   258. 
Fumess    v.    Fox,    801. 

Ixii 


Furnish  v.  Lilly,   658. 
Furrow   v.   Athey,   126. 


Gadberry  v.  Shepard,  202,  627. 

Gaerrers  v.   Bailleno,  368. 

Gaffney    v.    Peeler,    75,    512. 

GaflEord  v.    Strouse,   496. 

Gage  V.   Barnes,   608. 

Gage  V.   Brewster,  619. 

Gage  V.   Consumers  Elec.   Light  Co.,  658. 

Gage    V.    Gage,    471. 

Gage   V.   Jenkinson,   253. 

Gage   V.    School    District    No.    7,    204. 

Gage  V.   Stafford,   274. 

Gage  V.    Ward,   93. 

Gaines  v.   Brockerhoff,  231. 

Gaines  v.    Saunders,   494. 

Gaines   v.    Stiles,    502. 

Gaines  v.  Walker,  273. 

Gaion    7'.    Williams,    373. 

Galbraith   v.   Engleke,   590. 

Galbraith   v.    Fleming,    108. 

Galbraith  v.  Gedge,   184. 

Gale   V.   Coburn,   543. 

Gale  V.   Edwards,   149,   617. 

Gale  V.   Nixon,   142,   462. 

Gale   V.   Price,   92. 

Gallagher   v.    Kilkeary,    633. 

Gallagher   v.    Mars,    217. 

Gallagher  v.   Northrup,    367. 

Gallagher    v.    Reilly,    168. 

Galland   v.   Jackman,    554,    586. 

Gallego   V.   Atty.    Gen.,    641. 

Galliers   v.    Moss,    241. 

Galloway  v.    Bonesteel,    432. 

Galloway  v.   Carter,   393. 

Galloway  v.   Finley,  217,  521. 

Galpin    v.    Page,    530. 

Gals    V.    Wilhite,    641. 

Gait    V.    Galloway,    521. 

Galusha   v.    Serman,    257. 

Galveston   R.   R.   v.   Cowdrey,   238. 

Galveston   R.    R.   v.   Stealy,   562, 

Gal  way    v.    Mulchow,    583. 

Gamble   v.    McClure,    532. 

Gammon   v.    Freeman,   92. 

Gankler   7'.    Moran.    30,    321. 

Gann  v.  Che«;ter,  217,  219. 

Gnnnon    v.    Peterson,    68. 

Garabaldi    v.    Shattuck.    511. 

Garaty   v.    Dubose,    122. 

Garcia   v.    Callander,    231. 

Garciay   Perea   v.    Barela,    634. 

Gardenville,    etc.,    Assn.    v.    Walker,    463, 

464. 
Gardiner   r.    Dering,    57. 
Gardiner  Man.   Co.   v.   Heald,   193. 
Gardiner   v.    Miles,    100. 
Gardiner   v.    Miller,    505. 
Gardiner   v.    Tate,    58. 
Gardinier  v.  Furey,  181. 
Gardner  v.   Douglass,   125. 
(Gardner    v.    Gardner,    348. 
r;o,.^npr    7'.    Gooch,    234. 
Gardner   v.    Greene,    294. 
Gardner    v.    Heatt.    265. 
Gardner   v.   Hopper,   301. 
Gardner  v.  Keteltas,  131,  158. 


TABLE   OF    CASES   CITED. 


[References  a/re  to  Sections.] 


Gardner  Mfg.   Co.  v.  Heald,  4. 

Gardner   v.   Niles,   616. 

Gardner   v.    Pace,    471,    564. 

Gardt   v.    Brown,    590. 

Garfield  v.   Williams,   614. 

Garland  v.   Crow,   54,   116. 

Garland    v.    Richeson,    251. 

Garland    r.    Wynn,    522. 

Garlington  v.  Copeland,  504. 

Garner  v.   Garner,   362. 

Garner  v.   Jones,   181. 

Garnett  Smelting  Co.   v.   Watts,   106. 

Gamsey    f.    Munday,    362. 

Garnsey   v.   Rogers,   253. 

Garrard   v.    Tuck,    165. 

Garrett  v.   Cheshire,  125. 

Garrett   v.    Ramsey,   493,   494. 

Garrett    v.    Sharp,    435. 

Garrison    v.    Cox,    195. 

Garrison  t:   Monaghan,   126. 

Garrison    v.    Sanford,    61C. 

Garson   v.    Green,   217,   218. 

Garvin     v.     Garvin,     497. 

Garwood   i'.    Garwood,   583. 

Garza  v.   Howell,   238,   273. 

Gascoigne    v.    Thwing,    367. 

Gaskell    v.    Viquecney,    275. 

Gaskins    v.    Allen,    557. 

Gass   V.    Wilhite,    641. 

Gassatt   v.   Grout,    566. 

Gasser    v.    Crittenden,    566. 

Gates   V.    Green,    151. 

Gates    V.    Seibert,    27. 

Gaven    v.    Allen,    387. 

Gaw  V.   Allen,   617. 

Gay  V.   Boston  &  Albany  R.   R.  Co.,  438. 

Gaylord  v.    Dodge,  85. 

Gaylord  v.   Respass,   498. 

Gaze    V.    Hoyt,    565. 

Gear  v.    Burnham,   2. 

Gee  V.  Gee,  367. 

Gee    V.    Young,    58. 

Geer   v.   Hamblin,   291,   296. 

Geiger   v.    Geiger,    116. 

Geissmann    v.    Wolf,    577. 

Gelston  v.   Burr,  245. 

Gelston    v.    Thompson,   267. 

Gen.   Ass.  Presby.  Ch.  v.  Alexander,  291. 

General    Electric    Co.    v.    Equipment    Co., 

10. 
Genet  v.   Delaware  Co.,  17. 
Genobles  v.  West,  90. 
Genter  v.    Morrison,   574. 
Genther    v.    Fuller,    532. 
Geoag  V.   Morgan,   321. 
George    ?•.    Baker,    240. 
George  v.    Butler,   236. 
George  v.    Wood,   246,    582. 
Georgetown   Water  Co.  v.   Fidelity  Trust 

Co..     245. 
Georgia    Chemical    Works    v.     Cartledge, 

242,     258. 
Gerald  v.   Gerald,   592. 
Gerber  v.  Grubell,  443. 
Gerbrich  v.  Freitag,  631. 
Gerdine   v.    Menage,    268,    284. 
Gerham  v.   Erdman,   495. 
Gerhart  v.   Tucker.  233.   266. 
German   Assn.   v.   Scholler,  662. 
German  Bank  v.    Real   Est.   Co.,  259. 
German  v.   Machin,  186. 


Germania  Ins.  Co.  v.  Casey,  286. 

Gernet   v.   Lynn,    505. 

Gerrard   v.   Cook,    430. 

Gerrish   v.    Black,   244. 

Gerrish  v.  Clough,  445. 

Gerrish  v.   Hill,    123. 

Gerry   v.   Stimpson,    329. 

Gessell   v.    Bougher,    633. 

Gest  V.   Packwood,   228. 

Ghegan  v.    Young,   143. 

Gibbens   v.   Gibbens,    301. 

Gibbens  v.   Shepard,   298. 

Gibbert  v.  Peteler,  430. 

Gibbs  V.   Penny,  231,  233. 

Gibbs  V.   Ross,    147,   149. 

Gibbs    V.    Swift,    574,    593. 

Gibson   v.    Barrett,   566. 

Gibson    v.    Brown,    582. 

Gibson  V.    Chouteau,   514,   623. 

Gibson   v.   Crehore,   64,    255. 

Gibson    v.    Decias,    368. 

Gibson   V.    Farley,    471. 

Gibson   V.    Foote,    363,   367. 

Gibson    v.    Gibson,    505. 

Gibson   v.    Jones,    278. 

Gibson    v.    McCormick,    288. 

Gibson    V.    Minet,    548. 

Gibson    v.    Seymour,    394. 

Gibson   V.   Shearer,   559. 

Gibson   v.    Soper,    556. 

Giddings   v.    Turgeon,    034. 

Gideon   v.   Struve,   126. 

Gifford   V.   Choate,   52,   408. 

Gifford   V.   Corrigan,    577,   57S. 

Gil    V.    Bronwer,    642. 

Gilbert  v.   Dypeley,  269. 

Gilbert   v.    Gilbert,   C34. 

Gilbert   v.    Knox,    633. 

Gilbert  v.  Lawrence,  275. 

Gilbert  v.   N.   Amer.    Fire   Ins.    Co., 

579 
Gilbert   v.    Penn,   238. 
Gilchrist    v.    Boswick,    187. 
Giles    V.    Anslow,    298. 
Giles  V.   Baremore,    247,    278. 
Giles  V.   Comstock,   154. 
Giles  V.  Little,  52,  408. 
Giles    V.    Pratt,    587. 
Giles  V.   Simonds,   466,  563. 
Gilkeson    v.    Thompson,    264,    274. 
Gilkie  v.   Marsh,   45. 
Gill   V.    Dearmand,    10.      ' 
Gill   V.    Fauntleroy,    186,   686. 
Gill  V.   Logan,   322. 
Gill   V.    Lyon,    285. 
Gill   V.   Middleton,   146. 
Gillan  v.  Hutchinson,  626. 
Gillespie  v.    Bailey,  557. 
Gillespie  v.  Miller,  401. 
Gillespie  v.   Thomas,    152. 
Gillett  V.    Balcom,    272. 
Gillham   v.    Mustin,   631. 
Gillig  V.   Maass,   260. 
Gillis   V.    Brown,    86. 
Gillis  V.   Harris,  631. 
Gillis  V.  Martin,  231,  269. 
Gilman  v.   Bown,  217. 
Gilman  v.   Gilman,   191. 
Gilman  v.  Haven,  619. 
Gilman    v.    111.    &    Miss.    Tel.    Co., 

276. 

Ixiii 


576, 


246, 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Gilman  v.   Moody,   236. 

Gilman    v.    Wills,    246. 

Gilmer   v.   Lime   Point,   526. 

Gilinore  v.  Driscoll,  448. 

Gilpin   V.   Adams,   149. 

Gilpin  V.   Hollingsworth,   180. 

Gilsun   V.    Gilson,   228. 

Given   V.   Doe,   &42,  645. 

Givcns   V.    McCalmont,   62',   246. 

Giadding    i:    Warner,    270. 

Gladwyn    v.    llitchman,    272. 

Glass   r.    Glass,   633. 

Glass    V.    Hulburt,    590. 

Glen  V.  Bank  of  U.   S.,  97. 

Glidden    v.    Bennett,    14. 

Glidden    v.    Struppler,    510. 

Glide    V.    Dwyer,    275. 

Globe    Nav.    Co.    v.    Maryland    Casualty 

Co.,    508. 
Cloniger  v.    Franklin  Coal  Co.,   4. 
Cilos   V.    Hoban,    658. 
Glos   r.    Michon,   658. 
(ilos  V.  Miller,   496. 
Glos   V.   Talcott,   658. 
G.oss  V.  Kelly,  260. 
Glover   v.    Payne,    231,   236. 
Glover   v.   Powell,    599. 
Glover  v.    Reid,   29S,   408. 
Glover   v.    Stillson,    178,    408. 
Glover  V.    Thomas,   515. 
Gluck    V.    Elkan,    208. 
Godard    v.    Railroad    Co.,    164. 
Godard  v.  S.   C.   R.   R.,  168. 
Goddard  v.   Amory,  640. 
Goddard  v.   Chase,   15. 
Goddard   v.    Sawyer,   249. 
Goddard   v.    Whitney,   393. 
Godfrey   v.    Humphrey,    30. 
Godman    v.    Simons,    195,   307. 
Goebel    v.    Wolf,    301. 
Goelett    V.    Gon,    181. 
Goerlitz  v.  Malawesta,  301. 
Goffert   V.    Wallace,    253. 
Gogwell  V.  Warrington,   125. 
Going    V.    Emery,    641. 
Golden   v.   Yoer,   186. 
Goldtree   v.    Thompson,    301,   399. 
Golsbitch  V.  Rainbon,  126. 
Golson  V.    Hook,    494. 
Gonaz   V.   Tradesman's   Bk.,   373. 
Gonhenant    v.    Cockrell,    127. 
Gooch    V.    Atkins,    85. 
Good   V.   Combs,    593. 
Good    V.    Zercher,    524. 
Goodall   V.  McLean,   296. 
Goodall  V.    Mopley,   274. 
Goodburn    v.    Stevens,    86,    288. 
Goode   V.    Comfort,    282. 
Goodheart  v.  Goodheart,   97. 
Goodlet  V.    Smithson,    521. 
Goodlett   V.    Henscll,    572. 
Goodlittle  V.  Tombs,  128. 
Goodman  v.  Cin.   &  C.  C.  R.   R.,  272. 
Goodman    v.    Hannibal    &    St.    Joseph    R. 

R.,    9. 
Goodman   v.   Kine,    265. 
Goodman    v.    Nichols,    494. 
Goodman   v.    White,    255,   275. 
Goodpastor  v.  Leathers,  201,  579. 
Goodrich  v.  Jones,  2,  14. 
Goodrich    v.    Pierce,    302. 

Ixiv 


Goodrich   v.    Staples,    273. 

Goodright   v.   Cato,   405. 

Goodright   v.   Cordwent,    169. 

Goodright  v.  Cornish,  388,   391. 

Goodright  v.    Straphan,  558. 

Goodrum    v.    Goodrum,    72. 

Goodsell    V.    Sullivan,    585. 

Goodson    i:    Beacham,    514. 

Goodspeed   v.    Fuller,    565. 

Goodtille   v.   Billington,   313. 

Goodtitle   v.   Holdfast,   209. 

Goodtitle   v.    VVhiteby,    301. 

Goodwin   v.    Gilbert,    142,   587. 

Goodwin    v-    Goodwin,    86. 

Goodwin  V.  Richardson,  243,  247. 

Goodwin    v.    Thompson,    699. 

Goodwright  v.   Dunham,  310,  392. 

Goodwright   v.    Dunham,    310,   392. 

Gordon  v.  Avery,  238,  253. 

Gordon    v.    Bulkley,    569. 

Gordon    v.    Dickson,    98. 

Gordon   v.    George,    147. 

Gordon    v.    Gordon,    393. 

Gordon  v.   Hazzard,    251. 

Gordon    v.    Hobart,    246. 

Gordon    v.    Ins.    Co.,    248. 

Gordon    v.    Jackson,    603. 

Gordon  v.  Lee,  273. 

Gordon    v.    Lewis,    246,   869. 

Gordon   v.    Miller,    556. 

Gordon   v.    Overton,    407. 

Gordon  v.    Richardson,   148,  209. 

Gordon    v.    Sizer,    554. 

Gordon  v.  Taunton,  429. 

Gore    V.    Brazier,    105. 

Gore  I'.  Gore,  354,   385.   • 

Gore   V.    Townsend,    288. 

Gorham    v.    Arnold,    243. 

Gorham  v.   Betts,   304. 

Gorin    v.    Gordon,    404,    418. 

Goring   V.    Shreve,    239. 

Gorsuch   V.    Rutledge,    135. 

Gortside   v.    Outlay,    245. 

Goskins   v.    Allen,   554,    556. 

Goss    V.    Staunton,    143. 

Gothard   v.    Flynn,    215. 

Gott  V.   Gandy,   14fi. 

Gott    V.    Powell,    530. 

Goudie    v.    Johnston,    406. 

Gould    V.    Barnes,    502. 

Gould  V.  Boston  IJuck  Co.,   444. 

Gould    V.    Howe,    608. 

Gould   V.    Lamb,    30,   371. 

Gould    V.    Linde,    329. 

Gould  V.  Mansfield,   644. 

Gould   V.   Marsh,    253. 

Gould  V.   School   Dist.,    129. 

Gould    V.    Thompson,    165. 

Goulding  v.   Bunster,  257. 

Gourdin  v.  Pleas,  302. 

Gourley  v.   Woodbury,   197,   297. 

Gove  V.   Learoyd,   329. 

Governeur   v.    Titus,    583. 

Govier   v.    Hancock,    08. 

Gowan   v.   Phila.   Exchange   Co.,   468. 

Gowen   v.    Shaw,    191. 

Gower   v.    Howe,    251 . 

Gower   V.    Winchester.   236. 

Grace    v.    Mercer,    239. 

Grady   v.    McCorkle,    100. 

Graff  V.   Fitch,   563. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.l; 


Grafton    Bk.    v.    Foster,   256. 

Grafton    v.    Moir,    4o4. 

Graham   v.    Anderson,   574. 

Graham    v.     Bleakie,    27o. 

tJraham   v.    Carter,    273. 

Graham  v.   Crockett,    122. 

Graham   v.    Davidson,    380. 

Graham   v.   Graham,   633. 

Graham   ?'.    Houghtalin,   302. 

Graham  v.   Newman,   251. 

Graham   v.    Stafford,    300. 

Graham    v.    Way,    139. 

Graham   v.    Whitridge,   309,    405. 

Cranberry  v.  Cranberry,   209. 

Grand  Tour,  etc.,  Co.  z:  Gill,  515,  562. 

Grandin   v.    Carter,    139. 

Granger  v.    Brown,    168. 

Granite    Bldg.    Corp.    v.    Green,    139. 

Granite   Bldg,  Corp.   v.   Manning,    148. 

Grant   v.    Bissett,    202. 

Grant  v.  Chase,   428,   432. 

Grant   v.   Duane,    255. 

Grant   v.    Fowler,    497. 

Grant  v.  Jackson,   97. 

Grant   v.    Townshend,    78. 

Grant   v.    Whitwell,    46~'. 

Grantham   v.    Ilawley,    58. 

Graton   v.   Land   &   Lumber   Co.,   531. 

Grattan  v.  Wiggins,   251,   275. 

Grattin    v.    Wiggins,    274. 

Gratts   V.    Gratts,    193. 

Gratz   V.    Bates,    595. 

Gratz   V.    Ewalt,    623. 

Graves   v.   Amoskeag   Co.,    606. 

Graves   v.    Beeden,    151,    451. 

Graves   v.   Canij)bell,    127. 

Graves  v.   Coutant,  217,  218. 

Graves  v.   Graves,    329. 

Graves  v.   Hampden   Ins.   Co.,  248. 

Graves  v.  Pierce,  l'>,  17. 

Graves   v.    Potter,    147. 

Graves  v.   Trueblood,    408. 

Graves   v.    Weld,   59. 

Gray  v,   Bailey,   642. 

Gray  v.   Baldwin,   265. 

Gray   v.    Blanchard,   207. 

Gray  v.    Bridgworth,   399. 

Gray  v.    Brignordello,   529. 

Gray  v.  Crockett,  509. 

Gray    v.    Freeman,    257. 

Gray  v.  Givens,   186. 

Gray   v.    Harris,    444. 

Gray  v.   Hawkins,   211. 

Gray  v.   Henderson,   376. 

Gray  v.   Hornbeck,   527. 

Gray  v.  Jenks,    254. 

Gray   v.    Lynch,    407. 

Gray  v.   Missionary   Society,    408,   640. 

Gray  v.    Nelson,   242. 

Graydon    v.    Church,    274. 

Great   Falls  Co.   v.  Worcester,   615. 

Great    Luxembourg    Ry.    Co.    v.    Magnay, 

368. 
Greeley   v.    Maine   Cent.    R.    R.,    445. 
Green's  .\dmr.   t.   Irvine,   291. 
Green   v.   Armstrong,  4,  653. 
Green    v.   Arnold,    195,    197. 
Green    v.   Ashland   Iron   Co.,   3. 
Green   v.    Biddle,   500. 
Green  v.  Blackwell,  .S76. 
Green  v.  Brown,   195. 


Greene  v.   Butler,   335. 

Greene    i:    Cole,    66. 

Green   v.    Conant,    577. 

Green   v.    Creighton,    616. 

Green  z:   Crockett,   219,  272. 

Green    v.    Cross,    i78. 

Green   z\    Currier,    242. 

Green    v.    De    Moss,    219. 

Green    v.    Dennis,   642. 

Green   v.    Drinker,    581. 

Green  z'.  Dutrich,  367. 

Green   v.    Garrington,   584. 

Greene   v.    Greene,    33,    349. 

Green   z:    Hart,    226,    251. 

Green  v.   Hewitt,   313. 

Green    v.    Hunt,    240. 

Green   v.    Liter,   80,   493. 

Greene  v.    Munson,   158. 

Green  v.  O'Connor,   205,   291. 

Green  v.   Pettingill,  207. 

Green   v.    Phillips,    13. 

Green  v.   Putnam,  85,   197. 

Green   v.    Ramage,    285. 

Green    v.    Sherrod,    233. 

Green    z:    Sutton,    34,    408. 

Green  v.  Tanner,  202. 

Green  v.  Tennant,   113,   105. 

Green  v.   Tliomas,  565. 

Green   v.    Tomlinson,    260 

Greer  v.  Tripp,   497. 

Green  v.  Turner,   ;.'I7. 

Green   v.   Wilding,   i3..r. 

Greenaway  v.   Adams,    139. 

Greenby   v.   W'ilcocks,   614. 

Greene    v.    Brooks,    305. 

Greene   v.   Wilbur,    371. 

Greene   r.    Witherspoon,    584. 

Greenhalgh  v.    Marggraf,  204. 

Greenland  v.   Waddell,   399. 

Greenleaf    z:    Birth,    608. 

Greenleaf    z'.    Francis,    445. 

Greenley   v.   Wilcocks,    614. 

Greenough  z\  'I'urney,  126. 

Greenough   v.   Wells,    407. 

Greenvault    v.    Davis,    019. 

Greenwood  r.   Tyler,  609. 

Greenwood   v.    Wetteran,   144. 

Greer   v.   Oldham,    125. 

Greer    v.    Pate,    322. 

Gregg  V.    Blackmore,   193,   516. 

Gregg   V.    Richardson,    624. 

Gregg  V.   Roaring  Spring   Co.,  191. 

Gregg   V.  Tcsson,    75. 

Greig  v.    Russell,    231. 

Gregor    v.    Cady,    146. 

Gregory    v.    Pierce,    558. 

Gregory  i:    Savage,  242. 

Gregory   v.   Walker,    578. 

Grey    v.    FuUman,    285. 

Grice  v.   Scarborough,   616,  617. 

Gridley  v.   Watson,  368. 

Gridley   v.   Wvnaiit,    570. 

Gridley's   Heirs  v.    Phillips,    417. 

Griesbaum  v.    Baum,   276. 

Griffin    v.     Burnett,    263. 

Griffen    v.    Fairbrother,    614. 

Griffin  V.  Graham,   641. 

Griffin    z'.    Haskins,    586. 

Griffin    z'.    Manice,    161. 

Griffin  Z'.  Mo.   Kan.,  etc.,  Ry.  Co.,  260. 

GriflFen   v.    Recce,    85. 

Ixv 


TABT-E   OP   CASES   CITED. 


[References  are  to  ffections.} 


Griffin  V.   Sheffield,  171. 

Griffin   v.    Shepard,    305. 

Griffin    v.    Smith,    27;.'. 

Griffin  v.   Sutherland.   122. 

Griffith  V.  Griffith,  72,  633. 

Griffith  t'.  Fownall,  3lt9. 

Griffith  I'.  Schwenderman,  504. 

Griffithes  v.    Penson,   5i)2. 

Griffiths   V.    Morrison,   432. 

Griggs   V.    Smith,    92. 

Griggs   V.   Veghty,    118. 

Griggs   V.    Voghte,    410. 

Griggsley  v.  Hair,  219. 

Grim    v.    Curley,    497. 

Grimes   v.    Harmon,    640. 

Grimes   v.    Kimball,    257. 

Grimes  v.  Portman,  126. 

Grimes    v.    Ragland,    494. 

Grimley   v.    Davidson,    443. 

Grimstone  v.  Carter,  584. 

Grissom    v.    Moore,    105. 

Griswell    v.    Grumbling,    204. 

Griswold   v.    Butler,    556. 

Griswold  v.   Messenger,   329. 

Griswold    v.    Minneapolis    etc.,    Co.    178, 

188. 
Griswold    v.     Warner,     298. 
Gritton  v.   McDonald,   217. 
Grober    7'.    Clements,    85. 
Groesbeck   z'.   Mattison,   261. 
Groesbeck  v.   Milling   Co.,   458. 
Gross   V.   Janesok,    278. 
Gross   V.    VVelwood,    493. 
Grosse   Pt.   v.    Detroit   R.    R.    Co.,    453. 
Grosvenor  7>.   Atlantic  Ins.  Co.,  248. 
Grosvenor  v.   Bowen,  405. 
Groustra  v.   Bourges,  163. 
Grout    V.    Townsend,    300,    536. 
Grove  v.   Grove,   190. 
Grove    v.    Hodges,    17. 
Grove  V.   Spiker,   637. 
Grove    v.    Todd,    97. 
Grover  v.    Flye,   254. 
Grover    v.    Thatcher,    242. 
Grubb   V.    Bayard,    3. 
Grube   v.    Wells,    497. 
Gruber   v.    Baker,    509,    515. 
Grubbs    v.    Marshall,    633. 
Gruenwald   v.    Schaales,   168. 
Grumley   v.    Webb,   368. 
Grundy  v.   Martin,    189. 
Grymes  v.   Boweren,   16. 
Gubb  V.   Grubb,   606. 
Cudgel   V.    Sutherland,    55. 
Guenther   v.    Wilson,   281. 
Guerin  v.   Smith,  616. 
Guernsey  v.    Lazier,    75. 
Guernsey    v.    Phinizy,    14. 
Guerrant   v.    Anderson,   583. 
Guerrero   v.    Ballerino,    368. 
Guest    V.    Farley,    342. 
Guest  V.   Guest,  367. 
Guest   V.    Opdyke,   160. 
GuflFy  f.   Hukill,  207. 
Guienzberg  v.   Claude,  139. 
Guild    V.    Richards,    207. 
Guion  V.  Anderson,  82. 
Guion    V.    Knapp,    582. 
Guiselin  v.   Ferguson,  217. 
Guiteau  v.   Wisely,  583. 
Gulliver  v.   Wicketts,   392. 

Ixvi 


Gully  V.   Ray,  94,  96. 
Gunkle  v.   Seiberth,   554. 
Gunn    V.    Barry,    125. 
Gunnison  v.  Twitchell,  85, 
Gunst    V.    Pelham,    284. 
Gunter  v.  Gunter,  634. 
Guthman   v.    Vallery,    55. 
Guthrie  v.  Gardner,  367. 
Guthrie   v.    Guthrie,    186. 
Guthrie  v.    Tones,    16. 
Guthrie  v.  Kahle,  246. 
Guthrie  v.   Owen,   101. 
Guthrie  v.  Sorrell,  266. 
Guy  V.   Brown,  432. 
G.   Wathmeys  v.   Ragland,  251. 
Gwynn  v.  Johns,  171. 
Gwynne   v.    Cincinnati,    102. 


Habergham  v.  Vincent,  411. 
Hatch   V.    Hill,    74. 
Hackett    v.    Amsden,    13. 
Hackett  v.    Callender,   260. 
Hackett  v.  Reynolds,  215,  216. 
Hackett  v.   Snow,  245. 
Hackett  v.   Watts,  228,  232. 
Hackney   v.    Tracey,    399. 
Hadlock  v.   Bullfinch,   256. 
Hadlock  v.   Gray,  183,   322. 
Hafncr  v.    Irwin,    609. 
Hagan  v.  Campbell,   519. 
Hagan    v.    Parsons,    236. 
Hagan   v.    Walker,   273. 
Hagar   v.    Brainerd,    243,    265. 
Hagar   v.    Wiswall,    197. 
Hageman   v.    Hageman,    321. 
Hager  v.   Aston,  275. 
Hager  v.  Astorg,   273. 
Haggard  v.   Benson,   363. 
Haggart    v.    Ranney,    382,    629. 
Haggerston  v.   Hanbury,  548. 
Hagthrop  v.   Hook,  246,   582. 
Hague   V.    Jackson,    273. 
Hahn  v.   Baker   Lodge,  451. 
Haigh,   ex  parte,   213. 
Haines  v.    Beach,    273. 
Haines   v.    Hewitt,    197. 
Haines   v.   Thompson,    231,   236. 
Hair  v.  Goldsmith,   118. 
Halcomb   v.   Hood,    125. 
Haldeman  v.   Haldeman,  397. 
Hale  V.   Hale,   399. 
Hale  V.  Jewell,    229. 
Hale  V.   Morgan,   264. 
Hale    V.    Munn,    92. 
Hale  V.   New  Orleans,   619. 
Hale  V.   Richards,   125. 
Hale  V.  Rider,  276. 
Haley  v,    Bennett,    217. 
Halez   V.    Sheridan,    483. 
Halfred   v.   Hatch,   139. 
Halifax  v.   Higgens,  234. 
Hall   V.   Armstrong,    438. 
Hall   V.   Arnott,    231,   233. 
Hall   V.    Ashby,    547. 
Hall   V.   Bliss,   279. 
Hall    V.    Bragg,    631. 
Hall   V.   Burgess,   16.3. 
Hall    V.    Crabb,    77. 
Hall  V.   Davis,  594,  596. 


TABLE   OF    CASES   CITED. 


[References  are  to  Sections.] 


Hall  V.   Deane,   616. 

Hall   V.    French,   53. 

Hall  V.   Gale,  615. 

Hall    V.    Hall,    498,    608. 

Hall   T.   Horton,   201. 

Hall    V.    Hurd,    264. 

Hall  V.  Klepzig,  273. 

Hall    V.    Leonard,    561. 

Hall  V.  Linn,  368. 

Hall    V.    Loomis,    126. 

Hall    V.    McCaughey,    435. 

Hall    V.    McDuff,    214,    518. 

Hall  V.  Nute,  301. 

Hall    V.    Orvis,    512. 

Hall  V.   Patterson,    574. 

Hall   V.   Priest,   298,   393. 

Hall   f.   Robinson,   385.  • 

Hall   V.   Saville,  231. 

Hall  V.  Sayre,  69. 

Hall   V.    School    Dist.,   203. 

Hall   V.    Shotwell,    604. 

Hall    V.    Stevenson,    290. 

Hall   V.    Tuffts,    204,    236. 

Hall   V.   Tunnell,    239,   243. 

Hall  V.   Wadsworth,    164. 

Hall    V.    Westcott,    238,    247. 

Hall  V.  West  Transp.  Co.,   166. 

Hall    V.    Wright,    587,    609. 

Hall    t'.    Yoell,    273. 

Halladay    v.    Stickler,    204. 

Hallbrook    v.    Green,    247. 

Hallenbeck  v.  De  Witt,  575. 

Hallenbeck  v.   Rowley,   601. 

Hallett  V.  Collins,  587. 

Hallett  V.    Wylie.   136. 

Hallock   V.    Smith,    219. 

Halman   v.    Hopkins,    629. 

Halsey  v.  Martin,  229. 

Halse'y   v.    McCormick,    489,    597. 

Halsey    v.    Reed,    257. 

Halstead  v.    Caen,   68. 

Halstead  v.  Bk.  of  Ky.,  582. 

Halt   V.    Rees,    266. 

Halvorsen    v.    Hal\«rsen,    217, 

Ham   V.    Ham,    509. 

Ham   V.    Kendall,   9. 

Hamerton   v.    Stead,    164,   166. 

Hamilton   i'.   Burum,   532. 

Hamilton  v.   Crosby,   530. 

Hamilton   v.    Dobbs,  255. 

Hamilton   v.    Doolittle,    547. 

Hamilton  v.  Elliott,  206. 

Hamilton  v.  Farrar,  435. 

Hamilton    v.    Flournoy,    507. 

Hamilton  v.  Lubukee,  278. 

Hamilton    v.    Nutt,   684,    586. 

Hamilton    v.    Phillips,    193. 

Hamilton  v.  Redden,  186. 

Hamilton  v.   Rhodes,  263,  279. 

Hamilton   v.    White,   440. 

Hamilton   v.    Wickson,    53. 

Hamilton    v.    Wright,    143. 

Hamlin  v.   Hamlin,  87. 

Hamlin    v.     Pairpoint     Mfg.    Co.,    601. 

Hamlin  v.  Werner,  433. 

Hammann    v.    Jordan,    450. 

Hammerlough  v.  Cheatham,  553. 

Hammington    v.    Rudgard,    385. 

Hammock  v.  Greekmore,  160. 

Hammond  v.  Alexander,  550,  571. 

Hammond  v.  Crosby,  493,  504. 


Hammond   v.   Croxton,   406. 
Hammond    v.    Eckhardt,    172. 
Hammond    v.    Lewis,    250. 
Hammonds  v.   Hopkins,   229,   247. 
Hammons  v.   McClure,   157. 
Hamon   v.    Dyer,    301. 
Hampson    t'.    Fall,    307. 
Hampton    v.    Hodges,    265. 
Hampton   v.    Levy,    200. 
Hampton  r.   Xicholson,  257. 
Hampton    v.    Wheeler,    182. 
Hanchet  f.    Whitney,   108. 
Hancock   v.    Beverly,    582. 
Hancock    ?'.    Carlton,    209. 
Hancox   f.    Fishing    Ins.    Co.,   248. 
Hancox  V.   Meeker,   5G. 
Hand    f.    .\rmstrong,    618. 
Hand   v.   Marcy,    C12. 
Hand    v.    St.    Loiii;,    205. 
Ilandforlh    v.    Jackson,    9. 
Hands    z-.    James,    G;!.'!. 
Handy   v.    ^IcKim,    3;.i. 
Hanford    r.    McXair,    OGO. 
Hankey    v.    Clark,    430. 
Hankie    v.    Dillon,    15. 
Hanks    v.    Folsom,    3('o. 
Hanks    v.    Rhodes,    23:5. 
Hanna    Z'.    Kasson,    230. 
Hannah    v.    Carrington,    226,    282. 
Hannah   v.    Davis,   210,    231. 
Hannah    r.    Peak,    033. 
Hannah    f.    Swarner,    576. 
Hannan    v.    Osborr,    101,    393. 
Hannum  r.   Westchester,   590. 
Hanrahan  t:  O'Reil'y,  COS. 
Hans    V.    Palmer,    634. 
Hansard  t.   Hardy,    247. 
Hanson  v.  Campbell,  601. 
Hanson    t'.    Craft,    53. 
Hanson    r.    Hanson,    198. 
Hanson  r.  Johnson,   504. 
Hanson  ?'.    McCue,    445. 
Hanson    z:    Meyer,    147. 
Hapgood    V.    Brown,    606. 
Harbison   z:   James,   298,   301. 
Harbison   7'.    School    Dist.,    494. 
Hard   v.    Harlan,   260. 
Hardaway   v.    Semmes,    585. 
Hardenburg    v.    Larkin,    570. 
Harder  z:   Harder,   62,   66. 
Hardin  r.   Barrett,    4«4. 
Hardin  7'.  Hardin,  562. 
Hardin   z:    Hooks,    219. 
Hardin    z\    Lawrence,     105. 
Harding   v.    Hardy,    550. 
Harding  v.  Mill   River  Co.,   272. 
Harding  v.    Seley,    159. 
Harding  v.   Tibbils,  532. 
Harding    v.    Townsend,    248. 
Hardwick  z'.   Solzi,   558. 
Hardy  z:   Clarkson,   301. 
Hardy  v.    McCuHough,   432. 
Hardy    z:    Poss,    149. 
Hare    v.    Cany,    405. 
Hargis   v.    Kansas    City,    494. 
Har{?rave    zk    King,    139. 
Haring  r.   Van  Houtan,  596. 
Harisman  v.    Gray,   97. 
Harker  z>.   Chambliss,  68. 
Harkey   v.    Cain,    13. 
Harking  v.  Forsyth,  876. 

Ixvii 


TABLE   OF    CASES   CITED. 


[References  are  to  Sections.} 


Harkness  f.    Sears,  16. 

Harlan   v.    Seatoa,   5S3. 

Harlan   f.    Smith,    275. 

Harlem  Co-op.  Bldg.  &  Loan  Ass'n  v. 
y.tinn,    •^7:i. 

Har.o.v  f.  Thomas,  253,  625. 

Harni..n  r.  Oocrdorfer,  576. 

Harmo:i  v.   Brown,  214. 

Harmon   f.    Dyer,    'ivi. 

Harmon  ;■.  Gartman,   190. 

Harms  r.   McCormick,   189. 

Haindon  !■.   St.iUz,  8. 

Harnickeil   z:   OrnJoff,   277. 

Harnickle   v.    Wells,    -(7. 

Harp  7'.   Jackson,    471. 

Harpenu'.ng    f.    Dutch    Church,    186. 

Harper   t'.    Barsh,   5 SI. 

Harper  i:   Dowdncy,  617. 

Harper    i:    Kly,    246,   269. 

Harper  v.   Harper,   480. 

Harper   v.    Little,    569. 

Harper  v.   Perry,   565. 

Harper   t:    Reno,    581. 

Harper   f.    Tapley,    504,    581. 

Harr    v.    Shafer,    617. 

Harral   v.   Lcverty,    059. 

Harrell   v.    Butler,   590. 

Harrigan  v.  Gilchrist,  228,  232. 

Harrington   7'.    Fortner,   228. 

Harris   v.    Barnes,   385,   391. 

Harris  v.   Barnett,   365. 

Harris    z:    Carpenter,    301. 

Harris    z:    Carson,    59. 

Harris   v.    Duarte,    122. 

Harris   v.    Elliott,   601,   606. 

Harris  v.  Frink,  160,  166. 

Harris  v.    Haine,   217. 

Harris   v.    Harris,    577. 

Harris   v.    Knapp,    406. 

Harris  v.    Mathews,    124. 

Harris    v.    McElroy,    381. 

Harris   f.    McKissack,    521. 

Harris  v.  Mills,  247. 

Harris    v.    Mins,    65. 

Harris   v.    Norton,    260. 

Harris    v.    Petty,    380. 

Harris   v.    Richey,    498. 

Harris  v.    Roraback,   205. 

Harris  z'.   Ryding,  4. 

Harris   r.    Thomas,    68. 

Harrisburg  Electric  Light  Co.  v.  Good- 
man,   9. 

Harrison  v.  Augusta  Factory,  441. 

Harrison    v.    Blackburn,    131. 

Harrison  ?•.   Burgess,   635. 

Harrison  v.   Burlingame,   238,  253. 

Harrison   v.  Good,   433. 

Harrison   z:   Gray,    512. 

Harrison  z'.   Jelly,   161. 

Harrison  v.  Jones,   306. 

Harrison   r.   Lemon,   230. 

Harrison   v.   McReynoIds,   85,   101. 

Harrison    v.    Middlcton,    163. 

Harrison   v.    Oakman.   574. 

Harrison    z:    R.    R.    Co.,   203. 

Harrison   z\   Wise,   267. 

ITarnson   v.    Wood,    85. 

Harrison    v.    Wyse,    246. 

ITnrsh    V.    Griffin.    126. 

Hirshaw   z:    McKesson,   272. 

Hart  V.   Burch,   90,  97. 

Ixviii 


Hart  V.   Chalker,  236. 

Hart  V.   Epstein,  233. 

Hart  V.   Farm,   583. 

Hart  V.    Red   Cedar,   441. 

Hart  V.   Sheldon,   13. 

Harter  z.\    Brewing   Co.,   217. 

Hartford    Ins.    Co.   r.    Walsh,   248. 

Hartford  Iron  Mine  Co.  v.  Cambria  Min. 

Co.,    604. 
Hartley  v.   Harrison,   252. 
Hartley  v.  Minors  App.,  407. 
Hartley   v.    Wharton,    557. 
Hartman   v.   Stricklcr,  637. 
Hartman  v.  Herbine,  204. 
Hartness   v.   Thompson,   556. 
Harton   v.   Harton,  348. 
Hartshorn   v.   Cleveland,  617. 
Hartshorn  v.  Day,  575. 
Hartshorne  v.   Hartshorne,  90. 
Hartwell    v.    Blocker,    274. 
Hartwell  z\   Havinghorst,   522. 
Harvard   College  z\    Society,    etc.,   641. 
Harvey    v.    Aston,    203. 
Harvey  v.   Brydges,   173. 
Harvey  v.  Chouteau,  633. 
Harvey  v.  Harvey,  00,   417. 
Harvey    v.    Sullens,    635. 
Harvey  v.   Wichman,    80. 
Harvin   v.    Blackman,    157. 
Haseltine  v.  Prince,  75. 
Haskell   v.    New    Bedford,    525. 
Haskell   v.    Putnam,    157. 
Haskell   z:    Scott,    218. 
llaskin  v.  Woodward,   15,  265. 
Haskins   Z'.    Hawkes,   240. 
Haskins   r.    Spiller,    481. 
Hasle  V.   McCoy,   166. 
Haslett    V.    Glesin,    59. 
Hass  z'.   Plantz,    510. 
Hassam    v.    Barrett,    233. 
Hassett   v.    Ridgley,   194. 
Hastings  v.  Clifford,   118. 
Hastings  v.   Crunckleton,   62. 
Hastings   t'.    Center,    lys,    581. 
Hasting  v.   Drew,   3657368. 
Hastings   z:    Hastings,    190. 
Hastings    v.     Stevens,    87. 
Hastings  r.   Vaughan,   572. 
Hatch  V.   Bates,   558,  576. 
Hatch    V.    Dwight,    597. 
Hatch,    z'.    Hatch,    578. 
Hatch    V.    Palmer,    87. 
Hatchell  v.   Kinsbrough,   160. 
Hatcher    v.    Crews,    126. 
Hatfield  v.   Sneden,    99,   298. 
Hathaway  v.   Evans,  595. 
Hathaway    v.    Payne,    579. 
Hathorn  v.   Haines,   559. 
Hathom    v.    Lym,    82. 
Hathorn    v.    Stinson,    600. 
Hatstat   V.    Packard,    168. 
Haughton    Z'.    Harrison,    388. 
Hauptman   v.    Hauptman,   86. 
Hauser    v.    Lash,    228. 
Haven   v.    Adams,   245,   273. 
Haven   v.    Foster,   288,   049. 
Haven    v.    Wakefield,    136. 
Havens  v.   Seashore   Land   Co..  548. 
Havens   v.   Vanden    Burgh,    647. 
Haverstick   v.    Sipe.    443. 
Hawes    v.    Favor,    205. 


TABLE   OF   CASES   CITED, 


[References  are  to  Sections.] 


Hawes  v.   Hawes,   177. 
Hawk  V.  McCullough,   623. 
Hawk  V.    Seuseman,   496. 
Hawkes    v.    Hubback,    348. 
Hawkins    v.    Barney,    488. 
Hawkins    v.    Clermont,    237. 
Hawkins  v.   Files,  260. 
Hawkins  v.   Pepper,  5. 
Hawkins   v.    Skegg,    59. 
Hawks   V.    Pike,    577. 
Hawks    I'.    Seuseman,    492. 
Hawley  v.   Bradford,  239,  281. 
Hawley  v.   Brown,   634. 
Hawley  v.   City  of  Baltimore,  441. 
Hawley    v.    James,    87,    297. 
Hawley  v.    Northampton,   45,   393. 
Hawley  v.  Peavy,  301. 
Hawley    v.    Wolverton,    62. 
Hawlins   v.    Spippam,    466. 
Hawn  V.   Banks,  642. 
Hay  V.  Callman,  429. 
Hay  V.    Coleman,    434. 
Hay   V.    Coventry.   312. 
Hay  V.   Tillyer,  16. 
Hayden   x'.   Lucas,   136. 
Hayden    v.    Merrill,    190,    191. 
Hayden  v.   Robinson,   121. 
Hayden   v.   Stoughton,    636,   642. 
Hayes   v.    Bowman,    597. 
Hayes  v.    Davis,    204. 
Hayes  v.  DeVity,  438. 
Hayes  v.    Ferguson,   618. 
Hayes  v.  Ford,  322. 
Hayes  v.   Kershaw,   541,   543. 
Hayes    r.    McReynolds,    307. 
Hayes   v.   Tabor.    301,    343. 
Hayford   v.   VVentworth,    11,   16. 
Hayne  v.   Cummings,   142. 
Hayner   v.    Smith,    153. 
Haynes  v.    Boardman,    499. 
Haynes    v.    Irvine,    640. 
Haynes  v.   Jackson,   603. 
Haynes   v.    Powers,    109. 
Haynes    v.    Seacrest,    569. 
Haynes  v.  Sherman,  399. 
Haynes  v.    Swan,    233. 
Haynes  v.   Young,   619,   626. 
Hays   V,    Doane,    16. 
Hays    V.    Kershaw,    344. 
Hays  V.  Quay,  373. 
Hayton  v.  Mclntire.  254. 
Hayward   v.   Cuthbert,    113. 
Hayward  v.   Howe,   39. 
Hayward  v.  Kinney,  46,  51. 
Hazard  v.   Cole,  384. 
Hazard  v.   Robinson,  266,  432. 
Hazclton  v.   Lesure,  94. 
Hazelton   v.   Moore,    217,   218. 
Hazelton   v.    Putnam,    465. 
Hazen   v.    Thurber,    113. 
Hazlctt    V.    Powell,    162. 
Headley  v.   Goundray,   226. 
Hear   v.   Prejol    374. 
Heard  v.   Baird.  282,  381. 
Heard    v.    Fairbanks,    629.  • 
Heard  v.   Pilley,  367. 
Hearle  v.  Greenback,  79. 
Hearst  v.   Bojol,  377. 
Hearst    v.    Pujol,    498. 
Heartt    v.    Kruger,    450. 
Heath   v.    Crealock,   368. 
Heath   v.    Hewitt,   662. 


Heath  v.  Knapp,  72. 

Heath  v.   White,   82. 

Heath   v.    Williams,    231,    233. 

Heaton   v.    Hodges,    596. 

Hebron    v.    Centre    Harbor,    230. 

Heburn  v.   Warner,   230. 

Hecock    V.    Van    Dusen,    494. 

Hedge  v.    Drew,    137. 

Heed   v.    Ford,   96. 

Hefferman   v.    Ostego    Water    Power   Co., 

605. 
Heflin    v.    Bingham,    255. 
Hegeman   v.    Arthur,   154. 
Hegeman   v.    Mc.\rthur,    156. 
Heinrichs  v.  Terrell,   497. 
Heiskell    v.    Cobb,    498. 
Heist   V.    Baker,   217. 
Heistner  v.   Fortner,   581,   583. 
Helgebye   v.   Damman,    126. 
Hellman    v.    McWilliams,    373. 
Hellwig   V.    Bachman,    141. 
Helm  V.   Kaddatz,   121,   608. 
Helms   I'.    Helms,    201. 
Helms  V.  May,  586. 

Helmsley  z:   Marlborough   Hotel  Co.,   205. 
Helt  V.  Helt,  85. 
Hemke    v.    Floring,    367. 
Hemingway  v.  Hemingway,  407. 
Hemingway  v.    Scales.    181. 
Hempfield   R.    R.  v.   Thornburg,   217. 
Hemphill   v.   Giles,   245. 
Hemphill    v.    Haas,    126. 
Hemphill   v.    Ross,    243. 
Hemphill  v.   Tevis,   163. 
Henagon   v.    Harllee,   94,   288. 
Hendershot    v.     Lawrence,     195. 
Henderson  v.  Chaires,  98. 
Henderson   v.    Downing,   583. 

Farbridge,    631. 

Grammar,    238. 

Henderson.    322. 

Herrod.   251. 

Hunter.   207,   211. 

Huntington,    211. 

Kinard,    393. 
Henderson   v.   McGee,   200. 
Henderson  v.   Pilgrim,  229,   250. 

Schuvlkill  Valley  Co.,   132. 

Walthour.    322. 

Wilson,   264. 

Musgrove,    186. 
Hendricks  v.  Smith,  160. 
Hendricks  v.   Spring  Val.   Min.   &   Irriga- 
tion  Co..   448. 
Hendricks  v.   Stark,   619. 
Hendrickson   ?•.   Grable,    86,   94. 
Hendrix   v.    McBeth,    64. 
Hcndrix  v.  Munn,  368. 
Hendrix  v.  Seaborn,   125. 
Hendry   j'.    Hollingdrake,    195. 
Henkle  v.   Allstadt,   285. 
Henkle    v.    Dillon,    13. 
Henley  v.   Hotaling,   231. 
Henley  v.  Robb,  393. 
Henney  v.   Wood,  521. 
Hennessey  v.   Andrews,   229. 
Hcnnesy  v.    Farrell,   243. 
Hennesy   v.    Walsh,    367. 
Hcnning  v.   Burnett,   438. 
Henry   v.   Carson,   576. 
Henry   r.    Davis.    238.    238. 
Henry  v.  Henry.  690. 

Ixix 


Henderson 
Henderson  v. 
Henderson  v. 
Henderson  z'. 
Henderson  z>. 
Henderson  v. 
Henderson 


Henderson 
Henderson 
Henderson 
Hendricks 


TABLE   OF   CASES   CITED. 


[References  are  lo  Sections.] 


Henry   f.   Tupper,   200,   837. 

Henser   v.    Allen,    641. 

Henshaw   r.    Bissell.   51  n. 

Ilenshaw   v.    Wells,    245. 

Henson  v.  Westcott,  217. 

Hcnthorn    v.    Securities    Co.,    827. 

Hepburn    v.    Dubois,    558. 

Hepburn    f.    Snyder,    217. 

Heppe   V.   Sezepanski,    191. 

Herbert  v.   Pue,  608. 

Herbert  r.   Wren,   108.  118. 

Herbert    v.    Wrenomitch.    118. 

Herberts   v.    Herberts,    407. 

Herchefcldt  f.   George,    566. 

Herdman    v.    Bratten,    579. 

Hereford  v.   Pusch,  12. 

Herman    v.    Roberts,    434. 

Herman  v.  Schmaltz,  498. 

Herrick   v.    Atwood,   214. 

Herrick  t'.   Babcock,   408. 

Herrick   v.   Malin,   554. 

Herrin   v.    Brown,    122. 

Herron   v.   Williamson.    96. 

Hershy   v.   Berman,    411. 

Herskell    v.    Bushnell,    160. 

Hersky  v.  Clarke,  179. 

Hertz   V.   Abrahams,    45. 

Hes   V.    Martin.    380. 

Hesley  v.   Bartlett,   633. 

Heslop   V.   Gatton,   463. 

Hesperia'  Land,   etc..   Co.   v.   Rogers,   504. 

Hess  V.  Kennedy,   432.  433. 

Hessel  v.  Johnson,   156. 

Hcsseltine   v.   Seavoy,    156. 

Hester  v.  Glasgow,  574. 

Heth  V.   Cocke,  100,   273. 

Hetherington  v.  Clark.  584,   585. 

Hetherington    v.    Graham,    98. 

Hewitt   V.   Loosemore,   214. 

Hewhus   V.    Shippam,    46,    467. 

Heyer  v.   Pruyn,   247,  278. 

Heyman  v.  Heyman,   76. 

Hcyman   v.    Lowell,    273. 

Hibbard  v.   Lamb,   378. 

Hibbard   v.    Ransdell,    157. 

Hibbard  v.  Smith,   576. 

Hibblewhite   v.    McMorine,    553. 

Hibemia  Nat.   Bank  v.  Sarah   Planting  & 

Refining    Co.,    10. 
Hicklin  V.  McClear,   504. 
Hickman  v.  Dill,  277. 
Hickman  v.   Irvine,   62. 
Hicks    V.    Bowling,    139. 
Hicks  V.  Coleman,  595,   597. 
Hicks   V.   Hicks,   230. 
Hicox  V.   Chicago,  etc.,   R.   R.,  435. 
Hidden  v.  Jordan.  269. 
Hidden    v.    Krekchmar.    238. 
Hide   V.   Thornborough,    448. 
Hiern   v.   Mill,   214. 
Hieser  v.   Sutter,   118,  119. 
Hiester  v.   Madeira,   231. 
Higdon  V.  Higdon,  367. 
Higginbotham   v.   Barton,   245. 
HiRginbotham   v.    Cornell,    118. 
Higginbottom   v.    Short,   192. 
Higgins   V.    Breen.    95. 
Higgins  V.  Cal.   Pet.  Co.,  5. 
Higgins  V.   Carlton,   634. 
Higgins  V.  Higgins,    133. 
Higgins   V.    Taniesburg   Co.,   249. 
Higgins  V.   Kendall,  217. 

Ixx 


Highstone   v.    Burdette,    186. 

Hilbourn  v.    Fogg,   162,   164. 

Hildreth  v.   Conant,   163. 

Hildreth   v.   Thompson,    85. 

Hill   V.    Bacon,   617,   619. 

Hill   V.    Bk.   of   London,   463. 

Hill   V.    Baron,   297. 

Hill   V.   Osloom,    480. 

Hill   V.    Coats,    149. 

Hill  V.  Deu,   373. 

Hill   V.    Eliott,   368. 

Hill   V.    Hewitt,    246. 

Hill  V.  Hill,  13,  466. 

Hill  V.  Jordan.   163,   245. 

Hill  V.   Lord,   424,   608. 

Hill   V.   McCarter,   582. 

Hill  V.   McCord,   519. 

Hill   V.   McRae,    370. 

Hill   V.   Meeker,   582. 

Hill   V.    Meyers,    122,    366. 

Hill   V.   Miller,    521. 

Hill   V.    More,   250. 

Hill   V.    Mowry,    552. 

Hill   V.    Munday,    13. 

Hill   V.    Pike,    86. 

Hill  V.   Pixley,   242. 

Hill   V.    Reno,    195. 

Hill    V.    Roderick,    300. 

Hill  V.  Sewald,   13,   15. 

Hill  V.   Smith,    239. 

Hill  V.  Woodman,   151. 

Hilliard   v.    Scoville,    195. 

Hilliary   v.   Hilliary's   Lessee,   387. 

Hillman  v.    Bonslaugh,  321.  322. 

Hills  V.  Barnard,   27.  301. 

Hills  V.    Bearse,   558. 

Hills    V.    Chicago,    533. 

Hills   V.   Dey,    197. 

Hills  V.  Loomis,  233. 

Hills  V.   Miller,    427. 

Hillyer   v.    Bennett.    556. 

Hillyer   v.    Vandewater,    399. 

Hiltengen   ?■.    Scheick,    148. 

Hilton   V.   Gilman,   2. 

Hilton  V.  Lathrop,  266. 

Hilton  V.  Otoe  Co.  Bank.  276. 

Hinchcliff  v.   Hinman,    581. 

Hinchcliffc  v.   Wcr.twood,    642. 

Hinchman   v.    Stiles,    85.   281. 

Hinde's  Lessee  7'.   Loncworth,  566. 

Hinds  V.  Allen,   272.   275. 

Hinds    V.    Ballon,    94,    258. 

Hine    v.    Railroad    Co.,    68. 

Hinneman  t'.   Rosenbeck,  640. 

Hines  v.   Allen.    624. 

Hines  V.   Franth^m,   178. 

Hines   v.    Robinson,   190. 

Hines  v.   Ward,   242. 

Hinman  v.   Booth,   579. 

Hinsdale  v.  Humphrey,  142,  587. 

Hinton    v.   Walston,    7. 

Hipp   V.   Hackett,    587. 

Hitch  V.  Wells.   633. 

Hitchcock   V.    Carpenter,    92. 

Hitchcock  V.  Harrington,   87,   113. 

Hitchcock    V.    Merrick,    250. 

Hitchcock  V.  U.   S.   Bk.   of  Pa.,   272, 

Kitchens  7i.  Kitchens,  80,  296. 

Hitt  V.  Holiday,  255. 

Hoagland  v.  Crum,   55. 

Koagland   v.    Latourette,    583. 

Hobbs   V.    Hobbs,    420.    . 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Hoboken   Land  Co.  v.   Kerrigan,   601. 

Hobson    V.    Silva,    155. 

Hobson   V.   Trevor,   359. 

Hockenbury  v.   Snyder,   157. 

Hocker   v.   Hocker,   635. 

Hodgden   v.    Heidman,   247. 

Hodge   V.    Boothby,    598. 

Hodge   V.    Weeks,    231. 

Hodgens  v.   Powell,   601. 

Hodger    V.    Taylor,    230. 

Hodges  V.   Eddy,  493,   494. 

Hodges   V.    Rowing,    604. 

Hodges  V.  Shields,  157. 

Hodges  V.  Thayer,  625. 

Hodgkin   V.    McVeigh,    496. 

Hodgkinson   v.    Petitioner,    195. 

Hodgson    V.    Butts,    581. 

Hods   V.    Tiernon,    5i)4. 

Hodson    V.    Treat,   273. 

Hoester  v.  Hemsath,  445. 

Hoffar    V.    Dement,    180. 

Hoffey   V.    Carey,   236. 

Hoflfman  v.  Armstrong,  8. 

Hoffman   v.   Bell,   532. 

Hoffman    v.    Clark,    170. 

Hoffman  v.    Harrington,   278. 

Hoffman   v.   Hoffman,   633. 

Hoffman   v.    Porter,   562. 

Hoffman  v.  Stigers,  176,  181, 

Hoffman    v.    Strohecker,    585. 

Hoffman  v.  White,  504. 

Hogan    V.    Brainard,    238. 

Hogan   V.   Jaques,    366. 

Hogan  V.   Manners,    123. 

Hogan  V.   Page,   562. 

Hogan   V.   Stayhorn,   366. 

Hogan's  Exrs.  v.  Calvert,  616. 

Hogden   v.    Heidman,    273. 

Hoge    V.    Eaton,    444. 

Hoge  V.  Hoge,   368,   388. 

Hogg  V.  Lusk,  596. 

Hogsett  V.  Ellis,   172,  245. 

Hogue  V.   Steel,   126. 

Hoitt   V.   Hoitt,    642. 

Hoitt  V.   Russel,  278. 

Holbrook  v.   Bowen,   497. 

Hollbrook    v.    Chamberlain,    16. 

Holbrook    v.    Forsythe,    494. 

Holbrook   v.    Gelly,    7. 

Holbrook  v.  Governeur,  495. 

Holbrook  v.    Greene,    244. 

Holbrook    v.    Tirrell,    518. 

Holbrook  v.  Young,   162. 

Holburn  v.  PfanmiUers,  122. 

Holcomb  V.  Coryell,   593. 

Holcomb  V.   Holcomb,   273. 

Holcomb    V.    Luke,    640. 

Holcomb   V.    Mooney,   590. 

Holden   v.    Boring,   55. 

Holden   v.   Fletcher,   620. 

Holden    v.    Stickney,    282. 

Holder  r.  Coates,   8. 

Holderby   v.    Walker,    388. 

Holdridge   v.    Gillespie,    236. 

Holdroff  V.    Resold,    272. 

Holeman  v.  Boiling  Spring  Co.,  452. 

Holladay  v.  Menefce,  025. 

Hollady   v.    Daily,    570. 

Hollahan  v.   Sowers,   191. 

Holland  v.  Citizens  Sav.   Bank.   258. 

Hollenbeck   v.   McDonald,   431. 

HoUenberger  v.  Yankee,  60. 


Holley    V.    Hawley,    498. 

Holliday  v.   Achle,   140,   164 

Holliday   v.    Cronwell,   492. 

Holliday    v.    Hively,    74. 

Holliger  i:    Bates,   261. 

Hollinshead  v.   Simms,  368. 

Hollis    V.    Burns,    164. 

Hollis   V.    Pool,    172. 

Holloman  v.   Holloman,   104. 

Holloway   v.    Holloway,    195. 

Holman  v.    Bailey,   254. 

Holman    v.    Wesner,    37,    45. 

Holmes    v.    Best,    191. 

Holmes   v.    Coghill,    420. 

Holmes  v.    Fisher,    237. 

Holmes   v.    Grant,    229,    231. 

Holmes  v.   Hall.   277. 

Holmes   v.    Holmes,    192. 

Holmes    v.    McGinty,    251. 

Holmes  v.  Mead,  641. 

Holmes  v.    Railroad,   516. 

Holmes    v.    Seeley,    438. 

Holmes  v.   Standard   Pub.  Co.,  16. 

Holmes  v.    Tremper,    16. 

Holmes  V.   Front,  518. 

Holmes    v.    Turners'    Falls    Lumber    Co., 

277. 
Holmes   v.    Warren,    233. 
llolridge   v.    Gillespie,    368. 
llolsen  V.  Kockhouse,  408. 
llolston   V.   Needles,   592. 
Holt  V.  Agnew,  558. 
Holt  V.    Rees,    254. 
Holt  V.  Robertson,  191. 
Holt  V.   Sargent,   441. 
Holten  V.   Guim,   86. 
lloUerhoff  v.   Mead,   187. 
llolton   V.    Whitney,    497. 
Home  Life   Ins.   Co.  v.   Sherman,  152. 
Home  V.  Richards,  599. 
Homer  v.   Homer,    368,    374. 
Homer  v.  Watson,  448. 
How  V.  How,   367,  368. 
Hondonf  v.  Hobs,  559. 
lloniet   V.    Bacon,    397. 
Ilonorc  V.    Bakwell.    217,   219. 
Honore  v.  Hutchings,  231. 
Honore  v.   Lamar   Ins.   Co.,  248, 
Honvwood    v.   Honeywood,  62. 
Hood  V.  Clark,  209. 
Hood  V.   Easton,   246. 
Mood  V.  Haden,  298,  408. 
Hoodlers  v.   Reid,   278. 
Hoogland  v.  Watt,  100. 
Hook  V.  Garfield   Coal   Co.,   105. 
Hook  V.   N.  W.  Thresher  Co.,   123. 
Hooker   v.   Hooker,   86. 
Hooper  v.   Cummings,   207. 
Hoover  v.  Hoover,  3(»1. 
Hoovey  v.    Newton,    617. 
Hope  V.  Stone,  621. 

Hopewell  Mills  v.  Staunten  Bank,  11,  14. 
Hopkins  v.  Garrard,  217. 
Hopkins   v.   Glunt,    373. 
Hopkins   v.    Hopkins,    342. 
Hopkins  v.  Lee,   625. 
Hopkins  v.  Ward,  274. 
Ilopkinson  v.   Dumas,  88,  367. 
Hopkinson   v.    Rolt,   263. 
Ilopkinson   v.   Stephenson,   269. 
Hopper  V.  Haines,   IfiO. 
Hopper  V.   Hopper,    109. 

Ixxi 


TABLE   OP   CASES   CITED. 


[References  are  to  Sections.] 


Hoppintr   V.    Burnham.    580. 

lloppoCK   V.    Tucker,   042. 

Horn   r.    Ketcltas,   233. 

Horn  f.  Petcrcr.  208. 

Hornbcck   f.   Westbrook.   562,  608. 

Home  I'.  Smith.  13. 

Horner   f.    I.cc.ls.   130,   157. 

Horner   v.    StilKvcll,   43,i. 

Iloiner    f.    Wntson,    448. 

Horner    r.    Trimmcrnian,    275. 

Horning  f.   W'iedersp.ilcn,  463. 

Hornscy    r.    Casey,    lis. 

liorscy    ?'.    Horsey,    202. 

liorsey   f.    HohrH,   278. 

Horsforil  v.   U  riglit,   635. 

Horslcy   f.   Ililburn,   45. 

llortsliorn    f.    Cleveland,    625. 

Ilortsnian  v.  Gerker,  253. 

Horton    v.    Davidson,    497. 

Horton    f.    Horner,   219. 

Horton    f.    Kelly,    290. 

Horwitz   r.    Norris,    412. 

Hosford   V.    Merriam,    194. 

Hosie    t'.    Gray,    272. 

Hosmer  r.   Carter,   238. 

Hospcs  V.    Ahusted.   242.     - 

Host   V.    Kearney,    147. 

Hosteller  v.  State,  640. 

Hotclikiss  V.    KltinR.   403. 

Hougan  V.  Milwaukee,  etc.,   R.   R.,  445. 

II. mull   r.    Bailcv,    236,    -M7. 

Housh   r.    Birge,    166. 

Hougliton    V.    llapgooJ,    79,   287. 

Houghton   V.    Jones,    581. 

House  V.  House,  54,  367. 

Houser   v.    Lamopt,    22'.). 

Houscr    V.    Reynolds,    557. 

Houston   V.    Blythe,    197. 

Houston  V.   Smith,   86,   135. 

Houston   St.   Co.  V.   Hubbard,  579. 

Houston    V.    Workman,    505. 

Hout    V.    Hout,    417. 

Hovey    r.    Hobsen,    556. 

Hovcy  V.   Sawyer,   595. 

How    V.    Vigures,    225. 

Howard   r.    Ames,    278,    279. 

Howard   v.    Carpenter,    163,   418. 

Howard  v.  Carusi,   298. 

Howard    v.    Davis,    279. 

Howard  v.  Gresham,  254. 

Howard    v.    Handy,    273. 

Howard  v.  Harris,  234. 

Howard    v.    How,    2.')4. 

Howard    v.    Houghton.    243. 

Howard  v.   Hudson,   509. 

Howard  v.  Huffman,  518. 

Howard  r.  Merriam,  163. 

Howard  v.   Criest,    185. 

Howard  v.   Reedy,   497. 

Howard  v.   Tomichie,    159. 

Howard   v.    Watson,    118. 

Howard   v.    Wheatley,    202. 

Howhert  v.   Cowthorn,   307. 

Howe  V.   Adams,   121,   127. 

Howe  V.   Alger,   601. 

Howes  V.   Barmon,  465,   467. 

Howe   V.    Batchelder,    59,    563. 

Howe   v.    Freeman,    238. 

Howe  V.   Howe,   557. 

Howe  V.   Lewis,  254. 

Howe   V.    Russell,    228. 

Howe  V.  Wilder,   257,  518. 

Ixxii 


Howell  V.  Ackermam,  30, 

Howell  V.   Howell,   307. 

Howell    V.    Price,    224. 

Howell    V.    Ray,    574. 

Howell  V.   Richards,   614. 

Howell    V.    Saule,    592. 

Howell  V.   Schenck,   58. 

Howell    V.    Tyler,    404. 

Howland    v.    Coffin,    143,    147, 

llowland  V.    Shurlteflf,   247. 

Howse  V.   Barber,  30. 

Howse  V.    Dew,    593. 

Hoxsie  V.  Ellis,  85. 

Hoxie   V.    Finney,    622. 

Hoy   V.    Bramhall,    2.'J7. 

Hoy  V.   Holt,    146,   151. 

Hoyle    V.    Cazabat,    254. 

Hoyle  V.  Plattsburg,  etc.,  R.  R.,  238. 

Hoyleman   v.    Kanawha,    146. 

Hoyt   V.    Bradley,    237. 

Hoyt  V.  Hoyt,    463. 

Hoyt   V.    Kimball,    202. 

Hoyt   V.    Swar,    97. 

Hoyt   V.   Thompson,    249. 

Hubbard   v.    Gain,    592. 

Hubbard  v.  Hubbard,   207. 

Hubbard  v.   Little,   499. 

Hubbard  v.  Sage  Land  Co.,  126, 

Hubbard    v.    Shaw,    57,    246. 

Hubbard  v.  Town,   443. 

Hubbell   V.    Medbury,    368. 

llubbell   V.   Monkon,   243,   246. 

Hubbell   V.    Sibley,   278. 

Iluckaba   v.   Abbott,   236. 

lluckins  V.   Straw,  239. 

Iluckshorn   v.    Hartwig,   497. 

Huddleston  v.   Bellevue,  445. 

Hudgens  v.  Wilkins,  301. 

Iludnit    V.    Nash,    273. 

Hudson    V.    Poindexter,    572. 

Hudson    V.    Putney,    497. 

Huff    V.    Famell,    285. 

Huflf  V.   McCauley,   467,   563. 

Huff    V.    McDonald,    191. 

Huff   V.    Webb,    574. 

Hughes  V.    Blackwell,   247. 

Huglies  V.  Bucknell,  245. 

Hughes  V.    Devlin,   195. 

Hughes  V.    Edvv.^rds,  243,   247. 

Hughes  V.  Hatchett,  220. 

Hughes   V.    Hodges,    126. 

Hughes  V.   Holliday,   178. 

Hughes   V.    Nicklas,    401. 

Hughes  V.    Pickering,    497. 

Hughes  V.    Robotham,   155. 

Hughes   V.    Lawrence,    257. 

Hughes    V.    Watson,    97. 

Hughes  V.   Wells,   417. 

Hughes  V.    Woley,   236. 

Hughes   V.    Worley,    262. 

Huggins    V.    Hall,    274. 

Hup;hey   v.    Gregg,    92. 

Huie   V.   Gunter,   634. 

Hulett  V.   Inlow,   181. 

Hulett  V.   Stockwell,   139. 

Hulett  V.  Whipple,  217. 

Hulick   V.    Scovil,    520. 

Hull  V.   Beals,  321. 

Hull  V.  Burns,  146. 

Hull  V.  C.   B.  &  Q.    R.    R.   Co.,   488. 

Hull   V.   Hull,   90. 

Hull  V.   Vaughan,   166. 


TABLE   OF    CASES   CITED. 


[References  arc  to  Sections.] 


Hulme  V.    Shreve.   435. 
Hulme   V.   Montgomery,   479. 
Humberston  v.  Huraberston,  312. 
Hummer   v.    Schott,    217. 
Humphries   v.    Brogden,    448,    449. 
Humphries  v.   H"uffman,   495. 
Humphries   v.    Humphries,    58. 
Humphreys  v.  Newman,  584. 
Hundley   t'.    Mount,   584. 
Hungerford   v.    Bent,    146. 
Hunkins  v.   Hunkins,   88. 
Hunkley    v.    Green,    186. 
Humerell  7'.   Fargloe,  195. 
Hunt   V.    Danforth,    147. 
Hunt  V.   Holl,  68. 
Hunt  V.  Hunt,  247,   548. 
Hunt    V.    Maynard,    246. 
Hunt  V.  McHenry,  596. 
Hunt  V.  Roberts,  368. 
Hunt   V.    Rousmanier,    410,    569. 
Hunt   V.    Searcy,    49. 
Hunt  V.   Thompson,   149. 
Hunt  V.    Wickliff,    522. 
Hunt  V.  Wright,   192,  204. 
Hunter    v.    Dennis,   255. 
Hunter    v.    Kelly,    494. 
Hunter  v.   Martin,  184. 
Hunter   v.    Miller,   569. 
Hunter   v.   Osterhout,   208. 
Hunter  v.   Patterson,   49. 
Hunter   v.    Porter,    143,    462. 
Hunter   v.    Watson,    562. 
Huntington  v.  Allen,  493. 
Huntington  v.  Asher,   424. 
Huntington    v.    Cotton,    239. 
Huntington   v.    Havens,   512. 
Huntington  v.   Whaley,  493,  497. 
Huntley  v.    Cline,    199. 
Huntly    V.    Russell,    60, 
Hunton   v.    Nickols,   495. 
Hurd  V.  Case,  278. 
Hurd   V.   Curtis,   608,  624. 
Hurd   V.    Cushing,    46. 
Hurlburt   v.    Post,    153. 
Hurley  v.  Hurley,   187. 
Hurley   v.    Mclver,    118. 
Huron  v.   Wilcox,   205. 
Hurser   v.    Anderson,    257. 
Hurscy   v.    Hursey,    233. 
Hurst  V.   McNiel,   343. 
Hurst   V.    Rodney,    149,   626. 
Huse    V.    Dew,    577. 
Huson   V.   Wallace,   308.  ^ 

Huson  V.   Young,   435. 
Huss  V.   Morris,   417. 
Huss  V.   Stepens,   561. 
Hussey  v.  Blood,  187. 
Huston  V.   Cantril,  566. 
Hutch  V.   Holly,   127. 
Hutchins  v.   Byrnes,  550,   671. 
Hutchins  v.   Carleton,   250. 
Hutchins  v.  Heywood,  370. 
Hutchins  v.  King,   8,  238. 
Hutchins  v.  Low,  522. 
Hutchins  V.  Moody,  616. 
Hutchins  v.  Mum,  450. 
Hutchins  v.   State   Bank,   410. 
Hutchinson  v.  Chase,  190. 
Hutchinson  i:   Wells,  253. 
Huth  V.  Corondclct,  557. 
Huttemcier  v.  Albro,  432. 
Hutton  V.  Moore,  219. 


Huxley   f.    Rice,   368. 

Huyler  v.  Atwood,  253. 

Hyatt  V.   Pugsley,   478. 

Hyatt  V.  Wood,  170. 

Hybart    v.    Jones,    108. 

Hyde  v.   Hartford   Ins.   Co.,  248. 

Hyde   v.    Sone,    190. 

Hyland  v.   Habich,   236. 

Hyman  v.   Devereux,  251,  277. 

Hyman  v.   Read,   519. 

Hymes    v.    Bvirnstein,    494. 

Hynes   v.    Ecker,    139. 

llyndman  v.  Hyndman,  225,  235. 

Hyne  v.   Osborne,   576. 


Ide  V.  Ide,  298. 

Idle   V.    Cook,    39. 

Idley  V.   Bowen,   645. 

Ilfeld  V.   DeBoca,  580. 

111.  Cent.  R.  R.  v.  McCullaugh,  579. 

111.    Ins.    Co.    z'.    Stanton,    248. 

Illinois   R.   R.   Co.  V.  Indiana  R.  R.,  608. 

Illinois  Starch  Co.  v.  Ottawa  Hydraulic 
Co.,  132. 

Illinois   Steel   Co.  z'.   Budzisz,  517. 

Use   V.    Lannsheimer,    590. 

Inderlied  v.  Honeywell,   616. 

Ingalls  V.  St.  Paul,  etc.,  R.  R.  Co.,  9. 

Ingersoll  v.  Sergeant,   460. 

Ingle  V.   Culbertson,   278. 

Ingle  V.  Partridge,  380. 

Ingle  V.   Vaughan   Jenkins,  43. 

Inglehart   v.    Armiger,    219. 

Inglehart   v.    Crane,    289,    582. 

IngleruflF    v.    Robb,    282. 

Inglis    z).    McCook,    407. 

Inglis  V.   McCosk,   417. 

Inglis  V.  Trustees  of  Sailors  Snug  Har- 
bor,   641. 

Ingoldsby  v.   Juan,   .558. 

Ingraham    v.    Baldwin,    556. 

Ingraham   v.    Disboiough,   253. 

Ingraham   v.    Wilkins,    599. 

Ingraham  v.   Wyatt,   635. 

Ingram   v.    Hall,    573. 

Ingram   v.   Porter,   631. 

Ingram   v.    Sherwood's   Heirs,   532. 

Inhabitants,  etc.,  v.   Huntress,  553. 

Imlay   v.    Huntington,    73. 

Insurance   Co.   v.   Elwell,  253. 

International  Bk.  v.  Bowen,  257. 

International   Co.   7'.    Cichowicz,   529. 

International   Press  Ass'n  v.   Brooks,  144. 

Investment  Co.  v.   Adams,  275,  243. 

Investment    Co.    v.    I'ulton,   249. 

Iowa  College  Trustees  v.    Fenno,   260. 

Iowa  Loan  &  T.  Co.  v.  Mowery,  260. 

Iron   V.   Adler,   497. 

Irvin  V.   Clark.   302. 

Irvin   V.    Garner,   218. 

Irvine    v.    Irvine,    557. 

Irvine   v.    Marshall,    579. 

Irvine  v.  Muse,   218. 

Irving  V.  Campbell,  97. 

Irving  V.    Cunningham,    592. 

Irwin    V.    Corode,    64. 

Irwin  V.  Jackes,  632. 

Irwin  V.  Longworth,  609. 

Irwin   V.    Parkes,    371. 

Isbell  V.  Jones,  666. 


Ixxiii 


TABLE  OF   CASES   CITED. 


[References  are  to  Sections.] 


I»rtt  t'.   Lucas,  !51. 
Ishaui  t'.    Hcnnincton,  670. 
Uham   t'.   Morgan,   8. 
Isom   f.   Oil   Co.,   (io. 
Israel    r.    Israel,    191. 
Ives  f.   Pavcnport,  411. 
lyory    f.    Burns,    374,    567. 
Iiard  t'.   Middleton.  044. 
lion  r.  Gorton,   104. 


Tackinan  r.  KinRtand,  231. 
Tacks   f.    Henderson,    031,   051, 
Jackson  f.   Andrew,  CO,  559. 

Aller,   207. 

Beach,   54S. 

Billinjier.   397. 
Binnicker,    270. 

..    Blanshan,    387.   040. 

lackson  v.   Blodgett.  251. 
Jackson  v.  Bodle,  137.  578. 
lackson  v.    Bowen,   23fi,   253. 

Bradford,  514,  547. 

Bradt.    164. 

Brown,   312. 

Brownson,    57,   61. 

Bryan.    108. 
Jackson    r.    Bull,    30. 

Jackson  i'.   Burciun,  557 
ackson   v.    Cadwell,   530,    548. 
)ackson  r.   Catlin,  333,  579. 
lackson  r.  Carey,   342,  575. 
}ackson   v.   Carpenter,    556,   557. 
Jackson  t:  Catlin,  33,   579. 
Jackson   !•.   Cator,  06. 
ackson   r.   Chase,   554. 
Chew,    393. 
Churchill,    109. 
Clark,    592. 
Jackson  v.  Cody,  502. 
Jackson    v.    Collins,    158. 
Jackson  v.  Corliss,  140. 
Jackson  r.  Crafts,   278. 
Croy,   529. 
Crysler,   207. 
Delacroix,    135. 
DeLanccy,   240,   245. 
ackson   v.   Denniston,   634. 
ackson   r.    Dewitt,   87. 
ackson    v.    Deyo,    163. 
ackson  v.  Dieffendorff,  506,  594. 
Dillon,   .505. 
Doll,    142,    1.59. 
Dubois,    243,    260. 
Dunlap,    137. 
Dunsbaugh,  355. 


)  ackson  r. 
lackson 
lackson 
)  ackson 
Jackson 


Jackson 
Jackson 
Jackson 


Jackson  v. 
lackson 
Jackson 
lackson 


Jackson 
lackson 
lackson    v. 
Jackson   v. 
lackson  v. 


lackson  v.   Eldridge,  130. 

fackson   V.    Eli,    432. 
Jackson  v.  Elmendorf,  39i 
Jackson  r.    Elston,   494. 
Jackson  v.   Everett,   44. 
Jackson  v.  Florence,  505. 
Jackson  z>.   Foster,   498. 
Jackson    v.    Gardner,    156. 

{ackson  v.  Gilchrist,  558. 
ackson  v.  Given,  378. 
Jackson  v.  Gumaer,  556. 
lackson  v.  Harder,  193. 
Jackson  v.  Hardin,  637. 
Jackson  f.  Harrison,  150. 
Jackson    v.    Hart,    485. 

Ixxiv 


S  ackson    v.    Hart  well,    340. 
ackson   r.    Hathaway,   6Ul. 
ackson    v.    Henry,    278. 
ackson  v.   Hixon,    114. 
}ackson   v.    Hoffman,    512. 
Jackson   v.    Hoover,    631. 
Jackson  v.   Hopkins,  244,   253. 
Jackson    v.    Housell,    30. 
Jackson    v.    Hoyner,    574,    575. 
fackson  v.  Hubble,  547. 
Jackson  v.   Hull,  243. 
Jackson   v.   Ireland,   609. 
Jackson   v.  Jackson,    483,   632. 
Jackson  v.  Jansen,   407. 
Jackson   v.   Johnson,    80. 
Jackson   v.  Jones,    233. 
Jackson  v.  Ketchums,  559. 
Jackson   v.    King,    556. 
Jackson    v.    Kipp,    150. 
Jackson    v.    Kisselbrack,    136. 
Jackson   v.    Langhead,    147. 
Jackson   v.    Lawrence,    233. 
Jackson  v.  Leggett,  559. 
Jackson   v.    Lill,    640. 
Jackson   v.    Livingstone,    586. 
Jackson   v.    Loomis,    500. 
Jackson   v.   Losse,    273. 
Jackson  v.  Lynch,  231,  247. 
Jackson   v.    Mancius,    51. 
Jackson  i:  Matdurf,   367,  514. 
Jackson    v.    McCall,    596. 
Jackson   v.    McKenny,    543. 
Jackson  v.   McLeod,   164. 
Jackson   v.   Miller,    166. 
Jackson   v.    Miner,   562. 
Jackson   v.   Minkler,   253. 
Jackson   v.   Moore,    178,   482. 
Jackson  v.   Morse,   365. 

Jackson   v.    Murray,    511,    621, 
ackson  v.  Myers,   46,   136. 
Jackson   v.    Newton,    494. 
Jackson  v.  Odell,  153, 
Jackson   v.    O'Donaghy,   85. 
Jackson    v.    Ogden,    510. 
Jackson    v.    O'Roark,    178. 
Jackson  v.  Osborn,  554. 
Jackson   v.    Parkhurst,    170. 
Jackson  v.  Peck.  622. 
Jackson    v.    Phillips,   641. 
Jackson    v.    Phipps,    577. 
Jackson  v.   Pierce,   165. 
Jackson    v.    Reeves,    603. 
Jackson  v.   Richards,  137. 
Jackson   v.    Roberts,    529. 
Jackson  v.    Rowland,   157,   579. 
Jackson  v.  Salmon,  164. 
Jackson  v.  Schauber,   378,   407. 
Jackson    v.    Schoomaker,    574,    576. 
Jackson   v.    Sebring,    548. 
Jackson    v.    Sellick,    80. 
Jackson   v.    Sharp,    497. 
Jackson  v.   Sheldon,   579. 

Jackson   v.   Shepard,   532. 
ackson  v.  Slater,   247, 
Jackson  v.  Snodgrass,  504. 
Jackson   v.    Spear,    157. 
Jackson  v.   Stackhouse,  254. 
Jackson  v.   Staats,   393. 
Jackson   v.   Stevens,    514,   621. 
Jackson   v.    Swart,    543. 
Jackson   v.   Ttbbits,    60.   186. 


TABLE   OF   CASES   CITED. 


[References  arc  to  HeciionsJ] 


Jackson  v.  Topping,  207. 

Jackson    v.    Town,    5S:'>. 

Jackson  v.  Vanderheyden,  85,  529. 

Jackson  v.  Van   Uuysen,  C32. 

Jackson  v.   Van    Hoesen,   51. 

Jackson   v.    Vanslick,    38ti. 

Jackson  v.    Van    Zandt,    45. 

Jackson  v.    Vincent,    158. 

Jackson    v.    Waldron,    512. 

Jackson   v.  Walker,  370. 

Jackson   v.   Walsh,   279. 

Jackson   v.    Walters,   294. 

Jackson   v.  Wendel,    572. 

Jackson   v.   Wheat,   492,   497. 

Jackson  v.   Wheeler,    158. 

Jackson  v.  Whitbeck,   186. 

Jackson   v.    Willard,    239,    250. 

Jackson   v.    Winslow,    C-'2. 

Jackson   v.   Wood,    572,   G34. 

Jackson   v.   Wright,   5GG. 

Jacob   V.    Yale,    514. 

Jacobs    V.    Allard,    444. 

Jacoby   v.    Crowe,    260. 

Tacoby  v.    Parkland   Distilling   Co.,   123. 

Jacocks    V.    Gilliam,    514. 

Jacoway  v.  Gault,  574. 

Jacquat   v.    Bachman,    141. 

Jaffa  V.   Harteau,    146. 

Jaffers   v.    Aneals,    126. 

Jahway  v.   Barrett,  494. 
amaica   Pond  v.   Chandler,  606. 
James   v.    Cowing,    380. 
ames  v.    Dean,    163. 
James  v.   James,   124. 
James  v.  Johnson,   250,  582. 
James  v.  Johnstone,  229. 
Tames   v.    Marvin,   649. 
James,  v.  Morey,  242,  584. 
lames  v.    Plant,   606. 
Tames  v.  Rice,  213. 
James  v.   Stiles,   532. 
James  v.  Thomas,   234. 
James   v.    Vanderheyden,    579. 
James  v.  Whitbread,  562. 

James  v.  Worcester,  239. 
ames   v.   Wynford.   399. 
Jameson  v.   Emerson,  233. 
amieson  v.  Milleman,   467. 
Jamison  v.   Smith,   557. 
amison  v.   Wesner,   126. 
Jane  v.  Gregory,  579. 
Janes  v.  Dougherty,  032. 
Janes  v.  Jenkins,  619. 
Janes  v.   Penny,  573. 
Janes  v.  Throckmorton,  498. 
Janis   V.    Patterson,    494. 
Taques    v.    Gould,    149. 
Jaques  v.   Methodist   Church,    678. 
Taques  v.    Weeks,   236,    584. 
Jaqui   V.   Johnson,    435. 
Tarvis   v.    Aikens,    582. 
Tarvis   r.    Davis,    31. 
Tarvis  v.   Dutcher,   213,  216. 
Jcffers   V.   Sydnam,   54. 
Jefferson ville,  etc.,   R.  Co.  v.  Oylcr,  604. 
Jeffray   v.   Tower,   368. 
Jeffrey  v.   Hursh,   229. 
Jeffries  v.    Allen,   90. 
Jencks    v.    Alexander,    270,    367. 
Jenkins  v.    Berry,   641. 
Jenkins  v.  Compton,  298,   408. 


Jenkins  v.    Doolittle,   368. 

Jenkins   f.   Ereyer,   302. 

Jenkins   ?•.    I'rink,   368. 

Jenkins  t.   Gcthing,   16. 

Jenkins  v.   Hart,   572. 

Jenkins   f.    Hopkins,    617. 

Jenkins  v.    International   Bank,  280. 

Jenkins    v.    Jenkins,    556. 

Jenkins   v.    Smith,    274. 

Jenkins   v.    Teager,    494. 

Jenkins    v.    Young,    341. 

Jenks   V.  Alexander,    410. 

Jenk's  Lessee  v.  Backhouse,  176. 

Jenks   V.    Morgan,    595. 

Jenks   V.    Ward,    617. 

Jennert  v.  Houser,   411. 

Jennings  v.    Harrison,    509. 

Jennings  v.   Morton,   616. 

Jennings    v.    Ward,    234. 

Jennings    i'.    Wood,    5S4. 

Jennison  v.   Ilapgood,   90,   116. 

Jenny    v.    Andrews,    420. 

Jenny  v.   Jenny,   96. 

Jerome   v.    Carter,    273. 

Jervis  v.    Benton,  38. 

Jesser   v.    Gifford,    295. 

lesson    V.    Doe,    322. 

Jeter    v.   Glenn,    626. 

Jeter  v.   Penn,   160. 

Tetter  v.  Lyon.  204,  207. 

Jewell  V.  Warner,  45. 

"ewett  V.    Brock,   1;J1. 

ewett  V.   Poster,  593. 

ewett  V.  J  ewett,   435. 

ewett   V.    Whitney,    186,    435. 

ewett's  Lessee  v.  Stockton,  593. 

obe    V.    O'Brien,    28.'). 

offe    V.    Harteau,    151. 

ohannes  v.  Kielgast,  172. 

ohn   V.    Bumi)stead,    278. 

ohn   Hancock,  etc.,  v.   Patterson,  432. 

ohn    V.    .\ut,    238. 

ohn   van   Range  Co.   :'.    .Mien,   13. 

ohnes  v.  Beers,  3i'l.  . 

ohns  V.   Church,   230. 

ohnson    v.    Anderson,    257.    COl. 

ohnson  v.   Beauchamp,   liiO. 

ohnson    v.    Blair,    190. 

ohnson   v.    Blydenburg.    020,   238. 

ohnson   v.    Bowtock,    547. 

ohnson  v.  Boorman,  447. 

ohnson  v.  Brailsford,  645. 

ohnson  v.   Buckhanlts,  272. 

ohnson  t'.   Callmon.  574. 

ohnson  v.  Calloway,  574. 

ohnson  v.   Camp,   59. 

ohnson    v.    Cawthorne,    217. 

ohnson    t'.    Clark,    185. 

ohnson  Co.  v.  Wood.   592. 

ohnson   v.   Collins,    522,    625. 

ohnson   v.    Copeland,    629. 

ohnson   v.   Cornett,    250. 

ohnson  v.  Gushing,  420. 
Johnson    v.    Dougherty,   368. 
Johnson    v.    Elliott,    116. 

ohnson   v.   Elwood,   532. 

ohnson's  Exr.  v.  Citizens  Bk.,   393. 

ohnson   v.    Farley,    576. 

ohnson    v.    Farrell,    637. 

ohnson   v.    Colder,    275. 

ohnson  v.  Gordon,   116. 

Ixxv 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


lohnion  r.  Gorham,   407. 

lohnwn    v.    Hart,    1S'>>. 

Tohnson  v.  Johnson,  313. 

Johnson   f.  Jordan,   iii'2. 

Johnson  f.   Knapp.   4 ■IT. 

Johnson   f,    Lcliigh   Valley   Co.,   148. 

Johnson  f.   Massy,  587. 

Johnson   r.    Mcintosh,    485.    ;">19. 

Tohnson   f.    M.    E.    Church,   631: 

Tohnson  :•.  ^!chafl^y,  16. 

Johnson  t.  Miller.  96,  245. 


Johnson 
Johnson 
Johnson 
Tohnson 
"tohnson 


Morton.   33. 
Nycc,    618. 
Parker,    97. 
Phillips,   27.- 
Prairie,   559. 


lohnson  f.  Quarles,  367. 
Johnson  t 
)ohnson  t 
lohnson  5 
Co..  441 
Ji'hnson 


Shank,  160. 
Sharp,  637. 
Shelter    Island 


Grove,    etc., 


{ones  v. 
ones 
Jones 


Shields.  85. 
ihnson  v.   Simcock,   640. 
Tohnson  t'.   Simpson,  592. 
Johnson  v.   Smith,  233. 

Johnson    v.    Stevens,   239,   593. 
ohnson's   Trustee  v.   Johnson,    420. 
Valentine,   301. 
Van    Dyke,    105. 
Warren,  202,  28. 
White,   265. 

.    ,     Wooding,   16. 

Johnston   v.   Gray,   234. 
Tohnstone   r:    Huddlestone,    156. 
Johnston  v.  Hyde,  435. 
Tohnston  v.  Johnston,  240. 
Johnston  v.  McDuflf,  273. 
Johnston    v.    Reilly,    368. 
Tohnston   v.    Wallace,    574. 
Tones  v.    Hunt,    105. 
Jones   .\ssn.  v.  Clifton,  420. 
Tones  z:    Bacon,   298,    408. 
Tones  71.    IJeers,   302. 

Blake,   231,  233. 
Brewer,   85. 
Britton,    121. 
Tones  v.  Blumenstein,  127. 
Jones  V.   Butler,   556,  557. 
Jones  V.  Cable,  640. 
Jones  V.   Carter,  569. 
Tones  v.  Chappell,  60,  66. 
Jones  V.   Chiles,   186. 
Jones  V.  Clark,  245. 
Tortes  V.  Conde,  221,  276. 
Jones  V.   Crane,   176. 
lones   V.    Crawford,    572. 
Jones  V.   Currier,    126. 
Tones  z:  Davies,  155. 

De  Lassus,  186,  608. 
Dexter,  368. 
Tones  t:   Dougherty,  380. 
Jones  V.    Felch,    149. 
Froed,   69. 
t:  Gaddis,  493,  504. 
!•.  Gibbons,  261,  582. 
!'.    Herrick,   504. 
Jones  r.   Hill,  74. 
Jones  T).    Hough,   574. 
Jones  7\   Jones,  96,  649. 
Tones   V.    Kimball,    596. 

Jones  V.   Laughton,  .322. 
ones  V.   Loveless,  577. 

Ixxvi 


Jones  V. 
Jones  r. 


Jones    V.    Marsh,    168. 

tones  V.  Merchants  Nat.   Bank,  509. 

Jones  V.  Moffett,  377. 

Jones   V.    Motley,    604. 

Jones    V.    Myrick,    285. 

"tones  V.  Pashby,  604. 

Jones    V.    Patterson,    69. 

Jones   V.    Percival,   440. 

Jones  V.  Perry,  524,  526. 

Jones  V.   Phelps,   260. 

Jones  V.   Pierce,  233. 

lones  V.    Rigby,   275. 

Jones  V.    Robbins,   126,   127. 

Jones   V.    Roe,   207,  292. 

Jones   V.    Rogers,    529. 

Jones  V.    Roper,   126. 

Jones   V.    Sherrard,   54. 

Jones  i>.   Sheward,  287. 

Jones  V.   Shewmake,  649. 

Jones  V.   Thomas,    59. 

Jones  V.  Thorn,  80. 

Jones  V.   Todd,  97. 

Jones   V.    Waddy,    122. 

Jones  V.   Wagner,  448. 

Jones  V.  Weathersbee,  186. 

Jones  V.   Whithead,   65. 

Jones   V.    Winwood,    405. 

Jordan   v.    Bryan,    160. 

Jordon   v.    Fenno,    233. 

Jordan   v.    Furlong,    257. 

Jordan   v.    Lang,    504. 

Jordan   v.   McMilty,   195. 

Jordan   v.    Smith,    256. 

Jordan  v.  Staples,  IGO. 

Jordan  v.   Stevens,   543,   554. 

Joseph  V.  Fisher,   87,  569. 

Joslin    V.    Rhoades,    298. 

Joslin   V.  Jones,   434. 

Journegy  v.    Brackley,   140. 

Joslyn   V.   Wyman,   257,   262. 

Joy  V.  McKay,  163. 

Toyes    v.    Louisville,    300. 

Toyner   v.    Futrell,    300. 

Juck   V.   Fewell,   495. 

luckett  V.   Fargo  Merc.  Co.,  242. 

Judd  V.   Seekins,  242. 

Judge  of  Probate  v.  Stone,  556. 

Judson  V.  Gibbons,  377. 

Judson  V.    Sierra,    oto. 

Jumel  V.  Jumel,   257,  586. 


Kabley  v.  Worcester  Gas  Co.,  136. 
Kager  v.   Brenneman,   86. 
Kaiser  v.   Earhart,   514. 
Kakley  v.  Shelley,  225. 
Kaler  v.  Beaman,  435. 
Kalis  V.    Shattuck,   146. 
Kalpatrick  v.  Mayor,  205. 
Kane  v.   Sanger,  624. 
Kane  v.  Vanderburgh,  68. 
Kankakee,  etc.,  R.  R.  v.  Horan,  444. 
Kannady  v.  McCarron,  243. 
Kanovalinka  v.  Schlegel,  118. 
Kansas  City  Land  Co.  v.   Hill,   302. 
Karkon  v.  Sawmill  Co.,  558. 
Karn   v.    Haisley,    494. 
Karnes  v.   Lloyd,   243. 
KanflFelt  v.   Bower,  217. 
Kauffman  v.   Fore,   127. 


TABLE   OF    CASES   CITED. 


[References  are  to  Sections.'] 


Kauffman  v.  Liggett,  159. 

Kauffman  v.   Peacock,   90. 

Kaul  V.  Brown,   637. 

Kay  V.  Penn.  R.  R.,  468. 

Kay   V.    Whittaker,    273. 

Kaye  v.  Kaye,  71. 

Kayer   v.    Brenneman,    94. 

Kean  v.  Connely,  191. 

Kean  v.  Hoffecker,  385. 

Kean    v.    Kolkschneider,    138. 

Keaney  v.   Keaney,   631. 

Kearney   v.    Fleming,   364. 

Kearney   v.  Kearney,   66. 

Kearney  v.   McComb,  231,  570. 

Kearney  v.   Post,  139. 

Kearsing  v.  Kilian,  578. 

Keating  v.   Condon,    141. 

Keating  Implement  Co.  &  Machine  Co.  v. 

Power    Co.,    9. 
Keats  V.  Hugo,  443. 
Keay  v.  Goodwin,  186,  193. 
Kebabian    v,    Shinkle,    205. 
Keech  v.   San  ford,  368. 
Keedle   v.   Flack,   253.     ^ 
Keeler  v.    Eastman,   62. 
Keeler  v.  Tatnell,  97. 
Keeler  v.  Wood,  608. 
Keely  v.   Moore,   556. 
Keho  V.  Auditor  General,   532. 
Keisel  v.   Earnest,   191. 
Keisewetter   v.   Kress,    126. 
Keith   z:    Carver,    194. 
Keith  V.  Horner,  217,  219. 
Keith   V.    Scales,   36,   45. 
Keith  V.   Trapier,   90. 
Keith  V.  Twentieth  Cent.  Club,  432. 
Keith  V.  Wolf,  218. 
Kell  V.  Charmer,   631. 
Kella  V.   Miles,   154. 
Kellar   v.   Lamb,   80. 
Kellar  v.  Sinton,   236. 
Keller  v.  Ashford,  253,  622. 
Keller  r.  Micheal,   85. 
Kelley  v.    Greenleaf,   368. 
Kelley  v.  Jenness,  367. 
Kelley  v.   Thompson,   229. 
Kellngg   V.    Ames.    257,    258. 
Kellogg  V.   Frazier,  236. 
Kellogg  V.  Malin.  615,  617. 
Kellogg  V.  Mullen.  496. 
Kellogg  V.  Piatt,  619. 
Kellogg  V.    Rockwell,   246. 
Kelsey  v.   Hardy,   478. 
Kelso  V.   Fleming,  253. 
Kelsoy  v.    Farmers  &  Traders  Bank,  278, 

282 
Kelly  r.  Baker,  123. 
Kelly   V.    Burnham,   250. 
Kelly  V.   Connell,    126. 
Kelly  V.    Hill.   233. 
Kelly   V.    Kelly.   640. 
Kelly  V.  Longshore,  274. 
Kelley  v.  McBlain,  611. 
Kelly  V.  McGuire,  478. 
Kelly  V.  Miller,  634. 
Kelly  V.  Mills,   583. 
Kelly  V.  Palmer,  504. 
Kelly  V.   Pavne,   219. 
Kelly  V.  Thomnson.  229,  231. 
Kelly  V.    Waite,    163. 
Kelly  V.  Watson,  160. 


Kelly  V.  Weston,   160. 

Kemerer  v.  Bloom,  257. 

Kemp  V.  Bradford,  301. 

Kempner  v.  Comer,   272. 

Kempton   v.   Veker,    149. 

Kemson   v.   Ashbee,   556. 

Kenady  v.    Edwards,    375. 

Kendall  v.  Garland,  149. 

Kendall  v.  Lawrence,  556. 

Kendall    v.    Treadwell,    272,    275. 

Kendrick  v.  Judas,  140. 

Kendrick  v.  Latham,  r)04. 

Kenicott  z'.  Supervisors,  253. 

Kenin  z'.   Browning,   163. 

Kennard  v.   Kennard,   301. 

Kennebec  Purchase  v.   Snringer,  495. 

Kennebec   Purchase   v.   Tiffany,   595. 

Kennedy  v.   Dickey,   384. 

Kennedy  v.    Hoy,    399. 

Kennedy  v.  Johnstone,  118. 

Kennedy  v.  Kennedy,  393. 

Kennedy  v.   Maness,   546,    592. 

Kennedy   v.    Marrast,    556. 

Kennedy  v.  McCartney,  519. 

Kennedy  v.   Mill,   118. 

Kennedy  v.   Nat.    Bank,   126. 

Kennedy  v.   Nedrow,   117,   118. 

Kennedy  v.   Northrup,  582. 

Kennedy  v.  Nunan,  366,  370. 

Kennedy  v.   Price,   367. 

Kennedy   v.   Taylof,    367. 

Kennerly   v.    Burgess,    265. 

Kenniston  v.   Leighton,  329. 

Kenny  v.   Barnes,    161. 

Kenny   v.   Udell,   70. 

Kenoye    v.    Brown,    178. 

Kenrick  v.  Latham,  494. 

Kensington    v.    Gerhart,    54. 

Kent   V.   Gerhard,   217,    218. 

Kent  V.  Wait,  606. 

Kent  V.   Welch,   623. 

Kent   V.    Williams,    259. 

Keppell  V.  Bailey,  147. 

Kercheval   z'.   Triplett,   512. 

Kerley  v.  Kerley,   121. 

Kern  v.    Soxman,   634. 

Kernochan  v.   Bowery   Ins.   Co.,  248. 

Kerns  v.  Swope,  581. 

Kerr  zi.  Bell,  556. 

Kerr   v.    Freeman,    547. 

Kerr  v.  Gilmore,  233. 

Kerr  v.   Hill,   231. 

Kerr  v.  Hitt.  495. 

Kerr   v.   Moon,    629. 

Kerr  v.  Russell,  97. 

Kerrains  v.  People,  170. 

Kerrigan  z'.   Hart,   645. 

Kersenbrock  v.  MuflF,  269. 

Kershaw  v.  Thompson,  275. 

Kcssler  v.  McConachy,  154. 

Kesterson  v.   Bailey,   300. 

Kctchin  v.  Patrick,  199. 

Ketchin  v.   Rion,   411. 

Ketchum   v.   Barber,   562. 

Key  V.  Gamble,  385,  387. 

Keyport  Steamboat  Co.  v.  Farmers  Trans. 

699. 
Keyser  v.   Covell,    447. 
Keyser  v.  Mitchell,  370. 
Keyser  v.  School  District,  9. 
Keyes  v.   Scanlan,   127. 

Ixxvii 


TABLE   OF   CASES   CITED. 


[References  arc  to  Sections.] 


Kibhy  r.  Chitwood,  624,  628. 
KiiMcr   t.   Huvcr,   298. 
Kiuti    f.    Dcnnison,    62. 
Kida    r.    Tccple.    238. 
Kie«er  t.   Imhof,   U9. 
Kier  t.   I'ctcrion,  5,  64. 
K.ghly  t.    Bulkly,   1«4. 
Ki.Liic  f.  Myric.  ruifi. 
Ki.l»n.ih  t .   {<oots  Ailmr.,  90. 
Kile    I.    1-icming,    VJi. 
Kile   f.   Gielmcr.    1(>. 
Kil^our  f.  Crawford,  105. 
Kiigore  f.  KilKorc,  3Ul. 
Kiigore   f.    Kirkland,    504. 
Kdlburn  t.    Kobins,  280. 
Killorfti  t.   .Murtaugh,  157. 
Kilpatrick  t.    Kilpatrick,    217. 
Kimball    f.    Ulaisdcll.    512. 
Kimball   f.   Cross,    159. 
Kimball  t.  Kimball,  92. 
Kimball   f.    Lcwiston,    265. 
Kimball  r.   Lockwood,  157,  245. 
Kinball  f.   Lohmas,  494. 
Kimball   f.    Rogers,   606. 
Kmibail  r.  Rowland,  150,  169. 
Kimball  v.   Schoff.  514. 
Kimball   t:   Stout,   642. 
Kimball  v.  Temple,  619. 
Kimball  f.    Withington,  608, 
Kime    V.    Brooks,    571. 
Kimmel  f.  Willard,  256. 
KimiiuU  f.  Caruthers,  126. 
Kimpton  -.■.  Walker,   143,  145. 
Kincaid  i:   Brittain,  614. 
Kircaid   ;•.    McGowan,    608. 
Kindley  v.  Spraker,   126. 
Kindro  i:  Johnston,  640. 
King  T'.   Aldborough,   139. 
King    f.    .Anderson,    149. 
King  r.   Bell,  376. 
King  f.  Bronson,  278. 
King  V.  Creekmore,  161. 
King   f.    Donnelly,   377. 
King  r.   Duntr,   278. 
King   f.    Foscue,    58. 
King  V.  Gilson,  554,  621. 
King  r.  Goetz,  125,  126. 
King  7:  Grant,  204,  640. 
King  r.  Horndon,  468. 
King  r.  Hunt,  493. 
King  V.   Ins.   Co.,  246. 
King  f.   Kilbride,   622. 
King  f.    Kilbridge,   622. 
King  T.  King.   117,  236, 
King   1-.    Lawson,    162. 
King  V.  Little,  229. 
King  f.    Longnor,   569. 
King  I'.   McCarley,   123. 
King  r.    Murphy,    435. 
King  f.    Mut.    Ins.   Co.,  248. 
King  V.  Phillips,  186. 
King  r.  Portis,  583,  584. 
King  V.  Quincy   Bank,  217. 
King   V.    Raab,    159. 
King  r.  Reed.  197. 
King  r.  Scroggin,  299. 
King  V.  State  Ins.  Co.,  248. 
King  V.  Stetson,  94. 
King  V.  St.  Pat.  Cathedral,  606, 
King  V.   Frick,  301. 

Ixxviii 


King  r.    Wells,   608. 

King  V.  Wliiltic,  59. 

King  t'.    Wilson,    i:!9. 

King  f.  Yarborough,  489. 

Kingdons  f.    Bridges,  367, 

Kingdon  v.  Nottle,  614. 

Kingland    r.    Clark,    152. 

Kingman   v.    Sinclair,    204. 

Kingsbury    v.    Buckner,    255. 

Kingsbury   v.    liurnside,    576,    598. 

Kingsbury  v.  Collins,   164. 

Kinsley    v.,  Ames,    277. 

Kingsley  v.  Ilolbrook,   50,   573. 

Kingsmill    v.    Millard,    157. 

Kimmarle    v.    Houston,    ttc,    R.    R.    Co., 

574. 
Kinnear   v.    Lowell,    257. 
Kinna   v.    Smith,    226,  240. 
Kinnan  v.  Card,  301. 
Kinnear  v.   Lowell,  284. 
Kinnebren  v.  Kinnebren,  565. 
Kinsley  v.  Abbott,   176. 
Kinsley   v.   Scott,  275. 
Kintner  v.  Jones^  373,  380. 
Kintz  V.    Friday,    48(t. 
Kip  V.  Bank  of   New  York,   370. 
Kip  V.   Deniston,   380. 
Kiplinger  v.  Meeks,  160. 
Kirby   v.    Giddings,    126. 
Kirchner    v.    Miller,    510. 
Kirschner  v.  The  W.  &  A.  R.  Co.,  429. 
Kirk  V.  Dean,   85,   97. 
Kirk  f.  King,  516. 
Kirk  V.   Mattier,   4,   8. 
Kirkendall    v.    Mitchell,    614. 
Kirkham  v.  Sharp,   438. 
Kirkham   7-.    Wheeler   Co.,    515. 
Kirkman  v.  Wadsworth,  411. 
Kirkpatrick  v.  Chestnut,   403. 
Kirkpatrick   7'.    Kirkpatrick,    98,    294, 
Kirkpatrick  v.    Peshine,   205,   626. 
Kirksey  v.    Cole,   53. 
Kirkwood   v.   Smith,   579. 
Kisler    v.    Kisler,    368. 
Kisler  v.    State,   585. 
Kisterbock  v.    Lanning,    13. 
Kistland   v.    Pounsett,    166. 
Kitchell  V.   Burgwin,   123. 
Kitchen   v.    Bedford,   373. 
Kitchen  Bros.  v.  Philbin,  154. 
Kitchen  v.   Lee,    556. 
Kittle  V.   Van   Dyck,   94,   274. 
Kittler  v.  Studebaker,  249,  251. 
Kittredge  v.   Woods,    59. 
Klappner   z'.   Laverty,   322. 
Klee  V.   Trumbull,   213. 
Kleppner  v.  Laverty,  32:,  397. 
Kleven  v.  Gunderson,  603.  ■>■ 

Kluick  r.  Keckeley,  87,  94. 
Kline  v.    Beebe,    80. 
Kline  v.  Jacobs,   191. 
Kline  v.  McLean,   134. 
Kline  V.   Ragland,  514. 
Klock  V.  Walter,   233. 
Kloss  V.  Wylezalek,  127,   197. 
Knarr  v.  Conaway,   265. 
Knecken   v.    Voltz,    427,    435. 
Knell  V.   Green   St.   BIdg.   Assn.,  260. 
Knepper  v.  Kurtz,  619. 
Knevals  v.  Prince,  193. 


TABLE   OF    CASES   CITED. 


[References  are  to  Sections.] 


Knight   V.   Bell,   72. 

Knight  V.  Clements,  554. 

Knight  r.  Denmore,  518. 

Knight   V.    Dyer,   229. 

Knight  V.    Elliott,   596. 

Knight  V.   Houghtaling,  270. 

Knight  V.   Knight,   173. 

Knight  f.  Mahoney,  204. 

Knight  V.   Mains,   92. 

Knight  I'.   Mosley,   64. 

Knight  V.   Paxton,   305. 

Knoderer  '•.   Merriman,  393. 

Knotson   r.    Vidders,    509. 

Knotts  V.   Hydrick,   4. 

Know  V.  Hinson,   494. 

Knowles  v.  Brown,  498. 

Knowles  v.   Nicholls,  426. 

Knowles  r.  Toothaker,  510. 

Knowlton   v.    Walker,    247. 

Knox   V.    Armstead,    279. 

Knox    V.    Easton,    243,    244. 

Knox  V.    Hook,    498. 

Kock  V.   Briggs,   282. 

Koehler  v.   Black   River,  etc.,   Co.,   572. 

Koehler  v.  Klins,  197. 

Koehler  v.  Schneider,  156. 

Koely  V.   Phelps,    160.     . 

Koenigheim  v.   Miles,   608. 

Koepke   !■.    Winterfield,    615. 

Kohlheim   v.   Harrison,  247. 

Kolasky    v.   Mickles,    147. 

Kortright  v.  Cady,  254. 

Koston   V.   Storez,   583. 

Konvalinka  v.   Geilbel,   301. 

Kradler  v.    Sharp,    61C. 

Kramer  r.   Cook,  137. 

Kreamer  v.   Fleming,   85. 

Kreamer    z'.    Voneida,    53  6. 

Kreset   v.    Meyer,    173. 

Kripp   V.    Curtis,    439. 

Kron   V.    Kron,    34. 

Krueger  r.    Ferry,  284. 

Kruger  ?•.    Le   Blanc,  122. 

Kruse  v.  Hollzer,  590. 

Kuhn  z'.    Newman,   3()1. 

Kuhn    V.    Rumpp,   233. 

Kunkle  r.  Wol  f sberger,  229,  245. 

Kuntz  V.  Marenholz,  134,  135. 

Kursheedt  v.   McCune,   250. 

Kursheedt  r.  Union  Dime  Sav.  Inst.,  273. 

Kurst   V.   Paton,   301. 

Kurz  V.   Brusch,   123. 

Kutter  V.  Smith,  18,  133. 

Kutz  V.   McCune,    617. 

Kyle   V.   Kavanagh,  547. 

Kyles  V.  Tail's  Admr.,  217. 


Labcree  v.  Carleton.  202,  666. 
Lacey  v.    Floyd.  321,  401. 
Lacey  v.   Marnan,  625. 
Lackland  v.  Nevins,  307. 
Lackman  v.  Wood,  515. 
Lacon  v.   Allen,  213. 
Lacy   V.   Hale,   368. 
Ladan  v.    R.    R.   Co.,   260,   268. 
Ladd  V.  City  of  Boston,  434. 
I.add    V.    Ladd,    407. 
Lafarge  v.  Mansfield,  181. 


Lafavour  v.  Homan,   498. 

Lafayette  v.  Blanc,  521. 

Lafferty  v.   Whitesides,  365. 

La   Frombois  v.   Jackson,    495. 

Lagow    V.    Badollet,    217. 

La  Grange  Mills  v.  Kener,  473. 

Laidley  v.  Aikin,  260. 

Lake  v.    Brown,    282. 

Lake   v.   Craddock,   176. 

Lake  v.  Doud,  228. 

Lake  v.  Gray,   574. 

Lake  v.  Nolan,  92,  96. 

Lake  i:  Thomas,  247. 

Lakin  v.   Lakin,   98. 

Larkin   v.    Sierra    Buttes    Gold    Min.    Co., 

368. 
Lalanne  v.  Payne,  242. 
Lamar  v.   Minter,   500. 
Lamar  v.  Scott,  85. 
Lamb  v.  Dan  forth,  178,  199. 
Lamb  v.   Girtman,   633. 
Lamb  v.  Lamb,   574,   637. 
Lamb   z\    Montague,    255. 
Lambert    v.    Esties,    625. 
Lambert  v.  Hyers,  274. 
Lamberton   v.    Van   V'oorhis,      217. 
Lambden  v.   Sharp,   572. 
Lamdert  v.    Blumenthal,    195. 
Lampert  v.   Haydel,   370. 
Lampleigh  v.  Lampleigh,  329. 
Lampman  v.   Mi.ks,   432. 
Lamson  v.    Clarkson,   157. 
Lamson  v.   Drake,  258. 
Lancaster  Co.   Bank  r.  Stauffer,  82. 
Lancaster   v.    Dolan,    347,   348. 
Lance  v.   Butler,    18.'). 
Land    v.    Lane,    242. 
Land    v.    May,    234. 
Landa   v.    Obert,    257. 
Landars  v.   People,  533. 
Landers  v.    Bolton,   574. 
Landrum  7'.    Union    Bk.   of   Mo.,   278. 
Landt  v.    Schneider,    143,   146. 
Lane  v.   Davis,  251. 
Lane  v.    Debenham,    378. 
Lane  v.  Dighton,  367. 
Lane  v.  Dorman,  524. 
Lane   v.    Duchac,   585. 
Lane  v.   Hitchcock,   265. 
Lane  v.   King,   59,   245. 
Lane  z'.  Ludlow,  220. 
Lane   v.    Richardson,    126. 
Lane  v.   Shears,  229. 
Lane  v.  Tainter,  574. 
Lane   v.   Thompson,    591. 
Lane  v.  Tyler,   184. 
Lanfair   v.    Lanfair,   230. 
Lang  V.   Waring,   184,   185. 
Langdon  v.   Buchanan,  13. 
Langdon  v.  Paul,  265. 
Langdon  v.   Poor,   532. 
Langdon  v.  Strong,  296,  528. 
Langes  r.  Murservey,  233. 
Langford  v.   Eyre,   411. 
Langford  v.   Selmes,  469. 
Langlcy  v.  Ross,  148. 
Langley  v.  Trust  Co.,   642. 
Langmaid  v.  Hurd,  640. 
Langston  v.  Love,  250. 
Langston  ?'.  Maxey,  127. 

Ixxix 


TABLE   OF   CASES   CITED. 


[Referenoea  are  to  Bectiona.] 


Langton  v.  Horton,  583. 

Lannar  f.  Wilson,  274. 

Lanning  r.  Gay.  «52. 

Lanoy   t.   Athol,   290. 

Lansing  Engine  Works  f.  Walker.  10. 

Lansing  r.  Goelet.  272,  276. 

I^n»ing   t.   Stone,   66. 

Lansing  t.  Wis* all,   432. 

L.i|>eyre  t.    Paul,   498. 

Lapslcy  f.  Lapsley,  397. 

Laramore  f.  Munish,  504. 

Large  f.   Van  Doren,  236,  257. 

Larkin  f.   Misland,   144. 

Larmour    f.    Rich,    301. 

Lamed  f.   Clark.   103. 

Larrcbce  t'.    Lumbcrt,   248,  251. 

Larrowc  f.    Beam,   105. 

Lasala  f.   Holbrook,   448. 

Laster  r.   Blackwell,  320. 

Latham  v.   Blakely,  13. 

Latham  i .  Henderson,  367. 

Latham  r.  Staples,  219. 

Lathrop  v.  Atwood,  616. 

Lathrop  v.  Foster,  109. 

Lathrop  v.  Standard  Oil  Co.,  172. 

Latnam  v.  Morgan,  623. 

Laughlin  v.  Kieper,  572. 

Laughran    f.    Ross.   18. 

Laughton  v.   Atkins,  645. 

Laurengel  f.   De   Boom,  374. 

Lavender  v.  Abbott,  217,  218. 

Lavenson  v.  Standard  Soap  Co.,  13. 

Lawrence    v.    Brown,    85. 

Lawrence  v.   Burrell,  153. 

Lawrence  v.  Cooke,  373. 

Lawrence  v.  Cornell,   283. 

Lawrence    v.    Farmers'    Loan,    etc.,    Co., 

278. 
Lawrence  v.   French,   153. 
Lawrence  f.   Hebbard,  296. 
Lawrence  v.  Knap,  251. 
Lawrence  v.  Lawrence,  45,  497. 
I^wrence  r.   Senter,  624. 
Lawrence  v.   Stratton,  250.  518. 
Lawrence  v.  Ward,  234. 
Lawson   v.    Morrison,    649. 
Lawton  v.  Lawton,  16. 
Lay  t'.    Neville,   596. 
Layman  v.  Throp,  171. 
Layson  r.  Grange,  123. 
Layton  v.  Butler,  113. 
Lea  T'.   Polk  Co.  Copper  Co.,  494,  586. 
Lea  r.   Stone,  262. 
Lea  V.  Woods,  89. 
Leach  v.   Beattie,   584. 
Leach  v.  Leach,  868. 
Leader  v.  Homewood,  18. 
Leak  v.  Richmond  Co.,  408. 
Leak  v.  Robinson,  399. 
Leake  r.  King,  127. 
Leake  v.    Watson,   321. 
Lear  v.  Leggett,  140. 
Learned  v.  Cutter,  85,   668. 
Learned  v.  Foster,  279. 
Learned  v.  Ogden,  68,  320. 
I  earned  v.   Reiley,   574. 
I  either  V.  Gray,  45,  321. 
I  eavett   v.    Leavett,    541. 
T  -nvitt  V.  Beime,  870. 
Lcavitt  V.   Fletcher,  148. 

Ixxx 


Leavitt  t:  Lampray,  85. 

Leavitt    v.    Pell,    411. 

Leavitt   v.    Pratt,    258. 

Leaycraft  r.  Simmons,  633. 

Lebanon  Min.  Co.  7:  Rogers,  494. 

Le   Barren  v.    Babcock,   191. 

Lecompte   v.    Wash,    98. 

Le  Comte  v.  Carson,  510. 

Lecoter  v.   De   Corse,   586. 

Ledger  v.    Doyle,   585. 

Lcdoux    V.    Black,    521. 

Ledyard  v.   Butler,   239. 

Ledyard  v.   Ten    Eyck,   598. 

Lee  V.   Baumgardner,  5. 

Lee  V.   Brouder,  367. 

Ltc   V.   Campbell,    121. 

Lee   V.   Clark,   251,   204. 

Lee  V.  Dean,  C25. 

Lee  &  IJ ester  v.   Hughes,   125. 

Lee  V.   Miller,   123. 

Lee   V.   Netherton,    158. 

Lee  V.  Ogden,  586. 

Lee  V.  Pembroke   Iron   Co.,   444. 

Lee   V.   Tower,   399. 

Lee  V.  Tucker,  609. 

Lee  V.  Wysong,  195. 

Leech  z'.   Karthans,  235. 

I.e-ds  V.  Cameron,  236. 

Leeds  v.  Gifford,  262. 

'.teds  V.  Wakefield,  410,  414. 

I.ecper  v.   Baker,    495. 

1. coper  V.   Neagle,   31. 

'  CCS  f.   Moslev,   322. 

'  (et  V.  Armbruster,  239,  253. 

Let  V.  McMaster,   278. 

'  c    Fevre   !■.    Amonson.    522. 

l.efevre   i:    Murdock,    558. 

Leffler  v.   Armstrong,   282. 

L.  fTord  V.  Garnell,  272. 

I.cgard  V.   Hodges,   582. 

Less  I'.    Legg,   198. 

Leggett  V.   Bullock,  260,   585. 

Leggett  V.   Firth,   298. 

Leggett   V.    Perkins,    73,    349. 

Leggett  V.   Steele,   105. 

Le??win  v.  McRee,   301. 

Lehigh  Valley  Co.  v.  Traction  Co.,  462. 

Lehigh   Vally  R.'  Co.  v.   McFarlan,  429. 

Lehman  tj.  Dreyfus,  139. 

Lehmann  v.  Rothbarth,  368. 

Lehndorf   v.    Cope,    39,    45. 

Leigh   V.   Taylor,    11. 

Leighton  v.  Leighton,  68. 

Leighton   v.   Preston,   244. 

Leishman    i'.    White,    154. 

Leiter    v.    Pike,    134. 

Leith  V.  Irvine,  234. 

Leland  t'.    Loring,    276. 

Leman   v.    Best,    18. 

Lcman    v.    Whitley,   367. 

Lemmon   v.    Hartrook,   610. 

Lemon    v.    Graham,    30. 

Lenfers  v.   Henke,  64,  105. 

Lennig  v.  Ocean  City  Assn.,  433,  601. 

Lenoir  7'.   Valley   River   Min.   Co.,   186. 

Lrnz  V.   Prescott,  301. 

Leonard  v.   Armstrong,  146. 

Leonard  v.  Binford.  247,  272. 

Leonard   v.   Hart,    498. 

Leonard  v.   Leonard,   105,   556. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.l 


Leonard  v.  Williard,  10. 
Leonard's  Lessee  v.   Diamond,  382. 
Lepps  V.   Lee,    299,   301. 
Leron   v.    Wilmarth,    566. 
Lesley  v.   Randolph,  164. 
Leslie  v.    Marshall,   297,   387. 
Lester   v.    Citizens    Sav.    Bank,   27 
Lester   v.    Garland,    370. 
Lethbridge  v.  Myttors,  616. 
Lethienllier  r.  Tracy,  308. 
Lethienllier  r.  Sledge,  298. 
Levengood  v.  Hopple,  204. 
Leverett  v.   Bullard,   594. 
Levering    v.    Langley,    156. 
Levins  v.    Rovezno,    121. 
Levison  v.   Abrahams,   127. 
Levy   V.    Brush,    368. 
Levy  V.   Levy,   641. 
Lewis  V.  Baird  377,  512. 
Lewis  v.   Barnhardt,  45. 
Lewis  V.   Beattie,  601. 
Lewis  V.   Brown,  510. 
Lewis   V.    Campbell,   625.   . 
Lewis  r.   Caperton's   Exr.,  217. 
Lewis  V.  Coffee  Co.,  599. 
Lewis  t'.  Coxe,  85. 
Lewis   V.    Ely,    626. 
Lewis  V.   Hawkins,   498, 
Lewis  V.  James,  116. 
Lewis  V.   Jones,    16. 
Lewis  V.    Kirk,   264. 
Lewis  V.  Lewis,  202,  633. 
Lewis  V.   Manerman,   127. 
Lewis  V.   Meserve,  92. 
Lewis  V.  Paign,  154. 
Lewis  r:   Payne,  554. 
Lewis  r.    Pitman,   298,   408. 
Lewis  V.   Ridge,  147. 
Lewis  V.  Waters,  308. 
Libbey  v.  Davis,   121. 
Libbey   v.   Tufts,   285. 
Libby   v.   Hutchinson,   616. 
Licata  v.  De  Corte,  582. 
Liddon  7'.  Hodnett,  497. 
Lieman  v.   Summerfield,  408. 
Life  Ins.  Co.  v.  Patterson,  432. 
Life  Ins.  Co.  v.  Smith,  240. 
Liggins  V.    Inge,   435,   444. 
Lightcap  V.  Bradley,  240. 
Lightney   v.    Mooney,   582,    685. 
Lillard  v.    Rucker,   580,   583. 
Liilibridge  v.  Coal  Co.,  4. 
Lily  V.   Palmer,  284. 
Limerick  v.   Voorhis,  247. 
Lincoln  v.  Aldrich,  401,  471. 
Lincoln   v.    Emerson,   247. 
Lincoln  v.   Purcell,  505. 
Lind    V.    Hook,    562. 
Linden   v.    Hepburn,   139. 
Linden  Oil  Co.  v.  Jennings,  146. 
Lindley  v.  Crombie,   564. 
Lindley    v.    Dakin,    615. 
Lindley  v.  Martindale,  586. 
Lindsay  v.   Bates,   219. 
Lindsay  v.  Lindsay,  201,  651, 
Lindsey  v.   Leighton,   146. 
Lindsey  v.  Miller,  505,  521. 
Lindsey  v.  Veasy,  614. 
Line    v.     Stevenson,     623. 
Lineberger  v.  Tidwell,  574. 


Lingan  v.  Carroll,  642, 

Linn   v.    Downing,    420. 

Linsee  v.  Mixer,  210. 

Linthieum   v.   Coan,    489. 

Linton  v,  Moorhead,   558,   570. 

Linville   v.    Golaing,   548. 

Linville  v.  Savage,  218. 

Linwine   v.    Burtiss,    397. 

Lippett  V.  Kelly,  590,  605. 

Lisburne  v.    Davies,   157. 

Lisk   V.    Smith,    85. 

Liskey  v.  Snyder,  235. 

List  V.   Rodney,   44. 

Lister  v.  Turner,  216. 

Litchfield  v.   Ferguson,   317,   598. 

Lithy  V.  Wolstenholme,  376. 

Little  V.    Baker,   123. 

Littel  et  al.  v.  Lake,  482. 

Little    V.    Gibson,    577. 

Little  V.  Giles,  31,  204. 

Little  V.   Herndon,  632. 

Little  V.  Macadaras,  146. 

Little    V.    Mequirer,    494. 

Little  V.  Pearson,  166. 

Littleton    v.    Richardson,    624. 

Littleworth  v.  Davis,  233. 

Lively  v.  Rice,  617,  622. 

Livingston   v.    Livingston,    367. 

Livingston  v.  Moingona   Coal  Co.,  448. 

Livingstone  v.  Murphy,  367. 

Livingston  v.   Peru  Iron  Co.,  569. 

Livingston  v.   Potts,   156. 

Livingstone  v.  Reynolds,  64,  68. 

Livingston  v.    Tanner,    170. 

Livingstone  v.   Ten   Broeck,   426 

Livingston    v.    Thomkins,    209. 

Llwellyn  v.   Jersey,   694. 

Lloyd  V.    Kehr,   86. 

Lloyd  V.   Cozens,  139,  168. 

Lloyd  V.   Gordon,  186,  193. 

Lloyd  V.   Lloyd,  122,  306. 

Lloyd    V.    Mitchell,    204. 

Lloyd  V.  Oates,  671. 

Lloyd  V.  Passingham,  273. 

Lloyd  V.   Reed,  367. 

Lloyd  V.    Spillett,   329. 

Lloyd's  Lessees  v.  Taylor,  558. 

Lobdell  V.  Hayes,  87. 

Lobdell  V.  Ray,  253. 

Lochenour  v.  Lochenour,  367. 

Lock  V.   Fulford,  284. 

Locke  V.  Locke,  640. 

Locke  V.  Palmer,  235. 

Locke    V.    Rowell,    121. 

Locke  V.    Smith,    656. 

Locke  V.  Whitney,  604. 

Lockhardt  v.  Hardy,  288. 

LockmaA  v.   Hobbs.   640. 

Lockwood  V.  Benedict,  273. 

Lockwood  t'.  Jessup,  471. 

Lockwood  V.   Lockwood,   167. 

Lodge  V.   Bamett,  603. 

Lodge  V.  Tyseley,  583. 

Lodge  V.  White,  143. 

Loe  V.    Fonnereau,  387. 

Lofsky  V.  Manjer,  245. 

Lofton  V.  Murchison,  638. 

Lofton  V.   Witboard,   367. 

Logan  V.   Anderson,   156. 

Logan  V.    Bean's   Admr.,    476. 

Ixxxi 


TABLE   OP   CASES   CITED. 


{References  are  to  Sections.] 


LoRan  r.  Fitxgcrald,  497. 

LoKaii    f.    Herron,    104. 

Lo([an   ('.   \'anars<iall,  566. 

LuKan    f.    Walker,    307. 

Losue    :.    Hatcinan,    4'>0. 

Lohnicycr   f.    Uurbiu,   ;.'73. 

Loiiiax   V.    Bird,   STiS. 

Lombard  t.    Willis.   3(il. 

Lonicl   :-.    W'ilsun,   615. 

Londun   f.    Bynum,   683. 

London   t.    W'arlield,   08. 

Lone  Acre  Oil  Co.  t .  Swayn,  64. 

Lone   f.    Itruct,    H:i. 

Long   V.   Cokt-rn,   l.'>. 

Long  ?'.    Fitzsinuiions,   60. 

Long    f.    Hewitt,    417. 

Long   Island   Loan  Co.  t:  Long  Island  R. 

R.  Co.,  234. 
Long   v.    Long,   76,   480. 
Long   V.    Mast,   498. 
Long  r.   McUow,  186. 
Long  i:   Molcr,  017. 
Long   r.    Paul,   30,    204. 
Long  t'.  Ramsey,  573. 
Long   f.   W'atkinson,   642. 
Long  V.   Walker,  125. 
Long  V.   White,   72. 
Longendyke  v.   Anderson,   428. 
Longfellow  f.   Longfellow,   157. 
Longhran  v.   Ross,  619. 
Longley   v.    Longley,    366. 
Longlois   V.    People,    533. 
Ixingwortli   V.    Butler,   277. 
Loomer    v.    Loomer,    298. 
Loomer  f.   Wheelwright,  242. 
Loomis    V.    Bedel,    622. 
Loomis  I'.   O'Neal,    160. 
Loomis   V.    Pingree,    576. 
Loomis  V.  Stuyvesant,  273. 
Loosemoore  v.  Tiverton,  3. 
Lonquet   v.    Scawen,   224. 
Lord  V.    Bourne,   473. 
Lord    J'.    Morris,    236. 
Loreng   v.   Carnes,   299, 
Loring  V.   Cooke,   262. 
Loring   v.    Eliott,    305. 
Loring  v.  Groomcr,  123. 
Loring  v.   Marsh,   641. 
Lorick  r.  McCreery,  30. 
Loring  v.  Palmer,  374. 
Lormore  v.  Campbell,  566. 
Lorrimer  v.  Lewis,  520. 
Losey  v.    Simpson,   582. 
L.  T.  L.  &  T.  Co.  V.  L.  T.  &  N.  R.  Co., 

272. 
Loubat  V.  Nourse,  184. 
Loud  V.   Brigham,  577. 
Loud    V.    Darling,    559. 
Loud  V.  Lane,  258. 

Louisville  &  N.  R.  Co.  v.  Philyan,  504. 
Louisville  &  N.  R.  Co.  v.  State,  2,  454. 
Louisville   Bkg  Co.  7'.   Leonard,   126,  236. 
Louisville  R.   R.  v.  Covington,  435. 
Louval)   I'.    Gridley,    503. 
Love  V.  Blaun,  195,  299. 
Love  V.   Buchanan,  640. 
Love   V.    Turner,    497. 
Love  V.  White,   597. 
Lovejoy  r.   Richardson,  669. 
Lovell    f.    Leiand,    276. 

Ixxxii 


Loveman  v.  Taylor,   376. 

Lovcring   v.   Elliott,  306. 

Lovcring  v.   Leering,   143. 

Low    V.    Henry,    231. 

Low  V.   Pew,   238. 

Low    V.    Purdy,    278. 

Lowden  v.  Morris,  529. 

Loudcrniilk  v.   Corpening,   126. 

Lowe  V.  Emerson,   167. 

Lowe   V.   Maccubben,   479. 

Lowell    V.    Middlesex,    220. 

Lowery  v.    Reef,    55. 

Lowndes   v.    Chisholm,   269. 

Lowrie  v.    Kyland,   31. 

Lowther   f.    Carlton,    582. 

Loy   V.    Kennedy,    633. 

Loyd   V.    Ostcs,    673. 

Lozear  v.  Porter,  85. 

Lozier  v.  N.   Y.   Cent.   R.   R.,  601. 

Luane    v.    Wilson,    511. 

Lubbock  V.   McCann,    123. 

Lucas  V.   Coulter,   146. 

Lucas  V.    Darren,   213. 

Lucas  V.  James,  631. 

Lucas  V.    Sawyer,  85,   110. 

Lucas  V.  Whitacre,  85. 

Luce  V.   Carley,   597. 

Luce  V.   Stubbs,   109. 

Luckey  v.   Gannon,   248. 

Luddington  v.   Kime,  310,  392. 

I-udington   i'.   Garloch,   168. 

Ludington  v.   Low,  253. 

Ludlow   V.    N.    Y.   &   Harlem    R.    R.    Co., 

202. 
Luke   V.    Marshall,    642. 
Lund   V.    Lund,   222,   231. 
Lund  V.   Parker,   497. 
Lund  V.    Woods,   85. 
Lunsford  v.   La  Motte  Lead  Co.,  572. 
Lunsford   v.    Turner,    157. 
Lunt  V.  Holland,   597. 
Luntz    V.    Greve,    75. 
Luper  V.  Wertz,  633. 
Lupton  V.  Lupton,  2S8. 
Luquire   v.   Lee,   382. 
Lush    V.   Druse,    592. 
Lutes   V.    Reed,    578. 
Luther  7'.    Winnisimett   Co.,   445. 
Lux  V.   Hoff,    181. 
Luxford  7'.   Cheeke,  308,  309. 
Lyerly  v.   Wheeler,  576. 
Lyie  V.    Burke,   373,    377. 
Lyie  V.    Ducomb,   263. 
LyIe  V.   Richards,   20,   42. 
Lyies  V.   Digge,   321. 
Lyies   V.    Lyles,    191. 
Lym   V.    Sanford,    273. 
Lyman  v.   Arnold,   590. 
Lyman   v.    Lyman,   285. 
Lynch  v.  Allen,  5,   597. 
Lynch  v.  Clements,  374.  ' 

Lynch   v.    Doran,    126.  , 

Lynch   v.    Herrig,   367. 
Lynch  v.   Jackson,   231. 
Lynch  v.  Livingstone,  574. 
Lynch  v.  Lynch,  197. 

Lynde  v.   Hough,   139.  i 

Lynde  v.   McGregor,   75.  i 

Lynde  v.    Rowe,   15,   59. 
Lyon   V.   Baker,  640. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Lyon  V.   Bauerman,   146,   161. 
Lyon    V.    Kaiii,    471. 
Lyon  V.  Mcllvaine,  242. 
Lyon   V.    Reed,    156. 
Lyon   V.    Register,    195. 
Lyon   V.   Smith,   633. 
Lyons  v.    Van   Riper,   575. 
Lyster  v.    Dolland,    239. 
Lythe  v.  Beveridge,  631. 
Lytle  V.  Arkansas,  522. 

M 

Macavenny  v.   Ralph,  124. 

Mack  V.  Bensley,  447,  590. 

Mack  z:  Patchin,  144,  625. 

Mackentile  v.    Savoy,   594. 

Mackenzie  v.  Childers,  433. 

Mackey  v.    Collins,   619. 

Macklot  V.    Uubrenil,   492. 

Macknet  v.  Macknet,  296. 

Mackreth    z:    Symmons,    217,    220. 

Mackubin   v.   W'hetcroft,   148. 

Macomb  v.    Prentiss,   253. 

Macombe   v.    Miller,    393. 

Macomber  v.   Cambridge   Ins.    Co.,   248. 

Macombcr   v.   Godfrey,    444. 

Macy  i:   R.    R.   Co.,   68. 

Macy   V.   Williams,    373,   374. 

Madden  v.   Barnes,   217,   218. 

Madigan  v.   McCarthy,   16,   300. 

Madison     Am.      Church     i:     Oliver     St. 

Church,    492. 
Madison  City  v.  Hildreth,  596. 
Madison  v.  Madison,  4. 
Magaw  V.  Field,  642. 
Magaw  V.  Lambert,  151. 
Magee  v.  Magce,  491,  492. 
Magee  i'.   Mellon,   100. 
Maggort  r.   Hansbarger,   151. 
Magill  V.  Hinsdale,  245. 
Magruder  ?•.   Eggleston,  272. 
Magruder  '•.  Offut,  273. 
Magruder  v.   Peter,   217. 
Magnasson  v.   Williams,   278. 
Magnusson  v.  Johnson,  231. 
Magoon    v.    Harris,    590. 
Maguire  v.   Bissell,   592. 
Maguire   v.    Sturtevant,    603. 
Magwood  I'.  Johnson,  348. 
Mahagan    v.    Mead,    285. 
Mahan  v.   Brown,   443. 
Mahoney  v.   Middleton,  584. 
Mahnken  Co.   v.    Pelletreon,  251. 
Main  V.  Feathers,  147,  149. 
Maine   v.    Ryder,    632. 
Mainwaring  v.   Beevor,   388. 
Mainwaring  v.  Jennison,   11. 
Mainwaring  v.  Templeman,  583. 
Major  V.   Lansley,   72,   348. 
Major  V.  Todd,  577. 
Major   V.    Watson,    596. 
Malcom    v.    Malcom,    397. 
Mallack  z:   Galton,   275. 
Malloney  i'.  Heron,  509. 
Malloney  v.  Horan,  97. 
Mallory  v.  Hitchcock,  242. 
Mallory   v.   Thomas,   380. 
Malloy  V.   Bowden,   493,   496. 
Malone  v.  Majors,   118. 


Malone   v.   McLaurin,   75. 

Mamer   z'.    Lussem,    448. 

Man  V.  City  of  Elgin,  511. 

Man   V.    Elkins,    257. 

Mann  v.  Best,  277,  278. 

Mann   v.    Edson,    91. 

Mann  v.   Kelscy,  126. 

Mann  v.  Pearson,  594,  604. 

Mann  v.   State,  260. 

Manchester  v.  Durfee,  321. 

Manchester   r.    Hoag,   441. 

Manchester   v.    Hough,   558. 

Mandell  v.  McClare,   87. 

Manderbach     v.     Bently     Orphan     Home, 

427. 
Manderschid  v.   Dubuque,   441. 
Manderson  v.  Lukens,  301,  393. 
Mandeville  v.   Welch,   213,   215. 
Mandlebaum  zf.  McDonnell,  298,  399. 
Manhatten  Co.  v.   Evertson,   97. 
Manhatten   Ins.  Co.  z:  Weill,   248. 
Manley  v.   Pettee,    193. 
Manlore    v.    Cant,    636. 
Manly    v.    Geason,    217. 
Manly   z:    Lakin,   631. 
Manly  v.  Slason,  217. 
Mannon   z:    Mannon,   119. 
Manning  v.    Elliott,    2G6. 
Manning  v.   Frazier,  217. 
Manning  v.  Hayden,  368. 
Manning  v.  Johnson,   556. 
Manning  v.  Kansas  &  T.  Coal  Co.,  502. 
Manning  v.    Laboree,   97. 
Manning    v.    Smith,    609. 
Manning  v.  Wasdale,  447. 
Mannisig  -'.    Markel,    253. 
Mannsell  v.   Hart,   66. 
Mansfield   v.    Mansfield,    569. 
Mansfield  z'.   Pembroke,   114. 
Maple   V.    Kussart,   510. 
Manton  v.   Blake,  600. 
Maple  V.    Stevenson,    497. 
Mara    v.    Pierce,    586.    ■   > 
Mapps   V.    Sharjie,   251. 
Marable   v.    Mayer,    573. 
Marble    v.    Lewis,    113. 
Marble  v.   Price,   493. 
Marburg  v.  Cole,   181. 
March    v.    Turner,    217. 
Marden   z'.   Chase,   543. 
Margolins  r.  Muldberg,  146. 
Markel    v.    Evans,    275. 
Markell  v.   Markell,   282. 
Marker  v.  Marker,  62,  67. 
Markham  v.   Guerant,   370. 
Markham   v.    Merrett,   86. 
Markham  v.    Porter,  '402. 
Markings  v.   Markings,    463. 
Markland  v.  Cramp,  147,  624. 
Marlatt    v.    Warwick,    368. 
Marlow   v.    Smith,   376. 
Marmouth  v.   Plimpton,   2. 
Marks  v.  Marks,  298. 
Marks  v.   Pell,   247. 
Marks  v.  Ryan,  18. 
Markwell   z'.   Markwcll,  227,  877. 
Marr  ?'.    Lewis,   290. 
Marsellis  v.   Thalheimer,   82. 
Marsh   v.   Austin,   237. 
Marsh  v.  Lee,  262. 

Ixxxiii 


TABLE   OF   CASES   CITED. 


[References  arc  to  Sections.] 


Marsh  p.  Losenby,  122. 

Marsh   f.    Pike.    a53. 

Marshall  r.   Applegate.   127. 

Marshall   f.    Cohen.    146. 

Marshall   f.    Conrad,    4(52. 

Marshall    f.    Corbett,    497,    596. 

Marshall    v.    Crchorc,    li»5. 

Marshall,  etc.,  School  r.   Iowa,  etc,  201. 

.Marshall  r.  Fisk,  548. 

Marshall   t:   Green,   503. 

Marshall   t.   Joy.  368. 

Marshall    t.    King.    301. 

Marshall   r.    Mellon,    64. 

Marshall   f.    Stt-phens,   73. 

Marshall    f.    Stewart,    230. 

Marston   v.    Marston,   276,   566. 

Martin   v.   Abbott,   85. 

Martin  r.  Allen,   172. 

Martin  v.  Almond,  560. 

Martin  r.    Baker,   614. 

Martin   r.    Ballou,    202,    203. 

Martin  r.  Cauble,   218. 

Martin  v.  Cowles,  624. 

Martin   v,   Crompe,    149. 

Martin    r.    Evansville,    598,    590. 

Martin   v.    Flowers,    569. 

Martin    v.    Franklin    Ins.    Co.,    248. 

Martin   f.    Funk,   361,   373. 

Martin   t:    Coble,   443. 

Martin   v.   Houghton,   468. 

Martin   v.   Jones,   34. 

Martin   r.   Judd,    495. 

Martin  f.   Knowlys,  190. 

Martin   v.   Martin,  97.    149. 

Martin   v.   McReynolds,   251,  274. 

Martin  f.   Nance,   597,  599. 

Martin   v.   Nowlin,   251. 
Martin    v.    O'Brien,    598. 
Martin  f.  O'Connor,   139. 

Martin   v.    Guattlebaum,    186,   580. 

Martin  i:    Reneker,  78,  82. 

Martin  t'.  Remington,  74. 

.Martin   :■.    Smart,    204. 

Martin    x:    Trail,    80. 

Martin  f.   Waddcll,   485,   519. 

Martindale  v.  Smith,  254. 

Martling  r.   Marlling,   576. 

Marvin  !•.   Brewster  Iron  Co.,  448. 

Marvin   v.    Elliott.   605. 

Marvin  v.  Prentice,  233,  266. 

Marvin    f.    Smith,    349. 

Mar\in  v.  Trumbell,   184. 

Marvin  v.  \'edder.   257. 

Marvin  t.   Prentice,  233,  266. 

Masich  r.   Shearer,  217. 

Mason  f.  Ammon,  640. 

Mason   v.    Bailey,    401. 

Mason  v.  Crowder,  505. 

Mason  r.  Dennison,   172. 

Mason  v.  Hill,   444. 

Mason  v.    Landeroth,   144,  153. 

Mason  v.   Mason,   97. 

Mason  v.  M.   E.  Church,  340,  641. 

Mason  v.   Moody,   228. 

Mason  v.  Payne,  285. 

Maston  v.  Stow,  155. 

Mason  v.  Trustees  Meth.  Ch.,  642. 

Massachusetts   Ins.   Co.  v.   Wilson,   157. 

Massay  v.  Davenport,  640. 

Massey  v.  Craine.  615. 

Ixxxiv 


Massey  v.  Goydet,   448. 
Massey   v.    Westcott,   583. 
Mast  f.   Raper,  217. 
Masters  v.   Pollie,   8. 
Masterson   v.    Harris.   574. 
Masury  v.  Southworth,   151. 
Matador   Co.   v.    Cooper,    566. 
Matesky   v.    Feldman,    586. 
Matheny   v.    F'erguson,   202,   204. 
Matheney   v.    Sand£ord,   233. 
Mather   v.    Boston,    598. 
Mather  v.  Chapman,  598. 
Mathew  v.    Daniainville,   228. 
Mathews  v.   Missouri    Pac.   Co.,   239. 
Mathewson  v.   Kilburn,   124. 
Mathis  V.   Stufflebeam,  367. 
Matley  v.   Long,   590. 
Mattock    V.    Brown,    30. 
Matteson  v.   Vaughn,  614. 
Matthews   v.    Coalter,    554. 
Matthews  v.    De  Mantel,  233. 
Matthews  v.  Duryea,  281. 
Matthews  v.   Hudson,  393 
Matthews  v.   Wallwyn,   226. 
^ilatthews  v.  Ward,   165,  493. 
Matthewson  v.   Smith,   87. 
Mattice    v.    Lord,    148. 
Mattison  v.  Mattison,  37. 
Mattocks  i:    Stearns,    69,   83. 
Matts  V.  Hawkins,   450. 
Mauldin    v.    Cox,    495. 
Maule  V.  Ashmead,   143. 
Maule   r.    Weaver,    142,    587. 
Maull  V.  Wilson,  66. 
Maundrell  r.   Maundrell,   404,   406. 
Maupin    v.    Emmons,    582,    586. 
Maurice  v.  Maurice,  301,  397.  fH 
Mauzy  v.   Mauzy,   30. 
Mavrick   v.    Grier,    275. 
Maverick   v.    Lewis,    131. 
Maxcy   v.    O'Connor,    521. 
Maxon  v.  Lane,  626. 
Maxwell  v.   Griswold,   560. 
Maxwell  v.    Newton,   272,   278. 
May  V.    Fletcher,   243. 
May  V.  Le  Clair,  547. 

May  V.    Lewis,   389. 

May   V.    McKeenon,    585. 

May    V.    Tillman,    92. 

Maybury  v.   Brien,  86. 

Mayer  v.   Kane,   367. 

Mayes   v.   Hendry,   217,   218. 

Mayer  v.  Hover.  640. 

Mayes  v.   Manning,   186.  ffl 

Mayham  v.  Coombs,  217,  583. 

Mayhew   v.   Hardisty,   139. 

Maynard  v.  Hunt,   254. 

Maynard  v.   May,   126. 

Maynard  v.   Maynard,    137,   577. 

Mayo   V.    Ah    Loy,    533. 

Mayo    V.    Feaster,    68. 

Mayo   V.    Fletcher,   59,    68. 

Mayo   V.    Foley,    533. 

Mayo  V.   Hinchman,   603. 

Mayo   V.   Judah.    234. 

Mayo  V.  NewhoflF,  451,  608. 

Mayor  v.  Chadwick,  446. 

Mayor  v.  De  Armas,  521. 

Mayor,  etc.,.  v.  Ohio  &  P.  R.  R.,  519. 

Mayor   v.    Galluchat,    384. 


TABLE    OF    CASES    CITED. 


[References  are  to  Sections.] 


Mayor   v.   Mabie,    143,    144. 

Mayor   v.   VVhitt,    157. 

Mays    V.    Beech,    404. 

Mays    V.    Hinckman,    603. 

May  wood  v.   Logan,   146. 

McAfee  v.    Arline,    605. 

McAfee   v.    Bettis,    121. 

McAfee    V.    Keirn,    522. 

McMester,   v.   Landers,    144,  618. 

iSIcMlister  v.   Devane,  428. 

McAllister  v.  McAllister,  641. 

McAlpine   v.    Burnette,    217. 

McAlpine   v.    Powell,    127. 

McAlpine  v.   Woodruff,   617. 

McAnaw   v.   Tiffin,    291. 

McAndrew   v.   Hollingsworth,    121,    125- 

McAninch    v.    Smith,    5>i4. 

McAnulty    v.    Ellison,    74. 

McArthur   v.    Frankiin,    85,    87. 

McArthur  f.    Scott,   40,  301. 

McAteer    v.    McAteer,    230. 

McBain    v.    Johnson,    489. 

McBrayer    v.    Roberts,    228. 

McBrayer  v.  Walker,  576. 

McBreen   v.    McBreen,    79. 

McBride    v.    Burns,    592,    025. 

McBride  v.  Wilkinson,  574. 

McBrier  v.  Marshall,   170. 

McBrown  v.   Ualton,  608. 

McCabe  v.   Bellows,  255,  258. 

McCabe  v.  Hunter,  572. 

McCabe  v.   Swap,   255,   258. 

McCall  V.   Lenox,   59,   276. 

McCall   V.   Mash,   279. 

McCall   V.    Neely,   20,   491. 

McCall  V.  Wells,   497. 

McCalla  v.  Bayne,  578. 

McCallister   v.    Willey,    366. 

McCalloch   V.  Maryland,   531. 

McCall's  Lessee  v.  Carpenter,  194. 

McCandless   v.    Warner,    374. 

McCann   r.    Oregon,    511. 

McCarley  v.  Tappah  County   Supervisors, 

572. 
McCarthy  v.  McCarthy,  498. 
McCarty   v.    Leggett,    614. 
McCarty   v.   Teller,    117. 
McCasker  v.  McEvery,  624. 
McCaslin  v.   The   State,   221. 
McCaugbn  v.  Young,  497. 
McCaul  V.  Smith,  230. 
McCauley   v.    Buckner,    321,   322. 
McCauley    v.    Grimes,    93. 
McCauley   v.    Smith,    229,    234. 
McCausIand   v.    Fleming,   605. 
McClain    v.   Gregg,   69. 
McClanahan  v.  Porter,   105,  113. 
McClellan   v.    Krall.    58. 
McClellan    v.    Larcher,    298. 
McClellan  v.  McClellan.  374. 
McClelland  v.   Pullis,   560. 
McClenahan   v.   New   York,    161. 
McClernan    v.    McClernan,    373. 
McClintock  v.   Fontaine,   187. 
McClintock    v.    Rogers,    596. 
McClung  V.    Ross,   186,    498. 
McClure  v.   Harris,  93. 
McClure  v.    Thistle's    Exr.,   585. 
McCIurg  V.  Phillipps,  228. 
McClurken  v.  Thompson,   234. 


McCollum    V.    McKensie,    647. 

McComber  v.  Mills,  256. 

McConnell  v.  Am.   Bronze  Co.,   435. 

McConnell  v.  Downs,  6-iT. 

McConnell  v.  Lemley,  161. 

McConnell    v.    Peirce,    148,    194. 

McCook   V.    Harp,    56. 

McCord    V.    Hames,   218. 

McCord    V.    McCord,    406. 

McCormic  v.  Leggett,  556. 

McCormick    v.    Bishop,    451. 

McCormick,    etc..    Machine    Co.    v.    Gates, 

204. 
McCormick   z:    Fitzmorris,   554. 
McCormick    v.    Grogan,    368. 
McCormick    v.    Hcrron,    515. 
McCormick  v.   McCormick,   59. 
McCormick  v.  McEUigott,  310. 
McCormick   v.  Silsby,   497. 
McCormick  v.  Taylor,  107. 
McCorry    v.    King's    Heirs,    80,    536. 
McCosker  v.   Brady,  382. 
McCown   V.    King,    329. 
McCoy   V.    Dickinson,   504.  * 

McCoy   V.    Galloway,    495. 
McCracken   v.    Hall,    18. 
McCrady    v.    Brisbane,    616. 
McCready  v.  Thompson,  443. 
McCreary  v.   Casey,   367. 
McCreary   v.    Everding,    495. 
McCreery   v.    Shaffer,    269,    290. 
McCritlis  V.   Thomas,   625. 
McCucker   v.    Goode,    201. 
McCue   V.   Gallagher,    367. 
McCulIa    V.     Beadlestor,     258.         ^ 
McCulloch    V.    Cowhed,   368. 
McCulloch  V.  Endaly,  582. 
McCullom   V.    Turpie,   285. 
McCuUough  V.    Ford,   367. 
McCully  V.   Smith,  85. 
McCumber  v.  Gilman,    269. 
McCurdy  v.  Alpha  Mining  Co.,  609. 
McCurdy  v.   Canning,  181. 
McCusper  7:  McEvey,  514,  582. 
McDaniel   v.    .Mien,   301. 
McDaniel   v.   McDaniel,   185. 
McDanicls  z:  Calvin,  263. 
McDaniels  v.   Cummings,   447. 
McDaniels   v.    Sommons,    558. 
McDermot  v.   French,  183. 
McDermott   v.    Sedgwick,    134. 
McDevitt    V.    Lambert,    168. 
McDill    V.    McDill,    571. 
McDonald  v.   Bank,   307. 
McDonald    v.    Black,    248. 
McDonald   v.   Crandall,    121. 
McDonald  v.    Dunbar,   322,  640. 
McDonald    v.    Eggleston,    653. 
McDonald  v.  Hanlon,   167. 
McDonald   v.   May,   155. 
McDonald    v.    McDonald,    86. 
McDonald    v.    McKinty,    8. 
McDoncIl    V.    Pope,    156. 
McDonough   v.   O'Neil,   368. 
McDonough    v.    Squire,   233. 
McDowell   V.   Adams,   477. 
McDowell  V.  Morgan,  521. 
McDowell  V.  Morotts,  248. 
McDowell  V.   Simpson,   134,  164. 
McDuflfie  V.   Clark,    562. 

Ixxxv 


TABLE   OF   CASES   CirEU 


[liefcicnces  are  to  Sections.] 


McEachin  f.  Stewart.  368. 

Mclllnioyne    f.    Cohen,    5U7. 

McKlroy  t.   llropks,   147,   U9. 

McElroy  f.   Hincr,   57U,  578. 

McKlroy   t.    McKlroy,   373. 

McEntire   f.    lUown,    Mi. 

McEvoy  f.   Leonard,  105. 

McEaildcn  t.  Allen,  15. 

McFarland  x\  Goodman,  126. 

Mc(.!an   t.    Marshall,   550. 

McC;ary  -.   Hastings,  617,  619. 

MoGee   t.    Hall,   3-4. 

McGcc   V.   McCanis,   031. 

McC;cc    t.    McGoc,    90. 

McGce   V.    I'ortcr,   03i. 

McGcorgc   f.    llolTman,    447. 

McGill   r.   Thorne,   233. 

McGinnis    f.    McGinnis,    49. 

McGiven   f.    Wheelock,   257. 

McGlaughlin  v.  Holman,  686. 

McGonigal    v.    Plummer,    218. 

McGorrisk   v.    Dwyer,    13,    15. 

McGovem    z:    Knox,    307. 

McGowan   i'.    Reed,    195. 

McGregor   t'.    Brown,    4,    60. 

McGregor  v.  Comstock,    42,   483. 

McGrilTis   f.   Thomas,    619. 

McGuflfey    f.    Finley,    274. 

McGuffey  v.  Humes,  625. 

.McGuire    f.    Grant,    448,    449. 

McGuire   v.   Joslyn,    140. 

McGuire   v.   McRann,   572. 

McHenry  v.    Cooper,   286. 

Mcllhaney  v.   Shoemaker,  242. 

Mcllwani    v.    Scheibley,    95. 
McIIvaine  v.  Harris,  503. 

Mclntier  v.  Shaw,  229,  253. 

.Mcintosh    V.     Rector,    etc.,     St.     Phillips 

Church,    146. 
Mclntyre  v.  Agric.   Bank,  282. 
Mclntyre  v.  Costelle,   91. 
Mclntyre    v.    Mclntyre,    204. 
Mclntyre   v.    Whitfield,   243. 
Mclvcr    V.    Cherry,    273. 
Mclver   v.   Walker,    596. 
McKay  v.   Bloodgood,   569. 
McKary   v.   Gillman,    217. 
McKean  v.    Brown,   98. 
McKee  v.   Angelrodt,   139. 
McKee   v.   Chautauqua,   456. 
McKee  v.   Dail,   295. 
McKee  v.   Ellis,  562. 
McKee  r.  Hicks,  576. 
McKee  v.   Marshall,  562. 
McKee  r.    Pfout,   84. 
McKee  v.   Straub,   194. 
McKee   r.    West,    565. 
McKeegan  r.  Oniel,  653. 
McKcen   v.    Mitchell,    581. 
McKee's   Admrs.    v.    Means,    373. 
McKelvey  v.   McKelvey,  640. 
McKelway   v.    Seymour,   202,   207. 
McKenna  v.  Trust  Co.,  266. 
McKeon   v.  Whitney,   139. 
McKenzie  v.   Elliott,  434. 
McKenzie   v.    Lexing^ton,    166. 
McKenzie   v.    Murphy,    122. 
McKey  v.  Welch,  17,  593. 
McKinley   v.    Peters,    189. 
McKinlcy  v.   Smith,  690. 

Ixxxvi 


McKilkank   ?'.    Burlington,   166. 

McKinncy    v.    Moore,    195. 

McKinney  v.   Reader,  156. 

McKinney   v.    Rhoades,   578. 

McKinney   v.    Settles,    567. 

McKinstry    v.    Merwin,    262, 

McKirchcr   v.   Hawley,  245. 

McKnight   v.    Bell,    193. 

McKnight  v.   Winner,   282. 

McLain   r.    Garrison,    631. 

McLain  '•.   Thompson,  217. 

McLanahan    v.    Reeside,    684. 

McLane   7:    Pascal,    123. 

McLarren  v.    Brewer,   368. 

McLarren   v.   Spalding,   152. 

McLaughlin   v.   Acorn,   269,   272. 

McLaughlin    v.    Curtis,    255. 

McLaughlin   v.  Johnson,    14. 

McLaughlin  v.  Powell,  3. 

McLaughlin  v.   Rice,  181,  183. 

McLaughlin    v.    Shepard,    229. 

McLean    v.    Barnard,    634. 

McLean  v.   Bover,   59. 

McLean    v.    McDonald,    298. 

McLean   v.    McLean,    217. 

McLean  v.    Nicoll,   134. 

McLean   v.   River,   248. 

McLean   v.    Smith,   495,   497. 

McLean    v.   Swanton,    483. 

McLean    v.    Towle,    284. 

McLean    v.    Wallace,    217. 

McLean  !■.   Wunder,  140,   151. 

McLeery   v.    McLeery,   115. 

McLellan    v.    Jenniss,    190. 

McLemore   v.    Carter,    368. 

McLeran  v.  Benton,   163. 

McLorley   v.    Larissa,    269. 

McLory    v.    Arnett,    123. 

McMahan   v.    Bowe,    559. 

McMahon   v.    Burchell,    191. 

McMichel  v.    McMichel,  34. 

McMillan   z:    Bissell,   229,   233. 

McMillan    v.    Gambill,    494. 

McMillan    v.  .Watt.    448. 

McMurray  v.   Investment  Co.,  205. 

McMurray    v.    McMurray,    374. 

McNair    v.    Funt,    492. 

McXally    t'.    Connolly,    16. 

McN'aughton  v.   McXaughton,   648. 

McN'aughten    v.    Partridge,    569. 

McXear   v.   McComber,   592. 

McNeely  z:  Langdon,   504. 

McNeely  z:   Oil    Co.,   558. 

McXeely   v.    Rucker,    574. 

McNeill    V.    Cage,    217. 

McNeil  V.  Kendall,  139. 

McNemor  v.  Cohn,  570. 

McNish   V.  Guerard,  376. 

McNoble   z>.   Justiniano,   495. 

McNulty  V.   Cooper,   373. 

McPeck's  Heirs  v.  Graham's  Heirs,  515. 

McPheeters   v.    Wright,    180. 

McPherson    v.    Cox,   376. 

McPherson    v.    Hayward,    233. 

McPherson    v.    Housel,    273. 

McPhillipps  V.   Fitzgerald,   178. 

McQueen  v.   Fletcher,   496. 

McQuesten    v.    Atty.    Gen.,    662. 

McQuiddy  v.   Ware,   498. 

McQuie  V.   Rag,   228. 


TABLE   OF    CASES    CITED. 


[References  are  to  Sections.] 


McQuinn  v.    McQuinn,   98. 

McKaven    f.    McGuire,    5S3. 

McRea  v.   Central    Xational    Bank,    13. 

McRees  Admr.    -.   Means,   298,   385. 

McRoberts   v.   Washburn,    454,   456. 

McShane  v.  Main,   590. 

McSimmons  z\  Martin,  217. 

McVay  v.    Bloodgood,   251. 

McV'ey    v.    Quality,    368. 

McWatty  v.   Jefferson   Co.,    125. 

McVVharton    t.    O'Neal,    637,    647. 

McVV'hinn   v.    Martin,    365. 

McVVilliams  r.    Bones,   125. 

McVVillianis    v.    Morgan,    509. 

McVVilliams    f.    Xiselcy,    33,    204. 

Meacham    r.    Sternes,    384. 

Mead   v.   Maben,    301. 

Mead  v.    McLaughlin,   278. 

Meade    v.    Leffingwell,    493. 

Meader    v.    Meader,    125. 

Meador  v.   Meador,  216. 

Mebane    v.    Womack,    642.         _m 

Mechanic's    Bk.    v.    Bk.    of   Nn%ara,   251. 

Mechan.    Ins.   Co.   v.   Scott,   131. 

Medeoris    v.    Gwanberry,    560. 

Medical    College  of   New   York  v.    N.   Y. 

University,    206. 
Medmer  v.  Medmer,  367. 
Medeoris  t'.  Gwanberry,  560. 
Medsker  v.   Swaney,  279. 
Meech   v.    Fowler,    576. 
Meecham   v.    Bunting,    70. 
Meeker   v.    Warren,   228. 
Meeker   v.    Wright,    181. 
MefTert  v.   Dyer,   7. 
Megargel  v.   Saul,  217. 
Meigs    r.    Dibble,    123. 
Meley  v.    Collins,    264. 
Mellichamp   v.   Mellichamp,   543. 
Melling   V.    Leak,    165. 
Mellis   V.    Lathrop,    149. 
Mellon  v.   Lemmon,  230. 
Mellon   V.    Whipple,   253. 
Mels  V.   Babst   Brew.   Co.,  66. 
Melvin   v.    Proprietors,    69,    601. 
Memmert  v.   McKean,   619. 
Menage  v.   Burke,   562. 
Mende    v.    Dclaire,    228. 
Mendenhall    v.    Hall,    273. 
Menley  v.  Zeigler,  573. 
Menter  v.   Durham,   187. 
Meramec  v.   Caldwell,  84. 
Mercantile  Bk.  v.  Ballard,  301,  810, 
Mercantile  Trust  Co.  v.  Brown,  301. 
Mercer  v.  McPherson,  266. 
Mercer   v.    Mercer,    566. 
Mercer  v.    Seldon,    80. 
Merchants   Bk.   v.   Calvin,   495. 
Merchants    Bank   v.    Ronttell,    149. 
Merchants  Bk.  v.  Thomson,  273. 
Meredith  v.   Andres,  186. 
Mercier  v.    Chase,  121. 
Merriam  r.   Barton,   246. 
Merriam  r.  Schmidt,  253,  285. 
Merrifield  v.  City  of  Worcester,  444. 
Merrifield   r.    Coblcigh,   202. 
Merrill  v.  Bullock.  172,  178. 
Merrill   r.    Emery,   118.   401. 
Merrill  v.   Frame.  623. 
Merrills  r.    Swift,   23«.   .''78. 
Merriman   r.    Lace6eld,    121. 


Merritt   v.    Bartholick,    250. 

Merritt   x:    Bemkerhoif,    444. 

Merritt  f.    Harris,   207. 

Merritt   r.    Hosmer,    267. 

Merritt   i'.    Judd,    16. 

Merritt    f.    Morse,    624. 

Merritt  z:   Parker,   435. 

Merritt  i'.    Yates,    97,   uTl. 

Merry    v.    Hallett,    1. 

Merryman  z:  Cumberland  Paper  Co.,  186. 

Mersereau  i\  Camp,  195. 

Mershon  z:   Duer,   367. 

Mershon  z'.   Williams,   159. 

Messelback,    z'.    Norman,    577. 

Messie   z:    Frechede,    497. 

Messing  i'.   Messing,    28. 

Metcalf    V.    Cook,    73. 

Metcalf  z:    Putnam,   527,   590. 

Methodist   Church   z'.    Remington,   641. 

Methodist  Church  z\   Young,  37. 

Mettler   v.   Miller,    79. 

Meyer  z\   Campbell,    239. 

Meyer  v.    Schurbruck,    195. 

Meyer's   Guardian   z:   Meyers,   121. 

Mahoon   v.    Cain,    498. 

Miami   Ex.  Co.  z:   U.   S.    Bank,  234,  247. 

Michand    f.    Girod,    l79. 

Michigan,  etc.,  R.   R.  z:  Mellan,  308. 

Mickerson  f.   Buck,  633. 

Mickle    Z'.    Douglass,    5. 

Mickles   V.    Dillaye,    257. 

Mickles    z'.    Townsend,    257. 

Middlebrook  v.  Corwin,  65. 

Middlesex   Banking  Co.  z:   Field,   40,   211. 

Middlesex  v.  Thomas,  257. 

Middleton   v.    Findia,    562.   . 

Middleton    v.    Perry,    595. 

Middleton  z'.   Pritchard,   598. 

Midland    R.   Co.  v.   Checkley,   3. 

Midland    Ry.    Co.   v.    Fisher,   433,    626. 

Midland  Ry.   Co.   z:    Haunchwood   Co.,   3. 

Milay    v.    Milay,    63  1. 

Milburn  Wagon  Co.  z\  Kennedy,   127. 

Miles  V.   Fisher,    176. 

Miles    z\     King,     200. 

Miles    z:    Miles,    66. 

Milhan    z:    Sharp,    454. 

Millard  v.   McMullin,   498. 

Mill    Dam    Foundry   z\    Ilovey,    572. 

Milledge    Z'.    Lamar.    99. 

Millenberger    v.    Croyle,    558. 

Miller  v.  A.  &  S.  R.  Co.,  430. 

Miller    v.    Aldrich,    248. 

Miller  v.  Auseing,  233. 

Miller    r.    Atkinson,    641. 

Miller    r.    Auburn,    466. 

Miller   z:    Baker,    16,    58. 

Miller   v.    Bennett,    123. 

Miller    v.    Bentley,    604. 

Miller   r.    Beverly,    110. 

Miller  v.    Bingham,   348. 

Miller  v.    Blose's   Exr.,   367. 

Miller  v.  Board  of  Supervisors,  201,  611. 

Miller    v.    Boyless,    622,    624. 

Miller  i:    Butler,   368. 

Miller    r.    Carlisle,    640. 

Miller  v.    Cherry,   603. 

Miller  v.    Chittenden.    561.    641. 

Miller   v.    Curry.   269. 

Miller    v.    Dunn,    56-3. 

Miller   v.    Eiscle,    284. 

Ixxxvii 


TABLE  OP   CASES   CITED. 


[References  arc  to  Sections.] 


Miller   f.    Ewing,   505. 

.Miller   t'.    Fasler,   284. 

Miller    r.    Finegan,    V2i. 

Milicr   f.    Foster,   505. 

Miller    f.    Goodwin,     565. 

Miller   f.    Henderson,    253,   274. 

Milicr    f.    Lapbani,    428. 

Miilcr   f.    Levi,   211. 

.Miller    f.    Lincoln,    24fl. 

.Miller   f.    Macomb,   S*J7. 

Miller    r.    Mann,    2. 

Miller    r.    Miller,    186,    444. 

.Miller   f.   Mansfield,   576,   578. 

Milicr   f.    Myles,    495. 

Milicr  f.  Noonan,  626. 

Miller  f.   Pence,  85,  4U4. 

Miller    v.    Phillips,    647. 

Miller    v.    Ridgely,    170. 

Miller  v.   Rutherland,  251. 

Milicr   f.    Sharp,    275. 

Miller   j'.    Snowman,   69. 

Miller   r.    Stump,    87,    94. 

Miller    r.    Teachout,    641. 

Miller  f.   Texas,  etc.",    Ry.   Co.,   505,   511. 

Miller  f.   Tipton,   238. 

Miller  f.  Topcka  Land  Co.,  605. 

Miller  7:  Travers,  640. 

Milicr  r.   Warren,   158,   171. 

Milicr   f.    Wilson,    15. 

Miller's  Admr.  v.   Potterfield,   298,   408. 

Miller's  Exr.  v.  Simpson,   401. 

Millctt  t'.   Fowle,   595. 

Millctt    V.    Parker,    578. 

Millican   r.    Millican,    631. 

Milliken   r.    Bailey,   246. 

Millis   r.    Roof,    186. 

Millspauch  v.   McBride,  258. 

Millott    7:    Conrad,    149. 

.\Iill  River  r.  Smith,  2. 

Mills    V.    Allen,    665, 

Mills    V.    Catlin,    614. 

Mills  r.    Darling,    236. 

Mills    V.    Davison,    291. 

Mills  V.  Dennis,  272,  275. 

Mills    V.    Ewing,    512. 

Mills  z:  Goff,  168. 

Mills  V.  Gore,    576,   578. 

Mills  r.  Gray,  251. 

Mills   V.    Haines,    375. 

Mills    t:    Hobbs,    123. 

.Mills   V.    Lockwood,    527,    590. 

Mills  V.  Merryman,   149. 

Mills   V.    Mills,    235. 

Mills   V.    Millward,    645. 

Mills    V.    Norris,    388. 

Mills  t'.   Smith,   586. 

Mills  V.   Van   Voorhies.   94,   273. 

Millsap    t'.     Estes,     556. 

Millspaugji  V.  McBride,  242. 

Milner   v.    Ramsey,    221. 

Milroy   v.    Stockwcll,    274. 

Ntimms    r.    Ewing,    504. 

>'ims   f.   Mims,   273. 

Miner  V.   Bcckman,  269. 

Miner    v.    Clark,    624. 

Mineral   R.  &  M.  Co.  v.   Flaherty,  157. 

Minnesota  r.   St   Paul  R.  R.,  2. 

Minnesota    Deb.    Co.    v.    Dean,    301. 

Minor   V.    Hill,   274. 

>'inor  r.  Prcs.  of  Watchez,  529. 

Minor   v.    Rodgers,    378. 

Ixxxviii 


Minor  v.  Sharon,  161. 

Minor  v.  Wilson,   126. 

Minor's  Heirs  v.  New  Orleans,  289. 

Minot    V.    Brooks,    494. 

.Minshall    z:    Lloyd,    16. 

Minter  v.   Durham,    191. 

Mirick    r.    Hoppin,    245. 

Miss.,  etc.,   R.   R.  v.  Archibald,   444. 

Mitchell   V.    Burnham,    236,    582. 

Mitchell   V.    Bartlett,    245. 

Mitchell    v.    Bogan,    243,    265. 

Mitchell  V.   Campbell,   498. 

Mitchell    V.    Clark,    256. 

Mitchell    V.    Denson,    418. 

Mitchell   V.    Einstein,    601. 

Mitchell   V.    Fullington,    233. 

Mitchell  V.  Knapp,  298,   301. 

Mitchell    V.    Mayor,    448,    450. 

Mitchell   V.    Pirie,   653. 

Mitchell   V.    Ryan,    561,   578. 

Mitchell   ^    Seipel,    431. 

Mitchell    %    Sevier,    69. 

Mitchell   v.    Shortt,    576. 

Mitchell   V.    Simpson,   322. 

Mitchell    7'.    Warner,    616. 

Mitchell    V.    Walker,    640. 

Mitchell    V.    Weaver,    272. 

Mitchleson   v.    Smith,   290. 

Mix  V.  Hotchkiss,  248. 

Mixon    T.    Armstrong,     634. 

Mizell    V.    Burnett,    203. 

Moberly   v.    Trenton,    209. 

Mobile   Dock,    etc.,   Co.   v.    Kuder,   285. 

Moddox   V.    Bramlett,   2o4. 

Model    Loding    House    Ass'n    v.    City    o 

Boston,   242. 
Modlin    V.    Kennedy,    63. 
Moffatt    f.     Cook,    31. 
MofTatt   v.    Hardin,   253. 
Moffatt   V.    Strong,    401. 
Mogg   V.    Mogg,    388,   638. 
Mohr  V.   Tulip,   556. 
MoUineaux    v.    Powell,    68. 
Monk   V.    City    of    Wilmington,    490,    498. 
Montague  7'.   Dawes,  277,   278. 
Montague    v.    Dent,    16. 
Montague    i'.    Gay,    149. 
Montague    t.    Hayes,    374. 
Monteflore  v.   Browne,   410,   584. 
Mont  ford    v.    Cadogan,    377. 
Montford   j'.    Deffenbacker,    408. 
Montgomery    v.    Bruere,    92. 
Montgomery  i'.  Chadwick,  246. 
Montgomery  v.  Co.  Com.,  159. 
Montgomery  v.  Craig,  158. 
Montgomery    v.    Montgomery,    321. 
Montgomery  i'.    Sturdivant,   609. 
Monypenny   7\    Denng,    312. 
Moody   r.   King,    78. 
Mooers    v.    White,    650. 
Moon   V.   Jennings,    187. 
Mooney   v.    Maas,    273,    275. 
Moore   v.    Abemathy,    479,    556. 
Moore  v.   Beasom,   242,   255. 
Moore  v.  Boogin,  244. 
Moore  v.   Boyd,   164,   173. 
Moore  7'.   Cable,   246,  247. 
Moore  v.  Cornell,  241. 
Moore    i'.    Crump,    368. 
Moore    v.    Darby,    75. 
Moore  v.    Dick,   105.    ' 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Moore  v.  Ditnond,  321,  642. 
Moore   V.    Esty,    87,    92. 
Moore   v.    Farmer,    48fc. 
Moore  v.    Frost,   85. 
Moore  v.   Hasleton,   577. 
Moorehead  v.  Scovill,  552. 
Moore   v.    Howe,   399. 
Moore  v,   Hes,  81. 
Moore  v.  Lesseur,  572. 
Moore  v.   Littel,  321,   511. 
Moore   v.    Luce,    53. 
Moore   v.    Lyons,    297,    301. 
Moore  z\   Maudlebaum,   368. 
Moore   v.    Mansfield,    154. 
Moore    r.    Maxwell,    521. 
Moore  v.  Merrill,  624. 
Moore  v.   Miller,   135. 
Moore  v.  Mobley,  498. 
Moore  v.    New  York,   85,   102. 
Moore   7'.    Parker,   322,   385. 
Moore    v.    Pickett,    374. 
Moore   v.    Pitts,    140,    627. 
Moore  z>.    Rake,  397. 
Moore   r.    Rawson,    443. 
Moore   v.    Rollins,    94. 
Moore  i:   Shannon,   195. 
Moore  v.   Shultz,   343. 
Moore  v.  Shureteff,  284,  286. 
Moore   v.    Smith,    163. 
Moore  v.    Thompson,   495. 
Moore  v.   Thorp,   190. 
Moore  v.   Tisdale,   97. 
Moore   v.    Titman,    246. 
Moore  v.  Vail,   619,  624. 
Moore   v.    Vinten,   69. 
Moore  v.    Wail,   250,   274. 
Moore   v.    Weaver,    321. 
Moore   v.    Webber,    144. 
Moore  v.  Williams,   367. 
Moore   v.    Worthy,   218. 
Moorhead   v.    Scovel,    575. 
Moose    V.    Carson,    525. 
Moose   V.    Trimmier,    509. 
Mora  V.  Murphy,   509. 
Moran    v.    Bergen,    151. 
Moran  v.  Gardemeyer,  236,  272. 
Moran  v.  Hays,  374. 
Moran    v.    Lezotte,   604. 
Moran  v.   PelHfaut,  253. 
Moran  v.   Lomes,   76,  592. 
Mordecai   v.   Jones,   640. 
More  V.  Moore,  641. 
Moreau  v.  Detchemendy,  42. 
Moreau  v.   SaflFerons,   184. 
Morehall   v.    Corbett,   596. 
Morehead   v.    Watkins,    164. 
Morehouse  v.  Cotheal,  61,  398. 
Moreland   v.    Bemhart,   233. 
Morelock  v.   Barnard,  640. 
Moreton  v.  Harrison,  217. 
Morey  v.   Sohier,   648. 
Morgan   v.    Bissell,    136. 
Morgan  v.  Blatchley,  105. 
Morgan  v.  Dalton,  157,  168. 
Morgan   v.    Field,   238. 
Morgan  v.   Fisher's  Admr.,  888. 
Morgan   v.    Henderson,   618. 
Morgan    v.    Kline,    251. 
Morgan    v.    Larned,    512. 
Morgan  v.  Morgan,  79,  118. 
Morgan   v.    Plumb,   276. 


Morgan  v.   Reading,   597,   699. 

Morgan   v.    Smith,    87. 

Morgan   v.    Woodward,    243. 

Morgan    v-.    Wright,    87. 

Moriarty   v.    Ashworth,    265. 

Moriata    z:    McRea,    99. 

Moring  v.   Abies,    498. 

Morley   v.    Sanders,    54. 

Morrell    v.    Fisher,    592. 

Morrell  v.  Ingle,  495. 

Morrill    v.    Noyes,    238. 

Morrill    v.    Titcomb,    498. 

Morris    v.    Apperson,    157. 

Morris    v.    Henderson,    577. 

Morris  v.   Knight,   57. 

Morris  t.   McClary,  494. 

Morris   v.    Morris,    75. 

Morris    v.    Moulton,    126. 

Morris   v.    Nixon,    228,   234. 

Morris    i'.    Pate,    218. 

Morris  v.  Peck,   253. 

Morris    v.    Phelps,    625. 

Morris  v.   Potter,  393. 

Morris    v.    Sargent,    97. 

Morris   v.    Stepens,    561. 

Morris   v.    Vanwren,    554. 

Morris    v.    Wadsworth,    584. 

Morris  v.  Wheler,  273. 

Morris    Admr.    v.    Davis,    286. 

Morris    Canal   v.    Lewis,    510. 

Morris  Canal  v.   Lewis,  510. 

Morris  Supply  Co.  v.   McColgan,   583. 

Morrisett  z'.   Stevens,   321. 

Morrison    v.    Beirer,    373. 

Morrison    v.    Bowman,    569. 

Morrison  v.    Buckner,    245,   265. 

Morrison   v.    Campbell,    629. 

Morrison   v.    Chadwick,    154. 

Morrison  v.  Chapin,  495. 

Morrison    v.    Fletcher,    299. 

Morrison  v.   Jones,   228. 

Morrison   v.    Keen,    597. 

Morrison   v.   Kelly,   578. 

Morrison   v.    King,    432. 

Morrison     z'.     Kinstra,     373. 

Morrison  v.  Marquardt,   443. 

Morrison  v.   McArthur,   615. 

Morrison  v.    McDaniel,   122. 

Morrison   v.    Morrison,    575. 

Morrison   v.    Rassignol,    132. 

Morrison  v.  Schorr,  400. 

Morrison   v.    Wilson,    590. 

Morrow    v.    Willard,    601. 

Morse  v.  Aldrich,  147. 

Morse    v.    Byam,    278. 

Morse   v.    Carpenter,    562. 

Morse    v.    Churchill,    497. 

Morse  v.  Copeland,  435,  467, 

Morse  v.  Goddard,  163,  245. 

Morse    v.    Hayden,    202,    476. 

Morse    v.    Merritt,    245. 

Morse    v.    Morrell,    380. 

Morse  v.   Morse,   642. 

Morse    v.    Proper,    306. 

Morse  v.    Royal,    368. 

Morse    v.    Salisbury,    674. 

Morse   v.    Stockman,    195. 

Morton   v.    Barrett,   847. 

Morton  v.   Bradhern,   122. 

Morton   z:    Noble,    97. 

Morton  f.  Onion,  647. 

Ixxxix 


TABLE   OF   CASES   CITED. 


[Heferencea  are  to  HectionaJ] 


Morton   r.    Robards,    583. 

Motion  f.   Woods,   1(13,    167. 

Mo»ely  f.   Marshall,  04,  :.>88. 

Moses    f.    Johnson,    305,    380. 

Mo«cs   f.    St.    Louis   Sectional    Dock   Co., 

441. 
Moshcr   f.    Whitney,   638. 
Moshicr    t.     Meek,    218. 
Moshicr  f.    Reding,   135. 
Moss  t'.    Gallimore,   215. 
Moss   f.    Muss,   367. 
Moss   t.   Odell,    244. 
Moss   t.    Scott,    495. 
Moss    f.    Sheldon,    609. 
Mosser   v.    Mosser's    Exrs.,   637. 
Mosson   t'.    Creditors,   236. 
Mott   V.   Clark,    585. 
Mott    f.     Ens,     441. 
Mott   t.    Palmer,    615. 
Moulton    :'.     Robinson,    65. 
Moullon    ?•.    Trafton,    608. 
Mouncc  :-.   Hyars,  215. 
Mount   I'.    Suydam,    251. 
Mourat    f.    Seattle,    295. 
Mowry    f.    Wood,    216. 
Moyer    f.    Drummond,    122. 
Moyle  f.    Moyle,   64. 
Mudd  -'.   Mullican,  50. 
Mueller  f.   .\.    M.   St.   P.   Co.,   18. 
Muir   f.    Cross,    217. 
Mulany    f.    Mulany,    77. 
Mulford  V.   Peterson,  250. 
.Mullen   r.    Strieker,   443. 
Muller  f.    Boggs,    178. 
Muller   V.    Wadlington,    251. 
Muller  V.  Whittier,  269. 
Mulliken    r.    Mulliken,    221. 
Mullin   V.    Erwin,   504. 
Mulrooney  v.   Obear,    12,   607. 
Mulry    :■.     Norton,    488. 
Mumford   f.    Brown,    190. 
Mumford    f.    Whitney,    465. 
Mummy    f.    Johnston,    530. 
.Munch     f.     Shabel,     367. 
Mundy    :■.    Mundy,    645. 
Munday    f.    O'Neal,    7. 
Mungcr   f.    Casey,    235. 
Municipality    v.     Orleans     Cotton     Press, 

487. 
Munkwitz   :■.    Uhlig,   140. 
Munn    ■•.    Burgess,    279. 
Munn   r.    Worrall,   606,   608. 
Munneslyn  f.    Munneslyn,   84. 
Munoz    f.    Wilson,    578. 
Munro    V.    Collins,    298. 
Munroe    v.    Hall,    200,    204. 
Munroc  i-.   Merchant,   494. 
Munro   v.    Ward,    496. 
Munson    v.    Munson,    2.'i4.  ' 

Murdock  v.  Chapman,  238. 
Murdock    v.    Clark,    233,    210. 
Murdock    v.     Cox,    204. 
Murdock   v.    Gifford.    15. 
Murdock    v.    Gilchrist,     565. 
Murdock    ?■.    Hughes,    368. 
Murphy  V.   Rldg.   Co..  144. 
Murphy  r.   Calley,   234,  236. 
Murphy   r.    Century   Co.,    148. 
Murphy    -■.     Nathans,    367,    580. 
Murphy   f.    Nelson,    495. 
Murphy  v.   Parifay,  231. 
XC 


Murphy   v.    Peabody,    367. 

Murphy  i>.    Price,   618. 

Murphy  v.  Trigg,  233. 

Murphy  v.   Welch,  427. 

Murray   v.    Ballon,    582. 

Murray  v.  Bender,  12. 

Murray   v.    Gouvcncur,    500. 

Murray  r.   Hall,    177,   186. 

Murray    v.    Lyiburn,    368. 

Murray    v.    Murphy,    633. 

Murray    v.    Murray,    365. 

Murray   v.    Pannaci,    504. 

Murray  v.   Porter,   238. 

Murray    v.     Riley,    244. 

Murray  v.    Stair,   579. 

Murray  v.   Walker,   233. 

Murrell    v.    Jones,    249. 

Murry   v.    Harway,    148. 

Musgrove   v.    Bouscr,    581. 

Musgrove  v.   Kennell,  253. 

Musham  v.  Musham,  305,  308. 

Mushingum   Turnpike  i'.   Ward,   562. 

Musick   V.    Barney,    497. 

Muskett    V.    Hill,    468. 

Mussey  v.  Scott,   173,   509. 

Mustard    v.    Wohlford,    556. 

Mutual,    etc.,    Ins.    Co.    ?■.    Brown,    569. 

Mut.    Life    Ins.    Co.    i'.    Corey,   574. 

Mutual  Life  Ins.  Co.  v.  Dake,  259,  584. 

Mutual    Ins.    Co.    v.    Raleigh,    473. 

Mutual    Life    Ins.    Co.    v.    Shipman,    301, 

413. 
Mutual  L.  Ins.  Co.  v.   Smith,  276. 
Muzzey    v.     Davis,    441. 
Myar   v.    Snow,    310. 
Myer  v.   Hobbs,   448. 
Myers  v.  Adler,  204. 
Myers   v.    Bentz,    204. 
Myers    v.    Croft,    522. 
Myers    v.    Estell,    245. 
Myers  v.   Kingston   Coal   Co.,   130, 
Myers   v.    Ross,    586. 
Myers   v.    N'anderbilt,   631. 
Myers  v.  White,   226,   245. 
Mylar    v.    Hughes,    494. 
Mylin  v.  King,  187,  193. 
Myrick  v.    Hard,   640. 

TX 

Nailer  v.   Stanley,  285. 

Nalon    V.    Chambers,    30. 

Nance    v.     Nance,    367. 

Nannborf  v.  Schunlann,  410. 

Napier    v.     Bulwinkle,     446. 

Napier   v.    Howard,   388. 

Napper   v.    Sanders,   297,    308. 

Nash    V.    Clark,    525. 

Nat.   Bank  v.   Bank.  185. 

Nat.    Bank   v.    Shelton.    121. 

Nat.   Bond  Sec.  Co.  r.  Daskam,  662. 

Nat.   Exch.   Bank  v.   Anningham,    439. 

Nave   V.    Berry,    151. 

Nazareth    Inst.    v.    Lowe,    90. 

Neale  v.  Hagthorp,   269. 

Neale    v.    Reed,    248. 

Neal    V.    Speigle,    218. 

Naar    v.    Naar,    407. 

Needham  v.   Branson,  181. 

Needham  v.  Judson,   558,   605. 

Needles  v.   Martin,   641. 


TABLE   OF    CASES    CITED. 


[References  are  to  Sections.] 


Neff   V.    Turkic,    76. 

Negaunee    Iron    Co.    v.    Iron    Cliffe    Co., 

590. 
Neiderstein    v.    Cusick,    159. 
Neidig    v.    Eiffer,    277. 
Neil   V.    Neil,   633. 
Neill    V.    Morley,    556. 
Neilson    v.    Blight,    251. 
Neilson    v.    Iowa    Eastern    R.    Co.,    2. 
Neilson    v.    Lagow,    371. 
Neimcewitz   f.    Sohn,    236. 
Ncligh   V.    Mechenor,   238. 
Neltns   v.    Kennon,    275. 
Nelson    v.    Bown,    252,    284. 
Nelson  v.   Boyce,   263. 
Nelson   v.   Commercial   Bank,   121. 
Nelson  v.   Hall,   595. 
Nelson  v.  Iowa,  etc.,  R.  R.,  263. 
Nelson   v.    Loder,   258. 
Nelson  v.  Nelson,  642. 
Nelson  v.   Sims,   521. 
Nepeau  v.   Doe,   171. 
Nerhath  v.   Althouse,   157. 
Nesbit    V.    Brown,    626. 
Nesbit  V.   Hanway,  278. 
Nettleton   v.    Sikes,    4. 
Neumaier    v.    Vincent,    125. 
Neumeister   r.    Goddard,    595,   596. 
Neustacher  v.   Schmidt,   103. 
Neves  v.    Scott,   362,   373.      . 
Nevil    V.    Saunders,   347.  , 
Nevitt  V.    Bacon,   236. 
Newall    V.    Wright,    247. 
Newbold  v.    Ridgway,   113. 
Newburgh    Turnpike    Co.    v.  filler,    456. 
Newcolm    v.    Coulson,    3. 
Newcomb  t:   Bonham,  234. 
Newcomb  r.  Ramer,  160. 
Newell   V.   Hill,   587. 
Newell    V.    Wright,    248. 
New   England,  etc.,   Co.  v.  Ober,  574. 
New    England    Jewelry    Co.    v.    Merriam, 

242. 
Newerloon  v.  Riddell,  511. 
Newhall    z:    Bart,    229. 
Newhatl  v.   Five  Cents  Savings  Bank,  90, 

258. 
Newhall  v.  Ireson,  597. 
Newhall   v.    Pierce,    229. 
Newhall  v.  Sav.  Bkg.,  255. 
Newhall   v.    Wheeler,   497. 
Newill    V.    Newill.    388. 
New  Jersey   Zinc   &   Iron   Co.   v.   Morris, 

200. 
Newkirk  v.   Newkirk,  236. 
Newland  v.    Newland,   298. 
Newiands  i'.   Paynter,  583. 
Newlin    ?•.    Osborn,    576. 
Newlincy    v.    Lucas,    625. 
Newman  r.  Bank  of  Cal.,  186. 
Newman    v.    Chapman,    247,    274. 
Newman  t:  Drcifurst,  190. 
Newman    v.    French,    151. 
Newman   i'.   Jackson,   282. 
Newman    f.    RuttPr,    158. 
Newman   t'.   Samuels,  228. 
New    Orleans   v.    Riddell,    512,    514. 
Newson    v.    Clark,    041. 
Newson   v.    Pryor.   595,   696. 
Newton  v.   Clark,  633. 
Newton    f.    Cook,    54. 


Newton   v.    Harland,    172. 

Newton    v.    Howe    and    Drury,    178,    593. 

Newton   v.   Manwaring,    242. 

Newton  v.   Mayo,   498. 

Newton   v.    McKay,   243. 

Newton   v.   McLean,   217,    380. 

Newton    v.    Porter,    368. 

Newton    v.    Taylor,    368. 

New   Vienna   Bank  v.   Johnson,    562. 

New  York  Life  Ins.  Co.  v.  Aiken,  253. 

New  York  Life  Ins.  Co.  v.  Mayor,  87, 
90. 

New  York,  etc.,  R.  R.  Co.  v.  City  of 
Providence,   441. 

New  York  Store  Merc.  Co.  z'.  Thur- 
mond,   281. 

Nichol  V.  Thomas,  556. 

Nicholas    v.    Parezell,    122,    173. 

Nicholls  V.   Wentworth,   429. 

Nichols   V.    Allen,    366. 

Nichols  V.  Baxter,  248. 

Nichols  V.   Denny,   170,   354. 

Nichols    V.    Eaton,    370. 

Nichols    V.    Glover,    218, 

Nichols   V.    Levy,    370. 

Nichols  V.    Luce,    431. 

Nichols  V.   McCabe,  233. 

.\ichols    V.    Nichols,    127,    195. 

Nichols    V.    Otto,    279. 

Nichols  z'.   Park,   98. 

Nichols    V.    Rogerson,    429. 

Nichols    V.    Smith,    593. 

Nichols   V.    Williams,    166. 

Nicholson    v.    Bettle,    893. 

Nicholson    v.    Halsey,   379. 

Nicholson    v.    Wardsworth,    469. 

Nickell    V.    Tomlispn,    97. 

Nickell    V.    Tracey,    257. 

Nickerson   Z'.    Buck,   632. 

Nicoll  V.   N.  Y.  &  Erie  R.    R.,  30,  207. 

Niel   V.   Kinney,   217. 

Nightingale  v.    Burrell,   39.   298. 

Nightingale   v.    Hidden,    363,    609. 

Nightingale    v.    Withington,   556. 

Nigro   V.   Hotch,   16. 

Niles   V.    Davis,    498. 

Niles  V.  Harmon,  285. 

Niles  V.    Patch,   598. 

Nims   z'.    Palmer,    579. 

Nix  V.    Pfeifer,   487. 

Nixon   V.    Porter,    596. 

Nixon   V.  Walter,   598. 

Noble    V.    Bosworth,    606. 

Noble   V.    Burnett,    634. 

Noble   7'.    Butterworth,    13. 

Noble  V.  Cent.  R.  R.  Co.,  509. 

Noble  V.  Graham,  225. 

Noble  V.    111.   Cent.   R.   R.   Co.,  688. 

Noble  V.   Sylvester,   15. 

Nock   V.    Nock,    633. 

Noe  z:   Hern,    373. 

Noel    V.    Ewing,    85. 

Noel's  Admr.  v.   Noel's  Admr.,   480. 

Noffts    z:    Ross,    87. 

Nolte's    Appeal.    219. 

Noonan   t.    Isley.   514. 

Noonan  t.  Lee,  619. 

Norcross  z:  Griffiths,  597,  599. 

Norcross  v.   James,   626. 

Norfleet  v.  Cromwell,  626. 

Norman  r.   Wells,    147,   626. 

xci 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Norman  v.  Winch,  625. 

Norris   f.    Hall,    88. 

Norris    f.    Moody,    603. 

Norri«    r.    Morrill,    169. 

Norria   r.    Moulton,    133,    255. 

Norris  f.    Wilkinson,   213. 

North  :■.    Rogers,   217. 

Northatn   v.    Hurley,    438. 

Northampton   Bk.   v.    Balliett,   250. 

Northampton   Mills  r:   Ames,   243,   255. 

North  Carolina  R.   R.  i.  Wilson,  876. 

Nortbcut    f.    Slaughter,    99. 

Northcut    f.     VVhipp,    99. 

Northcutt  V.   Northcutt,  632. 

Northern  Trans.  Co.  of  Ohio  v.  Chicago, 

448. 
Northness  v.   Hillstead,   160. 
Northwestern     Fire    Ins.    Co.    v.    Lough, 

233. 
Northwestern   Land  Ass'n  v.   Grady,   368. 
Northwestern     Mut.     Fire     Ins.     Co.     v. 

Blankenship,   556. 
Northy   v.    Northy,    251. 
Norton    r.    Cooper,    267. 
Norton   v.    Leonard,    347,    390. 
Norton  v.   Lewis,   285. 
Norton  v.   Norton,   341,  371. 
Norton  v.  Tufts,   98. 
Norton  f.   Webb,   244. 
Norton  v.  Whitehead,  569. 
Norwich   Ins.   Co.  v.   Boomer,  248. 
Norwood  V.    Marrow,    96,   110. 
Nottingham   v.   Jennings,    399. 
Noursc    V.    Merriam,    312. 
Norwell    v.   Johnson,    219. 
Noyes    v.    Clark,    234. 
Noyes   v.    Rich,    245. 
Noyes  v.  Sawyer,   272. 
Noyes    V.    Southworth,    647. 
Noyes   v.   White,    251. 
Nugent  V.  Riley,  228,  229. 
Null    V.    Fries,    231. 
Numoz   V.    Wilson,    578. 
Nutting  V.  Herbert,  586. 
Nye  V.   Hoyle,   433,   626. 
Nye  V.  Taunton  Branch  R.  R.,  108. 


Cakes  v.  Marcey,   512. 

Cakes    v.    Monroe,    168. 

Caksmith   v.    Johnston,    506. 

Cates  V.   Cook,   371. 

Cbert    V.    Obert,    194. 

O'Royle  v.  Thomas,  298. 

CBrien  r.   Banfield,   634. 

O'Brien  v.   Kreuz,  123. 

O'Brien   v.   Kustener,   9,   16. 

O'Brien   v.   O'Leary,    393. 

O'Brien  v.  Troxell,   170. 

Ocean  Grove,  etc.,  Assn.  v.  Asbury  Park. 

445. 
Ocean    S.   S.   Co.   v.    Hamilton,   161. 
O'Connor   v.    Gourand,    146. 
O'Connor  v.  McMahon,  181. 
O'Connor    t'.    Murphy,    642. 
O'Connor  v.   Pittsburg,   448. 
O'Daniel  v.   Bakers'  Union,  497. 
Odell  V.  Buds,  556. 
Odcll  V.  Odell,  641. 
Odinome   v.    Mason,    674. 

zcii 


Odlin   V.   Grove,    509. 

Odneal  i'.  City  of  Sherman,  441. 

Odone  v.  Beverly,  78. 

O'Donnell   v.   Hitchcock,    16. 

O'Donnell  v.   Mclntyre,  157. 

O'Fallon   v.   Clopton,   272. 

Officer  V.  Board  of  Home  Miss.,  410. 

Offut  z:   Scott,   185. 

Ogburn  r.    Conner,  445. 

Ogdcn  V.   Gibbons,  456. 

Ogden  r.  Haven,  583. 

Ogden  V.  Jennings,   493. 

Ogden  V.   Stock,   9. 

Ogden  V.  Thornton,  218. 

O'Hara  i:   Richardson,   495. 

O'Herrin  v.   Brooks,   605. 

Ohio  Central  R.   R.  Co.  v.  Central  Trust 

Co,   276. 
Ohnsbury   v.  Turner,   278. 
O'Keefe  v.  Calthorpe,  376. 
O'Kelly  V.   O'Kelly,   578. 
Okison  V.   Patterson,  548,  565. 
Olcott  V.  Tope,   371. 
Olcott  V.  Shepard,   205. 
Olcott  V.  Supervisors,  102. 
Olcott   V.    Wing,    185. 
Olcut   V.    Bynum,    278. 
Old  Colony  Trust  Co.  v.   Wichita,  240. 
Olden    V.    Sassman,    130. 
Oldenbaugh  v.   Bradford,   234. 
Olds  V.    Cummings,   253. 
Oliffe    V.    Wells,    366. 
O'Linda   v.    Lothrop,    601. 
Oliver   v    Cunningham,    235. 
Oliver   v.    Decatur,    245. 
Oliver   v.    Gay,    157.  ^ 

Oliver   v.    Hook,    427. 
Oliver   v.    Moore,    135. 
Oliver   v.    Piatt,    498,    621. 
Olliver  v.   Hook,    465. 
Olmstead   v.    Dunn,   301. 
Olmstead  v.   Elder,    250. 
Olmstead   v.    Niles,    134. 
Olney    v.    Howe,    373. 
Olney   v.   Hull,    306. 
Olsen    V.    Burk,    491,    501. 
Omaha  &  Grant,  etc.,   Co.  v.  Tabor,   189. 
Ombony  v.   Jones,    18. 
Onasch   v.    Zinkel,    367. 
O'Neal    V.    Brown,    577. 
O'Neil    V.    Capelle,    231,    233. 
O'Niel    V.    Grab,    222. 
O'Niel   V.   Webster,    574. 
O'Neill   V.   Douthitt,   264. 
O'Neill   V.    Gray,    244. 
Orll  V.  Bartlett,  275. 
Ordway   7'.    Remington,    150. 
Oregon    Iron   Co.   r.    Hughes,   1. 
Oregon  R.   R.  v.  Quigley,  627. 
Orford  v.   Benton,   81. 
Oriental    Bank   v.   Haskins,    566. 
O'Riley  v.   McKieman,   373. 
Orleans   v.    Chatham,    369. 
Orman  v.   Day,   450. 
Orme    v.    Roberts,    583. 
Ormiston    r.    Olcott,    380. 
Ormsby  v.   Tarascon,    278. 
Orndoff   v.    Hummer,    634. 
Orons   v.    Veazie,    532. 
O'Rorke   v.    Smith,    431. 
O'Rourke    v.    Beard,    373. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


O'Rourke  v.   Brown,   139. 

O'Rourke  v.  H.   P.   Cooper  &  Co.,   139. 

O'Rourke  z:    O'Conner,   583. 

Orphans'    Home  Soc.  r.   Dowdell,   495. 

Orr   V.    Clark,    176,    578. 

Orr   V.    Hadley,    239,   510. 

Orr  z:  Quimby,  525. 

Orr   V.    Rode,    272. 

Orr    V.    Yates,    373. 

Orser   v.    Hoag,    483. 

Orth  V.   Jennings,    583. 

Orvis  V.   Newell,  262,   584. 

Osborn  z:  Cook,  633. 

Osborn    v.   Jefferson    Bank,   647. 

Osborn    z'.    Osborn,    329. 

Osborne   v.    Homie,    108. 

Osborne  v.    Mull,   195. 

Osborne   v.    Tunis,    276. 

Osbourn  v.  Fallows,  266. 

Osgood  v.    Eaton,   367. 

Osgood  V.   Howard,   9. 

Osgood   V.    Thompson    Bk.,    233. 

Osman   v.   Sheafe,  344. 

Osmond   v.    Fitsroy,   556. 

Ostenson    z:    Severson,    219. 

Osterhout    v.    Shoemaker,    92. 

Osterman   v.    Baldwin,    374,    498. 

Ostrander   v.    Hart,    273. 

Ostrander   v.    Spickard,    118. 

Ostrom  z'.  McCann,   273. 

O'SuIlivan  z\   Norwood,   146. 

Oswald  V.   McCurley,   123. 

Oswald  r.  Mollett,  139. 

Otis  z:  Conway,  139. 

Otis    z:    Smith,    4. 

Ottaquechee   Sav.    Bk.   z:   Holt,  237. 

Ottawa  Plank   Road  v.  Murray,  234. 

Ottman  v.   Moak,   286. 

Otto    I-.    Long,    124. 

Ottomeyer  v.    Pritchett,    360. 

Ottumwa  Lodge  v.  Lewis,  190. 

Oury  V.    Saunders,  498. 

Ousler  V.   Robinson,  294. 

Outcalt   V.    Ludlow,    504.  • 

Outcalt   v.    Outcalt,    640. 

Outcrbridge   v.    Phelps,    432. 

Outland   v.    Bowen,   298. 

Outon   ?'.   Weeks,   406. 

Outtun    v.    Dulin,    157. 

Overfield   v.    Christie,    499,    624. 

Overman  v.  Simo,  201. 

Overseers   v.    Sears,    30. 

Overton   v.   Devisson,   596. 

Overton   v.    Overton,    634. 

Overton   v.    Williston,    16. 

Owen  V.   Baker,   574. 

Owen    V.    Brookport,    157. 

Owen  V.   Fields,   211,   606. 

Owen   V.    Hyde,    57,    62. 

Owen    V.    Morton,   186. 

Owen   V.    Slatter,   600. 

Owen  V.  Yale,  98. 

Owens    V.    Barrel],    116. 

Owens   V.    Clayton,    463. 

Owens  V.    Owens,    195,   878. 

Owens    V.    Ottowa,    583. 

Owings  V.   Emery,  64. 

Owings    V.    Hill,    358. 

Owings   V.   Tucker,    578. 

Owsley   V.    Johnson,   659. 


Owsley    V.   Owsley,   363. 
Oyster  v.   KnuU,  30. 


Pabst   Brewing  Co.   z:   Thorley,   144. 

Pace  V.    Payne,    498. 

Packard  v.  Ames,   205. 

Packard  v.  Agawan   Ins.   Co.,   248. 

Packard    v.    Moss,    494. 

Packard  v.  Putnam,  374. 

Packer   v.    Rochester,    275. 

Padelford  z'.  Padelford,  57. 

Padfield   z:    Padfield,    632. 

Page    V.     Foster,    231. 

Page  V.  Hayward,   42,  298. 

Page  V.  Kinsman,   157. 

Page   V.    Murray,    433. 

Page  V.  Palmer,  202. 

Page  V.    Pierce,   251. 

Page  V.    Robinson,   243,   265. 

Page  V.    Roper,    408. 

Page  V.   Waring,  582,  584. 

Paiker    z:    Wasley,    631. 

Pain  V.  Smith,   213,  216. 

Paine   v.    Benton,    236. 

Paine  v.   Woods,   2,   598. 

Painitup  v.  Hill,    34. 

Palethorp   v.    Bergner,    148-. 

Palmer  v.   Edwards,   139. 

Palmer    v.    Fleshees,    448. 

Palmer    v.    Foote,     239. 

Palmer  v.   Forbes,  2. 

Palmer   v.    Guthrie,    233. 

Palmer   v.   Jones,    509. 

Palmer   v.    Mulligan,    599. 

Palmer    v.    Nelson,    157. 

Palmer    v.    Snell,    272,    283. 

Palmer  v.    Sterling,    217. 

Palmer   z'.    Stevens,    240. 

Palmer  v.   Young,    146,   320. 

Palmer    v.    Wetmore,    152. 

Palmeter   v.    Carey,    253. 

Palmetto  Lumber  Co.  z:  Risley,  368. 

Palms  V.   Palms,   180,   399. 

Panton   v.   Holland,   448. 

Parish   v.   Ward,    483. 

Parish   v.   Whitney,    617. 

Park  V.  Hall,  228. 

Park    V.    Loomis,    592. 

Park  V.    Pratt,   559,   603. 

Parke  v.  Hush,   266. 

Parke  v.  Kilham,   178. 

Parke  v.  Mears,  573. 

Parker   v.    Anderson,    529. 

Parker  v.    Banks,    493. 

Parker  v.   Bell,   239. 

Parker    v.    Bowles,    185. 

Parks  V.  Converse,  376. 

Parker   v.    Dufford,    576. 

Parker  v.    Foote,   443. 

Parker  v.   Foy,  217,  565. 

Parker  v.   Framingham,   601. 

Parker  v.  Glover,  302. 

Parker  v.  Hale,   160. 

Parker   v.    Hill,    384. 

Parker  v.  Kane,  518,  595. 

Parker   z:    Kelley,    217. 

Parker  v.  Logan,  867. 

Parker  v.  Marks,  514. 

xciii 


TABLE   OF   CASES   CITED. 


[References  arc  to  Sections.] 


Parker  t.  McMillan.  366. 

Parker  r.  Mctigar,  506. 

Parker  r.  OBear,  101. 

Parker  t.  Overman.  532. 

Parker  f.  Parker.  85.  105. 

Parker  f.  Proprietors,  etc,  511. 

Parker  f.   Safford.  672. 

Parker  f.  Snyder,  367. 

Parker  t .  Wallis.  494. 

Parker  v.  Webb,  468. 

Parker  f.  White.  405. 

Parker  v.  White.  273. 

Parkhurst  f.  Cummings,  266. 

Parkhurst  r.   Northern,    etc.,    R.    R.,    238. 

Parkhurst  f.  Smith,  aoi. 

Parkhurst  f.  Van  Courtlandt,  374. 

Parkins  v.  Coxe,  62. 

Parkist  f.  Alexander,  581. 

Parkman   f.    Suffolk   Sav.    Bank.   374. 

Parkman  f.   Welch.  566. 

Parks  :'.   Bishop.   438. 

Parks  r.    Boston,  152. 

Parks  r.   Hewlett,   572. 

Parks  t'.  Jackson,  583. 

Parks  t'.   Robinson,  52,  408. 

Park's   Admr.    s'.    Am.    Home    Miss.    Soc, 

298. 
Parmelec  t-.  Daun,  251. 
Parmelee  v.   Simpson,  576,  577. 
Parmenter  i:   Walker,  279. 
Parmenter  f.  Webber,  139. 
Parmentier  v.  Gilespie.  263. 
Parmer's  Admr.  r.  Parmer,  233. 
Parr  t.  Newby,  123. 
Parramore  v.  Taylor,  633. 
Parrett  f.    Bell.   607. 
Parrington  -•.   Pierce,   229. 
Parrish  f.   Rose,  54. 
Parshall   i:    Eggart,   277. 
Parsons  v.  Camp,  2. 
Parsons  v.  Copeland,  13. 
Parsons  v.  Johnson,  427,  428. 
Parsons  v.  Miller,  627. 
Parsons  z:  Parsons,  637. 
Parsons  v.  Winslow,   56. 
^artch  V.  Spooner,  492. 
Partridge  v.   Bere,  247. 
Partridge  v.  Cavender,  370. 
Partridge  v.  Colegate,  179. 
Partridge  t'.   Dorsey,  38. 
Partridge  v.  Partridge,  251. 
Partridge  v.  Swazey.  236. 
Partridge  v.  Wilson,  264. 
Patch  V.  Wilde,  270. 
Patchen  v.  Patchen,  640. 
Pate  f.   French,  393,  512. 
Patrick  v.   Morrow,   558,   637. 
Patrick  r.  Sherwood,  54. 
Patten  r.  Moore,  585,  586. 
Patten  r.  Talman,  634. 
Patterson  r.  Arthur,  617. 
Patterson  v.  Blake,  185. 
Patterson  v.  Boston,  152. 
Patterson  v.  Cappon,  617. 
Patterson  v.  Cameal,  567. 
Patterson  i:  Ellis,  397. 
Patterson  v.  Harlan,  606. 
I'-"fer»on  v.  Martin,  193. 
P-'Merson  V.  Pease,   512. 
Patterson  v.  Phila..  etc..   R.   R.   Co.,   434. 
Patterson  v.  Triumph  Ins.   Co.,  248. 

xciv 


Patterson  v.  Wilson,  413. 

Patterson  v.  Yeaton,  235,  518. 

Pattison  v.  Horn,  368. 

Patton  V.  Axley,  164. 

Patton  V.   Beecher,  374 

Patton  V.  Chamberlain,  374. 

Patton  V.  Deshon,   147,  149. 

Patton  7'.   Pearson,  250. 

Patty  V.  Goolsby,  408. 

Patty  V.   Pease,  285. 

Paugh  &  Co.  V.  Ceremido,  143. 

Paul  f.    Campbell,   181. 

Paul  V.  Cragnas,  17. 

Paul  V.  Witman,  624. 

Paulk  V.  Cooke,  566. 

Pauzel  V.   Brookmire,  251. 

Paxon  t'.  Paul,  254. 

Paxton  V.  Stewart,  368. 

Payne  v.  Atterbury,  217,  220. 

Payne  v.  Avery,  217. 

Payne  v.  Harrell,  221,  276. 

Payne  z:  James,   147. 

Payton  v.  Mayor  of  London,  448. 

Payton  v.  Sherburne,   168. 

Peabody  v.   Hewett,   501. 

Peabody  v.  Minot,   178. 

Peabody  v.  Tarbell,  329. 

Peake  v.  Jenkins,  631. 

Pearce  Z'.   Fofeman,   217. 

Pearce   v.    McClenaghan,    428. 

Pearce  v.  Savage,  17(5,  371. 

Pearce    z:    Taylor,    582. 

Pearce  v.   Wilson,  230. 

Pearl  r.  Hervey  219. 

Pearl    r.    McDowell,    556. 

Pearsell  z:    Post,    429. 

Pearson  z:  Allen,   439. 

Pearson  z:   Helliwell,    463. 

Pearson    z:    Johnson,    427. 

Pearson   v.    Sanderson,    146. 

Pearson    v.    Seay,    231. 

Pease   v     Inh.    Whitman,    181. 

Pease   v.    Kelley,    217. 

Pease  z'.  Pilot   Knob   Iron   Co.,   243. 

Pease   v.    Stone,    478. 

Peaslce  v.  Tower,  447. 

Pease   v.    Warren,    250. 

Peaslee  v.  Gee,  603. 

Peavey  r.  Tilton,   578. 

Pecare   z\    Chouteau,    615. 

Peck  V.   Ayers,   68. 

Peck  z\    Ratchelder,   ]  r^. 

Peck  V.  Carpenter,    101. 

Peck  V.   Jones,    152,    619. 

Peck  7'.   Lockridge,    186,   187. 

Peck  7'.  Mallams,  552. 

Peck  7'.   Northrup,   149. 

Peck   z'.    Ormsby,    126. 

Peckham    v.    Lego,    298,    302. 

Pederick  z'.   Searle,  504. 

Peer  z:   Wadsworth,    60,   139. 

Pegnes  z'.  Warley,  493. 

Pells   V.    Brown,    397. 

Pelton   z:    Draper,    160. 

Pelton    z:    Westchester,    365. 

Pemherton  Z'.  Pemberton,  118. 

Pence   7'.    Duval,    618,    625. 

Pence  z:  Gobbert,  239. 

Pendlay  Z'.   Eaton,  637. 

Pendleton   7'.   Fay,   253. 

Pendleton   v.    Rooth,    247. 


TABLE   OF   CASES   CITED, 


[References  are  to  Sections.] 


Penhallow  v.   Dwight,   59,    529. 

Penhey  v.   Harrell,   314. 

Penn    v.    Case,    126. 

Penn   v.   Ott,  238. 

Penn   v.    Rodrigues,    527. 

Penn.   Co.   '<.:    Dovey,   577. 

Pennel   z'.   Weyant,   577. 

Pennington    v.    Hanby,    231.     . 

Pennington    v.    Ogden,    479. 

Pennington    f.    Pennington,    45,   399. 

Pennsylvania   Co.   v.   Dovey,   577. 

Penton  v.   Robert,   16,  58. 

People  V.   Bd.    Foxcoms.   456. 

People  V.  Canal   Appraisers,   597. 

People  V.   Canal  Cotnmrs.,  598. 

People  V.  Chase,  656. 

People  V.  Gilon,  617. 

People  7'.    Henderson,  597. 

People  V.   Howell,   531. 

People  V,  Hir.nphrey,  525. 

People  J.  Irwin,  483. 

People  2'.   Laws,  601. 

People  V.  Livingston,  520. 

People   V.    Lowndes,    497. 

People  V.  Mayor,  etc.,  559. 

People  V.   Miller,   512. 

People  V.  Organ,  553. 

People   V.    Piatt,    597,    599. 

People   V.    Rickhert,    134. 

Peoples'  Sav.   Bank  v.  Denig,  322. 

People   V.    Simon,    656. 

People  J'.    Snyder,   576. 

People  V.   Supreme  Court,  234. 

People  V.   Utica   Ins.    Co.,   453. 

Pepper   v.    O'Dowd,    493,    496. 

Percival    i'.    Percival,    98. 

Perez  v.    Rayband,    146. 

Perin    v.    Carey,    641. 

Perine    r.    Dunn,    275. 

Perine  t:   Teague,    170. 

Perkins    v.    Brierfield,    266. 

Perkins  r.    Dibble,   229. 

Perkins  v.  Emory,  463. 

Perkins  v.  Gibson;  217,  219. 

Perkins    v.    Perkins,    426. 

Perkins    i:    Presnell,    407. 

Perkins   v.    Stearne,    250,    257. 

Perkins    v.    Woods,    273. 

Perminter    v.    McDaniel,    553. 

Perrin  ?•.   Blake.  321,  322. 

Perrin  v.   N.   Y.  Cen.    R.    R.,  601. 

Perrin    r.    Read,    239. 

Perrine  f.  Perrine,  558. 

Perry  -'.  Aldrich,  55. 

Perry  v.    Barton,   495. 

Perry  v.   Binney,  005. 

Perry  v.    Carr,   2. 

Perry   v.    Grant,   217,   218. 

Perry    t'.    Hale,    638. 

Perry   f.    Kearns,    253. 

Perry    t.    Kline,    45. 

Perry   v.    Meddowcraft,   281. 

Perry  i\   Price,   565. 

Perry  v.   Sadler,   489. 

Persiful  V.   Hind,  127. 

Person  7'.   Chase,   556. 

Peru  V.  Barrett,  454. 

Peter  f.   Beverly,   375.   880. 

Peter  v.    Byrne,    74,    558. 

Peter   t-.    Kendall.    454. 

Peters  v.  Berkemeier,  668,  578. 


Peters   v.    Florence,    257. 

Peters  v.  Jamestown   Bridge  Co.,   250. 

Peterson    v.    Clark,    6S,    230. 

Peterson   v.   Edmonson,    151. 

Peterson  v.  Ferrell,  C8. 

Peterson    v.    Fowler,    195. 

Peterson  v.   Hall,   5. 

Peterson    v.    Jackson,    397. 

Peterson  v.   McCullough,  493. 

Peterson   v.    Sloss.    521. 

Pettand  v.   Keep,  432. 

Petril   V.    Folz,    625. 

Pettee  z:   Hawes,   608. 

Pettee  v.  Hawkes,  430. 

Fetters  z\   Fetters,  649. 

Petterson   -■.    Brewing   Co.,    161. 

Pettijohn    v.    Beasley,    118. 

Pettingill  v.    Porter,   439. 

Pettit   f.   Johnson,    282. 

Pettitt   V.    Norman    Institute,    292. 

Petty   -'.    Malier,   479. 

Peyton  v.  Mayor  of  London,  449. 

Pfeiflfer  v.   McNatt,  123. 

Phasis  V.  Leachman,  103. 

Phelan  v.  Brady,  586. 

Phelps  V.  Chesson,  207. 

Phelps    V.    Harris,   381. 

Phelps  v.   Jackson,   368. 

Phelps  V.  Jepson,  176. 

Phelps  V.    Kellog,    522. 

Phelps  v.   Sullivan,   553. 

Philadelphia  z:    Girard,   399,    041. 

Philadelphia   Assn.,   etc.,   z\   Wood,   531. 

Philadelphia,     etc.,    R.     R.    t.     Woelpper, 

238. 
Philadelphia,   VV.  &   B.   R.   R.  r.   Howard, 

578. 
Philbrick  Z'.   Ewing,   16,   606. 
Philbrick   v.    Spangler,    631. 
Philbrook   v.    Delano,   217. 
Phillipps  V.   Covert.  162. 
Phillips  z:   Hardenburg,   85. 
Phillipps   t:    Pressen,   125. 
Phillipps    z:    Sherman,    178. 
Phillipps    !'.    Wiseman,    98. 
Phillips  r.    Allen,   57. 
Phillins  Z-.    Bk.    of   I^wiston,   585. 
Phillips   z:    Dressier,    434. 
Phillips    z:    Ferguson,    204. 
Phillips  z:    Houston,    577,   578. 
Phillips   z:    Kent,    506. 
Phillips   T.    Overfield,   368.  , 

Phillips   V.    Phillips    v.    307. 
Phillips  7'.   Sherman,   521.  • 

Phillips  z:    Skinner,    217.  i 

Phillips  z:  Thompson,  365. 
Phillips   V.   Tudor,    593.  i 

Phillips  Z'.    Winslow,    238.  v 

Phillip's  Academy  z:  King,  331. 
Phillips   z:    Green,    556. 
Philpot    z:    Hoare,    140. 
Phinney  z:   Watts,   600. 
Phipard    r.    Phiphard,    873. 
Phipps    V.    Hope,    631. 
Phipps  J^    Lord   Ennismore,   370. 
Phipps  z>.   Tarpley,   615. 
Phyfe  -t/.    Riley,    253. 
Piatt  V.  Hubbell,  193. 
Piatt   V.    McCullough,    632. 
Pibus   i:    Mitford,    S22. 
Pickard  v.  Kleis.  148. 

xcv 


T.VBLE   OF   CASES   CITED. 


[References  are  to  8ection8.'\ 


Pickering  f.    Langdon,  649. 

I'lckciiiiR  f.  Moore,  2. 

I'lvkcriiig  f.   O'Brien,   134. 

I'iiKcring    t.    Pickering,    190. 

Pickering  : .  Stapler,  606. 

Picket    :•.    Uowdall,   516. 

Pickett   :■.    Anderson,   151. 

Pickett    t.    Itiickner.    281. 

Iickitt    :.    I'cruuson,    157., 

Pickett  t.  Jones,  250,  277. 

Piikctt   f.    Peay.   118. 

I'ico   :•.    Coiumbet,    191. 

Pier   :.    Carr.    LIS,    154. 

Pierce   f.    narncy,    5o-,>. 

Pierce   f.    Krcw,    5«5,    617. 

Pierce    f.    Brown,    157. 

Pierce   i-.   Chase,   181. 

Pierce  t .   Kmery,  238. 

Pierce   f.    Faunce,    253. 

I'ierre  f.    Fernald,  443. 

Pierce  v.   George,    13,    15. 

Pierce  f.   Grimley,   278. 

Piester  f.    Picster,   259. 

Pierce   f.    Potter,   239,   276. 

Pierce  f.   Robinson.  233. 

Pierce  f.    Simmons,   30. 

Pierce  v.  Trigg,  86. 

Pierce   f.    Vansell,    528. 

Pierce   f.    W'anett,    80. 

Pierce   x:    Williams,    105. 

Pierson  f.  Armstrong,  565. 

Pierson    v.    Lane,    45. 

I'ifcr    V.    Ward,    90. 

Piggot   I'.    Mason,   147. 

Piirgott  f.   Straton,   156. 

Pike   :■.    Brown,    142. 

Pike    r.    Calvin,    5].'i,    582. 

Pike  V.   Collins,   236. 

Pike  I'.    Kvans,    494. 

Pike   V.    Goodnow.    253,    254. 

Pike   V.    Leiter,    134. 

Pike  V.   Robinson,   495.   496. 

Pillot    V.    Boosey.    1  »S 

Pillow   f.    Roberts.    494,    572. 

Pillsbury   v.    Smyth.    254. 

Pirn    :•.    Downing,    380. 

P'ncknev    :■.     Biirrage,    505. 

PinJall    T.    Trevor,    368. 

Pine    ;•.    Now    York,   2. 

Pincw  -•.    ludson,  166. 

Pingree   v.    McDnflFee,    443. 

Pingrey   ;•.    Watkins,    139. 

Pinhorn    f.    Souster,    163. 

Pinkham   -'.    Blair,   393. 

Pinney    v.    Fellows,    374. 

Pinson   v.   Ivey.   331. 

Pinson  v.   Williams,   97. 

Pintard  :-.   Goodloe.  217. 

Piper   V.    Smith,    185. 

Pitcher  v.   Dore.   510. 

Pitcher  v.  Laycock.  556. 

Pitman  v.  Conner.  619. 

Pitman   v.   Thornton.  266,  271. 

Pitts  V.    Aldrich,   258. 

Pitts  V.   Cable,    231. 

Pitts   V.    Parker.    219. 

Pitts  V.  Pitts.  98. 

Pitts   V.    Whitehead,    494. 

Pittsbjirg.  etc.,   R.   R.   Co.  v.   Reno,   43S, 

626. 
Pivard  v.   Gisenhof.    562. 

xcvi 


Plain   V.    Roth,    290. 

Plain    Bridge   Co.    v.    Smith,    456. 

Plant  i:   James,    606. 

Planter's    Bank   v.   Davis,   81. 

Planter's,  etc.,  Bank  v.  Dickenson,  126. 

Planter's  Bank  i'.  Henderson,  126. 

Planter's  Bk.  v.  Johnson,  528. 

Planter's  Bk.  f.   Prater,  308. 

Planter's  Compress  Co.  v.  Howard,   168. 

Piatt   V.    Brannan,    385. 

Playter  i'.   Cunningham,  143. 

Pledger  v.    Ellerbe,  92. 

Pleydell   v.   Pleydell,    397. 

Plimpton    V.    Converse,    498,    514. 

Plimpton    V.    Ins.    Co.,    248. 

Plum  V.  Studebaker,  727. 

Plumb  V.   Toflfs,   204. 

Plumer   v.    Plumer,    65. 

Plumleigh  v.   Cook,  207. 

Plummer  f.  Hillside,  17. 

Plummer  z\   Rohman,   126. 

Plummer  v.  Russell,  571. 

Plunket    7'.    Holmes,    81,    316. 

Plunkett   r.    Penson,    239. 

Plush  7'.   Diggs,   139. 

Plymouth   ?■.    Carber,   617. 

Plympton  v.    Boston  Dispens.,  54. 

Podesta  7'.    Bims,    528. 

Podlech   7'.    Phelan,    18. 

Podmore  v.  Gunning,  368. 

Poe  V.  Domec,  545,  565. 

Poygnard  7'.  Smith,  247,  495. 

Poindexter    v.    Henderson,    68. 

Pomdexter    v.    McCannon,    231. 

Point    Pleasant     Land    Co.    v.     Cranmer, 

441. 
Polk  V.  Clinton,   266. 
Polk    V.    Linthicum.    376. 
Poll   7'.    Main,   128. 
Pollack    V.    Stacy,    139. 

Pollard  7'.   American   Land   Mtg.   Co.,  246. 
Pollard  V.    Cocke,    583. 
Pollard   V.    DwiRht,    014. 
Pollard   V.   Greenvil,   417. 
Pollard  :•.    Pollard,    118. 
Pollard   ■■.    Shaffer,    GO,   147. 
Pollard  V.  daughter.  99. 
Pollock  V.   Kittrcli,    162. 
Pollitt   7'.    Long,    444. 
Poison  7'.  Ingram,   429. 
Polyblank   v.    Hawkins.   69. 
Polzin  V.   Polzin,   204. 
Pomeroy  v.    Layting,   260. 
Pomfret    v.    Ricord,    431,    440. 
Pomroy   7'.    Stevens,    586. 
Ponce  V.  McElroy,   366. 
Pond  V.  Allen,  301,  640. 
Pond   7'.    Johnson,    109. 
Ponder   v.   Ritzinger,  256. 
Ponty  V.  Moss,  363. 
Pool   V.    Blaikie,    79. 
Pool  V.  Hathaway.   258. 
Pool    V.    Lewis,    444. 
Pool  V.  Reid,   126. 
Poole   V.    Bentley,    136, 
Poole  V.    French,   529. 
Poole  V.   Gerrard.   126. 
Poole  V.  Jackson,   573. 
Poole   r.    Longueville,    69. 
Poole  V.  Morris,  298,  393. 
Poole  V.   Poole,   322. 


TABLE   OF    CASEy    CITED. 


IReferences  arc  to  Sections.] 


Poor  V.  Oakman.   5C3. 

Pope  V.  Biggs,  245. 

Pope  r.  Brassfield,  180^. 

Pope  t'.   Durant,   272. 

Pope  V.  Gerrard,  151. 

Pope  V.  O'Hara,  435,  606. 

Pope   V.    Skinkle,    9. 

Pope   V.   Town   of    Union,   441. 

Portens   v.   Holm.   633. 

Porter   v.    Bleiler,    149. 

Porter   i:    Bradley,   397,    617. 

Porter  v.  City  of  Dubuque,  217. 

Porter  v.   Hill,   193,  625. 

Porter  v.   King,   239. 

Porter  v.   Nelson,   233. 

Porter  v.   Osman,   197,   301. 

Portis  V.   Parker,    75. 

Porter  v.  Pillsbury,  27C. 

Porter  v.  Sevey,  585. 

Porter   v.    Woodhousc,    578. 

Portland   %:   Terwillicr,   205. 

Posey  V.   Cook,   347. 

Post  V.  Door,   245. 

Post  V.  Jackson,   143. 

Post  V.   Kearney,  139. 

Post  V.   Pearsall,   424,  465. 

Post  V.   Rivers,   640. 

Post  V.   Van   Houtcn,  310. 

Post   V.    Vetter,    146. 

Poston  V.  Eubank,  273. 

Potter   V.    Clapp,    115. 

Potter  V.  Couch,   33,   404. 

Potter  V.   Everitt,  85. 

Potter   V.    Gardner.    383. 

Potter  V.    Kimball,    228,    505. 

Potter  V.   Stevens,   251. 

Potter  V.  Thornton.  641. 

Potter  V.  Titcomb,   472. 

Potts   V.   Coleman.   498. 

Potts  V.  Gilbert,  5ni. 

Pounds   V.    Dale,    647. 

Powell  f.   Brandon,   321. 

Powell    V.   Clark.    594. 

Powell  V.  Gossom,   80. 

Powell  V.  Harrison,  263. 

Powell  V.  Monson  Co.,  15,  106. 

Powell   V.   Murray,   348. 

Powell  V.   Powell,   85. 

Powell   V.    Rich.   563.    606. 

Powell  V.   Simmes,    443. 

Power  V.   Cassidy,   366. 

Power  V.   Dauchertv,   475,   478. 

Powers  V.   Bullwinkle,   45. 

Powers  V.   Dennison.  615. 

Powers   7'.    Martin,   237. 

Powers  7'.   McFerron.   582. 

Powers  V.   Rude,   576. 

Poweshiek    Co.   v.    Dennison,    278. 

Powles   J'.    Tunes,    248. 

Powtucket   7'.    Ballou.    633. 

Poyas    V.    Wilkins,    559. 

PraKe  v.   Chinn,   186. 

Prahar  v.   Tansey,   161. 

Prather  v.   McClelland,   637. 

Pratt  V.   Ayer.   374. 

Pratt  V.  Bank  of  Bennington,  248. 

Pratt   V.    Brown,    520. 

Pratt  V.   Clark,  221. 

Pratt  V.   Clemens,    572. 

Pratt  V.  Colt,  870. 


Pratt   V.   Conway,   252,   284* 

Pratt  I'.    Farrer,    163. 

Pratt  V.    Felton,   118. 

Pratt   z.    Plainer,   638. 

Pratt  V.  Levan,  140. 

Pratt  v.   Meyers,   566. 

Pratt  V.   Miller,  366. 

Pratt  V.  Ogden,  465. 

Pratt  V.  Pratt,   123. 

Pratt  V.  Skolfield,  250. 

Pratt  V.   Sweetser,   435. 

Pratt   V.   Vanwycks    Exrs.,    217,   221. 

Pray   v.   Pierce,   543,   545. 

Preachers'   Aid  Soc.  v.   Rich,   641. 

Preble   v.    Hay,    164. 

Preffit  V.   Henderson,   60. 

Preiss  v.   Lepoidevin,   624. 

Prentice  r.  Northern  Pac.  R.  R.   Co.,  521, 

Presbrey  v.  Presbrey,   186,  590. 

Presbyterian  Church  v.  Kellar,  601. 

Prescott  V.  Prescott,  123,  296. 

Prescott  V.    Walker,    88. 

Prescott  V.  White,  435,  617. 

Prestman   v.    Baker,    578. 

Preston  v.  Brant,   195,   306. 

Preston  v.  Hodges,  251. 

Preston  v.   Robinson,  593. 

Preston  v.    Wilcox,   376. 

Preston  v.  Wright,  187. 

Prettyman  7:  Walston,   56. 

Prevost  V.  Graty,   40S. 

Price   V.    Berrington,    556. 

Price  V.  Brown,  495. 

Price  V.  Carter,  216. 

Price   V.   Courtney,    411. 

Price  V.  Cutts,  228. 

Price  V.  Furman,  556. 

Price  V.  Grover,  233. 

Price  V.    Tackson.    494,   495. 

Price  V.  King,   608. 

Price  V.  Madison,  2. 

Price  V.   Perric,   225,   234. 

Price  V.   Pickett,   58. 

Price  V.  P.  &•  Ft.   W.  &   C.   R.  R.,  579. 

Price  V.  Price,    105. 

Price  V.  Sisson,  297,  3')2. 

Price   V.    Clingri,    547. 

Price  V.   Norwood.   208. 

Prickett  v.   Parker,   471. 

Priddy  -■.   Griffith,  84. 

Priest  7'.  Cummings,   97. 

Priest  V.  Rice,  583. 

Prim  V.  Walker,  178,   480. 

Prince  7'.   Hake,   122. 

Princeton,   Etc.,    Co.   v.   Munson,   272. 

Prindle  v.  Anderson,  169. 

Pringle  t:  Coal  Co.,  5. 

Pringle  v.  Dunn,  581,  584. 

Prior  V.   Comstock,   488. 

Prior  V.    Scott,    590. 

Pritchard  7'.   Brown,  229. 

Pritchard  v.   Walker,    177,    298. 

Pruitt  V.  Holly,  54. 

Probas   Co.   v.   Johnson,   214. 

Proctor  V.  Hodgson,  431. 

Proctor  V.   Jennings,   444. 

Proctor    V.    Maine    Cent.    Co.,    498. 

Proctor  7'.    Proctor.   640. 

Prodgers  v.  Laugham,  566. 

Proprietors  7'.  Lowell,  4. 

Proprietors  t.  McFarland,  406. 

xevii 


TABLE   OP   CASES   CITED. 


[References  are  to  Sections.] 


Proprietor's  Bialile  Sq.  Church  :■.  Grant 

313. 
Proprietors,    etc.,    r.    Grant.    2U.     . 
Proprietors,   etc.,    t.    I'rescott,    610. 
I'rosser  v.   Hardesty,   39.S. 
Providence   BU.  f.   Billings,  531. 
Providence   Steamboat   Co.   :.    Fall    River, 

441. 
Provost   f.    Provost,    631. 
Pruett  V.   Hallen,  300. 
Pryce   f.    Bury,    a  16. 
Pryor    f.    Castleman,    310. 
PryOr  r.   Hollinger,  260. 
Pueblo,    etc.,    Valley    R.    R.    r.    Beshoar, 

230. 
Pugh   f.    Arton,   18. 
Pugh   f.    Holt,    230. 
Pugh   7:    Pugh,    640. 
Pulford    V.    Morton,    367. 
Pullan  r.   C.  &  C.   R.    R..  245. 
Pullan    f.    Simpson,    529. 
PuUcn   f.   Hopkins,   495. 
Pullen  V.   Pullen,  98. 
Pullis  f.    PuUis,   228. 
Pulpress   V.    African    Ch..    380. 
Pulse   V.    Osborne,    5f>. 
F'umphrey   v.    Pumphrcy,    118. 
Purcell   V.    Goshom,    658. 
Purcell  V.    .Mather,   238.   , 
Purcell    T'.    Huntingdon,   242,   250. 
Purefoy  i-.   Rogers,  86,  298. 
Purvis   r.    W'ilson,    19.5. 
Puscy    V.     Presbyterian     Hospital,    164. 
Putnam   j'.    Bond,    590. 
Putnam    !•.    Ritchie,    269. 
Putnam    f.    Tuttle,   608. 
Putnam   '.:    Wise,   135. 

Putnam's  Free  School  t.  Fisher,  377,  498. 
Putney  v.    Dresser,    176. 
Pyer   v.    Carter,    432. 
Pylant  v.   Reeves,  217. 
Pynchon    ?•.    Stearns,    57. 


guackenboss    v.    Clarke,    140,    143. 
uale   V.    Hazel,    569. 
8uestess    f.    Morgan,    150. 
„uimby  f.  Boyd.  574. 
8uinby  f.   Higgins,   476. 
uinby  v.  Manhattan  Cloth,  Etc.,  Co.,  13, 
16. 
Quincy   v.    Cheeseman,    245. 
Quinlan  v.   Boute,   134. 
Quinn  V.   Anderson,   466. 
Quinn    i:    Brithaige,    246. 
Ouinn   t'.   Kinyon,    121. 
Quinn  7'.  Perham,  146. 

8uinn   r.    Windmiller,   497. 
uint   f.    Little,    247. 


Rabsuht  f.    Lack.    565. 
Raconillet  r.   Sansevain,  260. 
RadclifTe   i'.    Rowley,   264. 
RaHcliffe  -■.    Scruggs,   505. 
Radey  t'.   McCurdy,   18. 
Raeen  v.  Avery,  574. 
Railey    v.    Milan,    301. 
Railroad    t-.    Schurmeier,    597. 

xcviii 


Railsback  v.   Lovejoy,    195. 

Raleigh   Bank  t:   Moore,   260. 

Raleigh   v.    Wells,  *473,   493. 

Raley  i:   County  of   Umantilla,   201, 

Raley   t.    Simpson,    146. 

Ralston    v.    Moore,    574. 

Ralston   v.    Ralston,    86. 

Rammelsberg  v.   Mitchell,   3S0. 

Rarasdill  ?'.   Wentworth,  647. 

Ranalli    !■.    Zeppetelli,    627. 

Randall    v.    Elwell,    2. 

Randall    v.    Hazleton,    278. 

Randall   v.   Kreiger,   110. 

Randall  -■.    McLaughlin,   431. 

Randall   r.    Phillipps,   176,   368. 

Randall    v.    Randall,    373. 

Randall    t.    Sanderson,    443. 

Randall    v.    Silverthorn,    585. 

Randolph   r.    Kinney,   626. 

Randolph    v.    Randolph,    365,    640. 

Randolph    ?•.    Middleton,    272. 

Rands    v.     Kendall,     243. 

Ramsdell  r.  Emory,  367. 

Ramsdell    v.    Ramsdell,    298. 

Rankin   v.    Barcroft,    376. 

Rankin  v.   Major,   274. 

Rankin  7:    Mortiniere,  234. 

Rankin    v.    Rankin,    96. 

Rankin   z:    Safford,   567. 

Rankin  7'.   Shaw,   126. 

Rankin    Baptist    Church   v.    Edwards,   201. 

Rannells    f.    Gerner,    97. 

Rannells    ?■.    Gerner,    97. 

Rannells    ?■.    Isgrigg,    86,    97. 

Ransone    ?'.     Frayser,    231. 

Rapalye  r.   Rapalye,  288. 

Rash   J'.    Lewis,    406. 

Ratcliff   7'.    Belfort    Iron    Co.,    157. 

Ratcliff  7'.    Ratcliff,   79. 

Ratliff  7'.   Davis,   274. 

Ratliffe  7'.  Marrs,  609. 

Raume    7:    Chambers,    80. 

Rausch  7'.    Moore,   85. 

Rawley  7'.   Holland,  329. 

Rawlins   7'.    Buttel,    98,    105. 

Rawson  7'.    Fox,   494. 

Rawson   v.    Uxbridge,   201,   627. 

Rawstron    7'.    Taylor,    445. 

Ray   V.    .Anderson.    219. 

Ray  V.    Hallenbeck,  236,   260. 

Ray   V.    Hill,    632. 

Ray    V.    Lobdell,    285. 

Ray    V.    Murdock,    532.  ^ 

Ray  V.    Simmons,   373. 

Ray  V.    Spears,    33,    34. 

Ray   V.    Pauge,    99. 

Ray  V.    Yarnell,    126. 

Rayall's   Admr.   v.  McKenzie,   38Q 

Raymond   7'.   Bales,  236. 

Raymond  7'.  Holden,  512,  515. 

Raymond    7'.    Raymond,    512. 

Raynham   7:   Wilmarth,   108. 

Raynor   7'.    Lee,    504. 

Raynor  7\   Timerson,   510. 

Raynor  7'.   Wilson,  554. 

Razor    v.    Dowan,    574. 

Rea  V.   Copelin,   368. 

Rea  7'.   Rea.   96. 

Read   t.    Allen,    495. 

Read   Hanks   7-.    Folsom,   542. 

Read    v.    Huff,    367. 


TABLE   OP    CASES   CITED. 


[References  are  to  Sections.] 


Read    r.    Robinson,    578. 

Read  f.  Williams,   373. 

Reade    v.    Livingston,    566. 

Ready    v.     Kearsiey,     56'<J. 

Reardon    f.    Murphy,    205. 

Reasoner    v.    Edmundson,    615. 

Reaume    v.    Chambers,    85. 

Recketts  j'.   Louisville,   etc.,   Ry.   Co.,  204. 

Reckhow  v.   Schank,   162. 

Rector  v.  Hartford  Dep.  Co.,  139. 

Rector  v.   Waugh,   177. 

Redd    V.    Murry,    605. 

Reddick    z\    Grcssman,    243. 

Redding  v.   Lamb,    619. 

Redfern  v.  Middleton,   51,  546. 

Redfield  v.   Buck,  566. 

Redfield   v.    Gleason,    190. 

Redford    ^■.    Gibson,    217. 

Redin  v.    Branhan,   253. 

Reding  v.    Stone,   387. 

Redmange  v.   Forster,  216. 

Redman    v.    Sanders,    244. 

Redmond  v.    Redmond,   118,   119. 

Redwine   v.    Brown,    614. 

Reece  v.   Allen,   282. 

Reed   v.    Beck,    131. 

Reed    v.    Campbell,    132. 

Reed   v.   Crocker,    469. 

Reed  v.   Dickermann,   117,  118. 

Reed   v.    Farr,    510. 

Reed  z:  Gaillard,  230. 

Reed  v..  Lamar,  348. 

Reed  v.   Marble,   250. 

Reed    v.    Morrison,    87,    100. 

Reed  v.  Reed,  163,  269. 

Reed   z:    Siddell,   660. 

Reed    v.    Underbill,    421. 

Reed    v.    Ward,    149. 

Reed  v.    Whitney,   87. 

Reeder  v.    Barr,   521. 

Reeder   v.    Craig,   514. 

Reeder  v.   Purdy,   173. 

Reese   v.    Smith,    514. 

Reese   v.    Wallace,   368. 

Reeve  v.   Long,   297,    391. 

Reeves   v.   Scully,   253. 

Reeves  ?•.    Slater,    562. 

Reeves  v.   Tappan,    410. 

Reformed   Dutch  Church  v.   Veeder,   345. 

Relf  V.   Gist,    572. 

Regan    v.    Williams,    25*,    285. 

Rehoboth  v.   Hunt,   178. 

Reickhoflt   r.    Brecht,   368. 

Reid   ?■.    Abernathy.    256,    577. 

Reid    r.    Mullins.    281. 

Reid   V.    Reid,    374. 

Reid   V.    Shergold,    417. 

Reifenstahl  7:  Osborne,  127. 

ReifT    r.    Reiff,    58. 

Reilly   v.    MaflFor,    290. 

Reinders  v.  Koppelman,  lOS,  807. 

Reiners    ?'.    Young,    482. 

Reinicker   v.    Smith,    593. 

Reinsehl   v.    Shirk,   393. 

Reinstein  v.  Daniels,  127. 

Reise  v.    Enos,    438. 

Reitenbaugh  v.  Ludwick,  229. 

Reitz   V.    Rettz,   807,    368. 

Reliable    Steam-Powcr    Co.    v.    Solidarity 

Watch  Co.,  151. 
Rcmey  v,  Iowa  Cen.  Co.,   291. 


Remington  r.  Am.  Bible  Soc,  642. 

Remington    r.    Lewis,    482. 

Remington     Paper     Co.     v.     O' Dougherty, 

264. 
Ren  V.    Bulkeley,   405. 
Reniston    v.    Adams,    640. 
Rennert    i:    Shirk,    497. 
Rennock   v.    Coe,    238. 
Renond    v.    Daskam,    147. 
Renzichausen  v.  Keyser,  341,  371. 
Repp    V.    Repp,    217. 
Rerick    z'.    Kern,    467. 
Renff    V.    Coleman's    Heirs,    202. 
Revenek   f.    Ingram,    617. 
Rex  V.    Collett,    165. 
Rex    i>.    Longnor,    575. 
Reyburn    f.    Wallace,    56. 
Reynard    z'.    Spence,    80. 
Reynolds  v.  Reynolds,  98,  633. 
Reynolds  i'.    Canal   &   Pkg.   Co.,   243,    246. 
Reynolds   t:    Crispin,    204,    304. 
Reynolds    v.    Darris,    530. 
Reynolds  f.   Hennessey,  281. 
Reynolds  z',    Lawton,   139. 
Reynolds    v.    Pitts,    209. 
Reynolds   v.    Tenant,    123. 
Rhea   v.    Rhea,    126. 
Rhett    V.    Jenkins,    186.  ' 

Rhim   V.    Ellen,    565. 
Rhinehart  v.    Stevenson,    275. 
Rhoades  v.   Canfield,    260. 
Rhode  V.   Louthain,  569. 
Rhoder  v.   Brockhage,  126. 
Rhodes  z:  Buckland,  266. 
Rhodes   v.    Gardner,    579. 
Rhodes  v.  McCormick,  123. 
Rhodes   v.    Otis,    407,   599. 
Rhodes  v.  Shaw,  301. 
Rhyne  v.  Guevard,   123,  157. 
Riblett   v.    Davis,    276. 
Ribordy   v.    Pellachoud,    447. 
Rice  z\   Barnard,   185. 
Rice  z'.   Barrett,  399. 
Rice    z:    Bird,    235. 
Rice   z:    Brown,    131. 
Rice    z'.    McFarland.    261. 
Rice    f.    Parkman,    524. 
Rice  V.   Pennypacker,   367. 
Rice  z'.  Sanders,  253. 
Rice   z:    Waddill,    108,    llS. 
Rice    Fisheries    Co.    z:    Pac.    Realty    Co., 

152. 
Rich  z:    Bolten,   164. 
Rich    z:    Brag,    195. 
Rich    z:    Cockrell,    348. 
Rich   z\    Doane,    231,    236. 
Rich    7'.    Johnson,    625. 
Rich    V.    Zeilsdorf,    4. 
Richard   z:    Bent,   616,    625. 
Richard    :•.    Liford,    50. 
Richard  z:   McPherson,   217,  218. 
Richard  z:  Talbird,  257. 
Richard  z\    Williams,   429. 
Richards  z:   Holmes.   272. 
Richards  z'.  McClelland,   558. 
Richards  v.  Miller,  629. 
Richards  v.   Orr,  132. 
Richards  v.   Queens   Proctor,   649. 
Richards  f.  Richardis,  186,  187. 
Rirhnr'^s   z:    Rose,    440. 
Richards   :'.    Shears,    125. 

xcix 


TABLE   OF   CASES    CITED. 


[References  arc  to  Sections.^ 


Hichatds  f.   Thompson,  273. 

Richarilson    :.    Haird.    044 

Kuhaidson   f.    Baker,   221. 

Riclurtlson    t.    Bigelow,    606. 

KicliardNon  t.    Borden,   13. 

KKliardson    :.    CambridRe,   502. 

Richardson    :.    Clements,    430. 

Richardson    ;■.    CopeUind,    15. 

Richardson  t.  De  Giverville,  70. 

Ritli.rdson    t.    l>orr.   013. 

Rich.iri!son   t.    Hildreth.   24«. 

Richardson   x.    Hunt,    404. 

Richardson   t.    Inglesby,    373. 

Rithaitbon  :  .  l.andridge,  164. 

Richaid>on   r.    Palmer,   681. 

Richardson    ':    Pond.    443. 

Richardson    i'.    Skolfield.    87. 

Richardson   i:   Tobey.   40u. 

Richardson   :.    Vt.   Cent.    R.    R.   Co..    448. 

Richardson    t.    Wallis,    24(>. 

Richardson   -.    Wheatland,    306,   321. 

Richardson   ;-.    Woodbury,   233. 

Richardson   t.    VVyman,   97. 

Richardson    t.    Young,    247. 

Richcson    :■.    Richeson.    583. 

Richey    !      Brown,    189. 

Ri'.'hman    f.    Lippincott,    42. 

Richmond  Manuf.  Co.  v.  Atlantic  De- 
laine   Co.,    444. 

Richmond  R.  R.  Co.  r.  Louisa  R.  R.  Co., 
456. 

Richtcr  f.   Richter,   207. 

Rickett   I-    Madeira,   254. 

Rickctts    V.    Louisville,    404. 

Ricks    ;■.    Pope,    34. 

Ricks  t.    Pulliam,   613. 

Rico  Reduction,  etc.,  Co.  v.  Musgrave, 
190. 

Riddell   r.    Riddell.    86. 

Riddle  i:  Brown,   468. 

Riddle   :.    Cutter,    362. 

Riddle   f.    Littlefield.   133,   606. 

Rider   -•.    Hulsc,    84. 

Ridet   r.    Kidder,   367. 

Rider   -•.    March,    186. 

Ridgley  r.  Abbott   Min.   Co.,  276. 

Ridgley   v.    StilKvell,    164. 

Ridgeway    v.    Hannum,    169. 

Ridgway   v.    Masting,    97. 

Ridgway    v.    Mc.Mpine,    101. 

Riccke  ?■.   Westenhoff.   126. 

Riehl  !■.   Evansville  Foundling  Ass'n,  368. 

Rife   f.    Geyer.    322.    370. 

Rifener   i:    Bowman,    554. 

Ricden  v.  Vallier,   176. 

Riegan   •<:   Green,   556. 

Riggin  f.   Love,  609. 

Riggs   T.    Fisk.    557. 

Riggs    f.    Fuller,    .504. 

Riggs  -.  Girard.   504. 

Riggs   7-.    Palmer.    639. 

Riggs    f.    Sterling.    126. 

Right  f.   Darby.    164. 

Righter   v.    Forrester,   583. 

Righter   v.    Winters,    615. 

Riglcr   V.    Cloud,    79. 

Riker   v.    Darkey,    195. 

Riley  r.   Pettis   County.   168. 

Rindge  r.    Baker,   450. 

Rinehart   v.   Olivine.   160. 

Rines    V.    Mansfield,    609. 


Ring    V.    Billings,    606. 

Ringgold    f.    Bryan,    217. 

Kingo   7.    Woodruflf.    492,    497. 

Kipka    1'.    Sergeant,    295. 

Ripley   ?'.    Wightman,   151. 

Kipperdon    '•.    Cozine,    219. 

Rising   V.    Rising,    414. 

Rising    T'.    Stannard,    103. 

Ritch   V.    Hanxhurst,    480. 

Ritger    v.    Parker.    275,    427. 

Ritter  v.    Phillipps,   i;53. 

Kivard   r.    Walker,   501,    577. 

Rivin   I'.    Watson,    401. 

Roach    V.    Dance,    299. 

Roarty  5^   Mitchell,    278,  570. 

Robb    r.    Brewer,    120. 

Robb  f.   VV'ashington  &  Jefferson   College, 

379,    G31. 
Robbins  v.   Eaton,   557. 
Robbins   r.    Moore,    521. 
Robbins  Ex'r  v.   Robbins,  30. 
Roi)ers  v.  McCord,  443. 
Roberson    v.    Tippih,    121. 
Roberts  t'.    Bourne,   582. 
Roberts    v.    Cooper,    559. 
Roberts  v.    Craft,    213. 
Roberts   v.    Crofty,    213. 
Roberts  v.   Dauphin    Bank,   15. 
Roberts   v.    Fleming,    269,    279. 
Roberts   v.    Karr,    601. 
Roberts  v.    Littlefield,   247,   498. 
Roberts   v.    Morgan,    498. 
Roberts    v.    Phillips,    633. 
Roberts  v.    Robinson,    126. 
Roberts   v.    Rose,   217. 
Roberts  7'.    Salisbury,  217. 
Roberts   v.    Smith,    498. 
Roberts  v.   Sutherlin,   243. 
Roberts   f.    W'are,    367. 
Roberts    v.    Welch,    247,    633. 
Robertson   f.   Campbell,   246. 
Robertson   v.    Morvell,   202. 
Robertson    v.    Newman,    574. 
Robertson    v.    Norris.    69,    278. 
Robertson    i\    Stark,    236. 
Robertson    f.    Tippie.    126. 
Robertson    r.    Woodhouse,    578. 
Robeson    r.    Dunn,    240. 
Robie   V.    Flanders,    85,   101. 
Robins   v.    Coryell,    632. 
Robins  z'.   Eaton,   557. 
Robinson    v.    Adams,    404. 
Robinson  f.   Bates,   97. 
Robinson    v.    Bishop,    640. 
Robinson   v.   Codman,   79,   86. 
Robinson    v.    Coffin,    441. 
Robinson    v.    Cropsy,    231. 
Robinson   v.    Cullom,   279. 
Robinson  v.   Deering,   152. 
Robinson    v.   Douthit,   512. 
Robinson   v.    Downing,    504. 
Robinson    v.    Eagle,    187. 
Robinson   v.    Edw.    Clay    R.,    233. 
Robinson  v.   Female  Orphan  Assy.,  301. 
Robinson    v.    Gould,    578. 
Robinson   v.    Hall,   157. 
Robinson  v.  Hardcastle.   414. 
Robinson    7a    Kinne,    497. 
Robinson   v.   Lakeman.   79. 
Robinson    v.    Litton,    265. 
Robinson  v.  McWhirter,  217. 


TABLE   OP    CASES    CITED. 


[References  arc  to  iicctions.] 


Robinson   v.    Miller,    115,    296. 

Robinson  v.  Moore,  596. 

Robinson    v.    Perry,    139. 

Robinson   v.    Pett,    384. 

Robinson    r.     Phillips,    497. 

Robinson   v.    Russell,    265. 

Robinson   v.    Ryan,    278. 

Robinson   f.    Sampson,    257. 

Robinson   v.   Shuler,   16. 

Robinson  v.   Sweet,   495. 

Robinson    i:    Thrailkill,    430. 

Robinson  !■.   Urqhart,  257. 

Robinson    v.    White,    597. 

Robinson  v.  Williams,  217,  263. 

Robinson  v.   Willoughby,  229,   585. 

Robinson    v.    Wordman,    493. 

Roby  V.   Calumett,    504. 

Roby   V.    Newton,    62. 

Roche   V.    Nason,    631,    637. 

Rochester  !•.    Rochester,   456. 

Rockes   V.    Young,    596. 

Rockhill   -■.    Spraggs,    566. 

Rockingham   t'.    Peurice,    55. 

Rockwell  f.    Baldwin,   595. 

Rockwell    z:    Hobby,    215. 

Rockwell    V.    Rockwell,    100. 

Rockwell    V.    Servant,    247. 

Rockwell   r.    Swift,   304. 

Rodenfels  v.    Schumann,  298. 

Rodgers   v.    Rawlins,    522. 

Rodgers  v.   Rodgers,  68. 

Rodriguez  v.    Hayes,    250. 

Rodwell    V.    Phillips,    563. 

Roe   V.    Baldwere,    43,    298. 

Roe  V.   Bedford,   321. 

Roe  V.   Galliers,   140. 

Roe  V.  Griffiths,  305. 

Roe  V.   Popham,  329. 

Roe   V.    Redner,    447. 

Roe  V.   Sales,   139. 

Roe  V.    Strong,    2. 

Roe   V.    Tranmarr,    567,    588. 

Roe  V.   Vingut,   399,   640. 

Roe  7:    York,    554. 

Roebke   v.    Andrews,    498. 

Roffey  V.  Henderson,  466. 

Rogers  j'.   .\shland  Sav.   Bank,  123. 

Rogers  v.  Brokaw,  15. 

Rogers    v.    Gary,    576,    577. 

Rogers  v.   Cox,   5. 

Rogers  v.    Eagle  Fire   Ins.   Co.,  545,   549. 

Rogers  v.   Graham,   307. 

Rogers   Z'.    Grazebrook,    244. 

Rogers  v.   Grider,   183. 

Rogers   t.    Humphreys,    245. 

Rogers    ?■.    Hussey,    583. 

Rogers  Loc.   Works  v.   Kelly,  361. 

Rogers  t.   Lomax,  247. 

Rogers  v.  Ludlow,  73. 

Rogers   f.    Mayes,    126. 

Rogers   r.    Miller,    186. 

Rogers  v.   Myers,   290. 

Rogers  i:   Portland  &  B.  St.  Ry.,  609. 

Rogers  v.  Portland  Co.,  510,  511. 

Rogers   z'.    Prattville,    15. 

Rogers   z:    Ragland,    123. 

Rogers  z\   Sawin,    433. 

RoBcrs   7'.   Taylor,    448. 

Rogers  t'.    Tomkins,   569. 

Roo-ers  z:  Traders'    Ins.   Co.,   256. 

Rogers  V.  Trust  Co.,  302. 


Rogers   v.   Tyler,   659. 

Rogers    V.    Walker,    556. 

Rogers    v.    Woodbury,    9. 

Rogers   r.    Woody,    97. 

Rogerson   z:    Shepherd,    429,    439. 

Rohn    V.    Harris,    195,    197. 

Rohrer   v.    Stetman,    631. 

Roland    v.    Coleman,    403. 

Rollings   z;    Evans,    122. 

Rollins  z:    O'Farrell,    127. 

Rollins  z:   Riley,  207. 

Roman  v.   Taylor,   151. 

Rona  V.   Meier,    298,    408. 

Rood    V.    Chapin,    585. 

Rood   z:    Walson,    408. 

Roof   z:    Stafford,    556. 

Roosevelt  v.    Fulton,   471. 

Roosevelt   v.   Gardiner,    662. 

Root   z:    Bancroft,    286. 

Root  V.   Wheeler,  278. 

Roper   V.    Halifax,    405. 

Roper   v.    McCook,    217,    221. 

Ropeson    Z'.    Pittinger,    443. 

Ropps   z:    Barker,    15. 

Rose    V.    Drayton,    649. 

Rose   v.    Hatch,    349,    373. 

Rose  z:    Hayden,   3(iS. 

Rose  zi.    Porter,   373. 

Rose   I'.    Ware,    558. 

Rosearrick  z:   Barton,   225. 

Roseboom    v.    Roseboom,    40. 

Roseboom   -'.   Van   \"echton,   46. 

Roseburg's  Ex'rs  z\  Sterling's  Heirs,  558. 

Rosenblatt   z:    Perkins,    134. 

Ross    V.    Adams,    322,    388. 

Ross  V.   Barclay.  410. 

Ross    z'.    Campbell,     577. 

Ross   z'.    Cook,    563. 

Ross  V.    Drake,   301. 

Ross   V.    Dysart,    144,    618. 

Ross  V.  Garrison.   163. 

Ross  V.    Heintzen,   219. 

Ross   z:    Ilellyer,    127. 

Ross    z'.    Roberts,    376. 

Ross  z:   Swaringer,    160. 

Ross    z:    Tremain,    206. 

Ross  z:   Turner,   614. 

Ross    -'.    Worthington,    573. 

Rosser  z:  Franklin,  632,  633. 

Rossetter   z-.    Simmons,    575. 

Roth   z:   Adams,    143,    152. 

Roth  Tool  Co.  v.  Champ  Spring  Co.,  163, 

168. 
Rothschild    z:    Lumber    Co.,    265. 
Roth  well  V.   Dewees,  187. 
Roulhac   V.   Jones,   246. 
Roundtree  f.   Dennard,  122. 
Roundtree  v.  Roundtree,  301. 
Roundtree  r.   Lane,   193,  511. 
Routledge  z:    Dorvil.   312. 
Rowan  z'.   Sharpe's  Rifle   Co.,  263,  269. 
Rowbotham    z'.    Wilson,    448. 
Rowe    v.    Beckett,    567. 
Rowe  ?■.   Granite   Brdg.    Corp.,   599. 
Rowe   z:   Hamilton,    97. 
Rowe  z:   Heath,  622. 
Rowe    f.     Tohnson,    111. 
Rowe  z:   Williams.    148. 
Rowe   z:    Wood.   24«. 
Rowell  z:   Klein.   59. 
Rowland  f.    .Anderson,   9. 

ci 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Rowland  r.   Murphy,   180. 

Kowlanil  t.   KowUnil.  ;;<»4,  304. 

Rowland  :•.  Warren,   45. 

Rowlands   t.    X'oecliling,   160. 

Rowley  t.   Brown,  278. 

Kowton   f.    Rowton,   87. 

Roxbury    f.    Stoddard,    i. 

Roy  t.   Clark,   lib. 

Roy   t'.   Garnett,  3°J1. 

Royal  t.   .\ultman  Taylor   Co.,   207. 

Royall  I.   Lisle,    4U5. 

Royce   t.   Guggenheim,    153. 

Royer   r.    Ake,    115. 

Royston   f.    Royston,    197. 

kubcy    :.     Barnett,     401. 

Uubcy   ;.    Huntsman,    532. 

Rucker   :•.    Lamdin,   634. 

Ruckman   v.   .\stor,  267. 

Ruckman    v.    Outwater,    16. 

Ruckman  :-.    R«ickman,   577. 

Rucks   :.    Taylor,    273. 

Rudd  t.  Peters,   74. 

Rudd   t .    Van   Der   Hagen,  370. 

Rudisiles    ;'.    Rodes,    64U. 

Kuttati  f.   Socicte  des   Mines,   468. 

Ruffin  V.  Overly,  491,  495. 

Rulfin  t.   Womack,   231. 

Rugglcs    f.    Barton,    250. 

Kuggles  f.   Clare,  201. 

Kungles  !■.   Lawson,   578. 

Ruggles   V.   Lesure,   465. 

Kuggles    -'.     Williams,    233. 

Rule   f.    Maupin,    637. 

Kumfelt  V.   Clements,   558. 

Rumpk   v.    Gerkins,    242. 

Rundell  v.  Lakcy,  617. 

Kunke   ?•.    Hanna,    96. 

Kunkle   :.    Gates,   645. 

Runnels    i:    Webster,  ^16. 

Kunyan    v.    Mersereau,    226. 

Rupp   V.    Eberly,    388. 

Russ   V.    Perry,    616. 

Russ   V.    Steele,   618. 

Russell  :.   Allard,   157. 

Russell   V.   Allen,   245. 

Russell   f.    Blake,   269. 

Russell    ;•.    Branham,    575. 

Russell   r.   Clark's   Exrs.,   368. 

Russell   V.    Davis,    497. 

Russell  f.    Dodson,   217. 

Russell  V.   Erwin,  157. 

Russell    V.    Eubanks,    408. 

Russell    V.    Fabyan,    152. 

Russell  V.  Falls,  633. 

Russell  v.   Gunn,   275. 

Russell    f.    Hubbard,    467. 

Russell  f.   Lewis,   380. 

Russell  f.  Maloney,  490,  497. 

Russell    V.    McCartney,    130. 

Russell  i:   Mixer,  257. 

Russell  V.  Richards,  9. 

Russell   f.    Rumsey,   524. 

Russell  r.   Russell,  213,  367. 

Russell  :•.  Shields,  259. 

Russell    f.    Southard,    228,    233. 

Russell  V.   State   Nat.   Bank,   52. 

Russell    V.    Switzer,   373,    374. 

Russell  T-.  Waite,  229. 

Rutherford    v.    Carr.    579. 

"••therford  »•.  Greene,   30. 

Rutherford   v.    Rutherford,    633. 

cii 


Rutherford  v.   Williams,   278, 
Rutland  f.    Brister,    219. 
Ruyter    v.    Reid,    273. 
Kyan  v.  Allen,  321,  640. 
Ryan    f.    Brown,    598. 
Ryan   i.    Box,    365,    368. 
Kyan   f.    McGehu,    247. 
Kyan   t'.    Newcomb,    255. 
Ryan  r.   United   States,   511, 
Ryder    v.    Innerarity,    530. 
Kyerson    v.    Quackenbush,    149. 

S 

Sackett  z:   Sackett,   68. 

Sadler  r.   Hubphines,   480. 

Sadler    v.    Pratt,    414. 

Safford  z:   Safford,  291,   296. 

Sage   I'.    Gloversviile,    300. 

Sailer  v.  Sailer,  191. 

Saines    i'.    .Mien,    279. 

Saint    z:    Cornwall,    242. 

St.    John    z:    Benedict,    329. 

St.    John    ;'.    Conger,    584. 

St.    John    V.    Palmer,    153. 

St.    Louis   z'.    Bissell,    624. 

St.  Louis,  etc.,   Ry.  Co.  !■.  Pratlier,  186. 

St.    Louis,   etc.,    Ky.    Co.   z:    Ramsey,    591. 

St.    Louis,   etc.,    R.    R.   f.    Schneider,    444. 

St.   Louis  Hospital   "'.   Williams,   (>:;■,'. 

St.    Louis    I.   M.  &  C.   R.   R.   Co.   ;.   Rud- 

dclf,     578. 
St.    Louis    Land    Ass'n    z'.    Fueller,    33. 
St.    Louis    Nat.    Stock    Yds.    v.    Wiggins 

Ferry,   4C7. 
St.    Pat.    Catholic   Ch.   v.   Daly,   307. 
St.    Paul    V.    Viscount    Dudley    &    Ward, 

242. 
St.  Phillips  Church  z:  Zion  Presb.  Church, 

148. 
.Sale   f.    Thornsberry,    373. 
Salem    r.    Edgerly,    283. 
Salis   z:    Davis,    170. 
Salisbury  v.  G.  N.   Ry.  Co.,  601. 
Salisbury   z:    Phillips,   236. 
.Salisbury  r.    Shirley,    139,    143. 
Salley  :■.  Robinson,  17. 
Salmon  z\   Claggett,   265. 
Salmon  z\  Hoffman,  217. 
Salmon   z\   Smith,   131. 
Salmon    z:    Vallejo,    614. 
Saltmarsh   v.    Smith,    85. 
Sammes  v.  Payne,  99. 
Sammis   z:    Sammis,    86. 
Sample  z:   Sample,   195. 
Sampson   z:   Easterly,   147. 
Sampson  z:  Grimes,  149. 
Sampson   z:    Haddinot,    444,    447. 
Samuel   z\    Borrowscale,    495,    581. 
Samuels   "'.    Armstrong,    444. 
Sanborn  z:   Clough,   590. 
Sanborn    r.    Hoyt,    608. 
Sanborn   z:   Magee,    233. 
Sandback    z:    Quigley,    111. 
Sanderlin   z:    Baxter,    432. 
Sanders   z'.    Cassaday,   250. 
Sanders    v.    Logue,    497. 
Sanders  f.  McAffee,  218. 
Sanders  z'.  Partridge,  139. 
Sanders    v.    Reed,    265. 
Sanderson  v.   Price,  243. 


TABLE    OF    CASES    CITED. 


[References  are  to  Sections.] 


Sanderson   v.   White,    611. 

Sand  ford   v.    Blake,    301. 

Sands    v.    Beardsley,    581. 

Sands  v.  Hughes,   139. 

Sandwith   v.    De   Silver,   626. 

Sane   v.    Tyler,    185. 

Sanford    v.    Harney,    168. 

Sanford   v.    Kane.    255,   277. 

Sanford  v.   McLean,   85,   99. 

Sanford    v.    Travers,    623. 

Sanford    f.    V'anarsdale,    242. 

San    Kiancisco    v.    Fulde,    504. 

Sanlet  ;•.    Shepherd,  487. 

Sansberry   v.    Sims,    1:^3. 

Santee    f.    Keefe,    2^,    285. 

Sargent  z:  Ballard,  429. 

Sargent    V.    Howe,    2s3. 

Sargent  v.   Parsons,  101. 

Sargent    v.    Smith,    172. 

Sargent  :•.  Sturm,  583. 

Sarles    z\    Sarlcs,    57. 

Sartill    V.    Robeson,    79. 

Sasser  z:    Sasser,   367. 

Satterfield    i'.    John,    376. 

Satterwhite   f.    Rosser,    493. 

Saunders    z:    Edwards,    362. 

Saunders    v.    Evans,    416. 

Saunders   v.   Farmer,    498. 

Saunders   v.    Frost,    246. 

Saunders  v.  Newman,  435. 

Saunders  z'.    Partridge,    139. 

Saunders  :•.   Saunders,  98. 

Saunders    f.    Schmadgle,    378. 

Saunderson    t'.    Bradwell,   373. 

Sauter  v.  Muller,  894. 

Savage  v.    Dooley,   87. 

Savage  v.  Hall.  242,  258. 

Savile    v.    Blacket,    405. 

Saville  V.    Saville,    54. 

Sawyer  v.   Kendal),   501. 

Sawyer  v.    McGillicuddy,   146. 

Sawyer  v.   Peters,  518. 

Sawyers    v.    Baker,    278. 

Sawyers    v.    Cater,    199. 

Saxton    V.    Hunt,    496. 

Scales  V.  Mande,   373. 

Scanlan  v.   Cobb,   556. 

Scanlan   v.  Turner,   97. 

Scanlan  r.   Wright,   581. 

Scarborough  v.   Borman,   73. 

Scattcrwood   z'.    Edge,  308. 

Schaffer   v.   Kellell,   642. 

Schaffer   v.    State    Bk.,    435. 

Schallard  v.   Eel   River  Co.,  272. 

Schanerrner   v.    Lissaner,   257. 

Schebrcde  v.    State   Land   Board,   521. 

Schedda  v.  Sawyer,  521. 

Schcibc   V.    Kennedy,    272. 

Scheifele   v.    Schmitz,    13. 

.Schell    V.    Simon,    160. 

Schell  v.   Stein,  581. 

Schenck    v.    Conover,    272. 

Schenck    v.    Ellingwood,    417. 

Schenck    v.    Evoy,    593. 

Schepplcman  v.  Fuerth.  253. 

Schermerhorn    v.    Mahaffie,    126. 

Schermcrhorn    v.    Myers,    204. 

Schettler    v.    Smith.    899. 

Scheuber   v.    Hallow,    127. 

Schiefclin  v.  Carpenter,  156. 

SchiefTerstein  v.  Allison,  606. 


Schilling    z:    Holmes,    152. 

Schlaefer    v.    Corson,    368. 

Schlawig  t'.    Fleckenstein,   260. 

Schlemmer   v.    Schlemmer,   76. 

Schlencker  v.   Moxsy,  623. 

Schlessenger  z'.  Mallard,   375,   498. 

Schley   v.    Fryer,    253. 

Schlicher    v.    Keleer,    577. 

Schmidt  v.  Hoyt,  260. 

Schmitt  V.  Giovanari,   567. 

Schmitt   V.    Willis,    90. 

Schnebly  z\    Ragan,   217. 

Schneider  v.   Koesler,   647. 

Schneider   v.    Lord,    134. 

Schneider  z:   Mo.    Pac.   R.    R.   Co.,   445. 

Schneider  v.    Reed,   233. 

Schneider   v.    Setters,    561. 

.Schneiner    z'.    Smith,    204. 

Schnell  v.  Stein,  584. 

Schuyler   v.    Smith,    170. 

Schofield   z:    Homestead    Co.,   614. 

Schofield    V.    Walker,    637. 

Scholl    v.    Olmstead,    410. 

J-cholle    V.    Scholle,    368. 

School  Committee  of  Prov.,  etc.,   v.  Kels< 

lar,   575. 
School  District  Z'.  Benson,  507. 
School    Dist.    I'.    Lynch,    495. 
Scliooley    v.    Remain,    272. 
Schoppel  r.   Daly,   161. 
Schrecongost  v.  VVest,  562. 
."•(.liroeder  z:   Bohle,  642. 
Sjliroeder  Z'.   Gurney,   583. 
.Sliubert  v.   Eastman   Realty   Co.,   205. 
Schult   V.    Moll,    80,    80. 
S:hultz  r.  Meade,  276. 
S.'humacher    z\    Schmidt,    644. 
.'■chumacker    z:    Reel,    641. 
Sc'iutt    v.    Meth.    Epis.    Missionary    Soc, 

C53. 
Srhuylkill   Co.   v.   Thoburn,   239. 
Schuylkill,    etc.,    R.    R.    z:    Schmoele,   144. 
Schwartz   v.    Sears,   278. 
Schwoerer  f.   Connolly,    148. 
Scituate   v.    Hanover,    373. 
Scofield  V.  Olcott,  301. 
Scott    V.    Ash  1  in,    108. 
Scott   V.    Bentel,    432. 
Scott   V.    Cheatham.    429. 
Scott    V.    Elkins,    493. 
Scott   V.    Fields,    236. 
Scott    V.    Freeland,    279. 
Scott   V.    Frink,   254. 
Scott  V.  Guernsey.  84,  190. 
Scott  V.  Hancock.   104. 
Scott  v.  Henry.   231. 
Scott   V.   Lunt.   147,   460. 
Scott  z'.   Magloughlin,  253. 
Scott   V.    McFarland.    247. 
Scott  z'.    Purcell,    558. 
Scott   V.    Rand.    376. 
Scott  V.   Scarborough.  372. 
Scott  V.   Slaughter.    139. 
Scott   V.   Turner.    251. 
Scott    7'.    Wharton,    265. 
Scott    V.    Willis,    168. 
Scranton   v.    Phillips,   448. 
Scrivner    i'.    Dietz,    242. 
Scrivner   v.    Smith,    618. 
Scruggs    I'.    Brackin,    612. 
Scrugham   v.    Wood,    677. 

ciii 


TABLE   OF   CASES   CITED, 


[References  arc  to  Sections.] 


Scull  V.    Preiden,  592. 

Scult  f.   Reeves,   373,   377. 

Seals   V.    Pierce.    543.   631. 

Searing  t'.    Uenton,   253. 

Sears   ;.    Boody,    019. 

Sears  v.   Ui.xon.  x'31. 

Sears   t:    Kiis:icll,   30,   298. 

Seat  t'.   Knight,  'Hi. 

Sealon   f.   Jamison,    113. 

Scaton    f.    Troy  ford,    ;;72. 

Seavcr    r.    l)urant.    S'IC. 

Seaver  f.  Phelps,  u.'tJ. 

Staves   I-.    l-itzgerald,   312. 

Seaward    v.    W'iMock,    304. 

Seawcight  t.   Parmer,   247. 

Second   Nat.    Hank  f.    Merrill   Co.,   18. 

Sccor    V.     Pcstana,     167. 

Security    Co.    i:    Hardenburgh,    301,    308. 

Sedgewick  v.  HoUenbcck,   Cla. 

Sedgwick  v.  Laflin,  277,  418. 

Sedman  f.   Sanders,  243. 

See   :•.    Browder,   307. 

Seegar  z:    Pettit,   16. 

SecmuUcr    f.    Thornton,    494. 

Schom    f.    McWhirtcr,    221. 

Seibel   f.    Purchase,   220. 

Seiberling   v.    Miller,    13. 

Seibert    :■.    Burton,    397. 

Seibcrt    f.    Todd,    87. 

.Seidcrs    f.    Giles,    195,    299. 

Seitz  V.  People's  Sav.  Bk.,  595. 

Selby    t'.    Alston,    379. 

Selden  v.  Del.  &  Hud.  Canal  Co.,  465. 

Selden  f.   Vermilya,   371. 

Sellers    z:    Stalcup,    231. 

Sellman  v.    Bowen,    113. 

Sells  V.    Delgado,   410. 

Semmes    i.    Wheatlcy,    123. 

Scmple  V.  Bird,  260. 

Semple    v.    Burd,    217. 

Sennett  v.    Bucher,   131. 

Sentner  v.   Tees,   445. 

.Senter    t:    Turner,    585. 

Serrin    v.    Grefe,    591. 

Serry  v.  Curry,  85,   114. 

Scton  V.   Slade,   234. 

Scttembro  v.  Putnam,  368. 

Severance   7'.    Griffitt,    250. 

Sexton    !■.    Chicago    Storage    Co.,    139. 

Sexton  V.  Wheaton,  566. 

Seymour  f.  Courtney,  608. 

Seymour  r.    Darrow,    230. 

Seymour   v.    Davis,   255. 

Seymour    v.    Freer,    498. 

Shackleford  z:  Bailey,  593. 

Shadden   -•.    Hembree,   30i,   392. 

Shaddinger   z:    Fisher.   83. 

Shader    z:    McCormick,    4. 

Shaeffer    z:    Chambers,    246. 

Shaeffer  -•.   Klec,   371. 

Shafer    z:    Wilson,    448. 

ShaflFer  i:   Corbctt,   634. 

Shaffer  r.    Hahn,   125. 

Shaffer    f.    McCloskey,    242. 

Shaffer  v.  State  Bank,  435. 

Shall    V.    Ciscoe,    217. 

Shall    V.    Stagg.    219. 

Shamp  J'.  Meyer.  253. 

Shanahan  ;•.   Shanahan.  172. 

Sh-ne    r-.    M-Vcill.    117. 

Shance  Co.  Com.  z:  Topeka  Equip.  Co.,  2. 

civ 


Shanks    z'.    Lucas,    521. 

Shanks   z:    Mills,    301. 

Shannan    v.     Hay,    278. 

Shannon   v.    Bradstreet,   417. 

Shannon    v.    Burr,    139. 

Shapleigh  z:  Pilsbury,  543. 

Shapley  v.   Diehl,  321. 

Sharkey  v.  Sharkey,  229. 

Sharon  Iron  Co.  z'.  City  of  Erie,  208,  827. 

Sharp   z'.    Brandon,    494. 

Sharp    V.    Pettit,    112. 

Sharp    V.    Wallace,    650. 

Sharpe  v.  Goodwin,  368. 

Sharpc  z'.  Kelly,   157,   163. 

.Sharpe    v.    Scarborough,    278. 

."sharply   v.    Jones,    85. 

Sliarpsteen   z:   Tillon,   407. 

Sliattuck    z>.     Bascom,    233. 

Sliaumberg   z:    Wright,    554. 

Shaver   :•.    McCarthy,   637. 

Shaw   :•.   Beebe,    515. 

Shaw  -■.   Barksdale.   238. 

-Shaw   z:    Boyd,    117. 

Shaw    7'.    Breeze,    473. 

Shaw    -■.    English,    385,    386. 

Shaw    z:     Farnsworth,    136. 

.Shaw   z:    Hayward,    579. 

.Shaw  z:   Hearsey,   181. 

Shaw  z:   Hill.  128. 

^  haw   V.    Hoadley.   243,   281. 

Sliaw   V.    Loud,    562. 

Shaw    z:     Norfolk,    272. 

Sliaw    7'.    Partridge,    69. 

Shaw  z:   Poor,  581. 

S'law  z:   Read,  367. 

.Shaw    z:    Russ,    97. 

■■haw  f.    Shaw,   367. 

.Sliaw    v.    Spencer,    366. 

'nw  z'.   Weigh,    322,   371. 
Shawe   z:    Cunliffe,    388. 
Shea   ?■.   Ollovue,   441. 
Shea    z:    Tucker,    367. 
Sheaflfe    v.    O'Neil,    108. 
Shealey  i'.   Wammock,   37. 
Shearer  z:   Ranger,    617. 
Shearer   v.    Shearer,    185. 
Shearer  j'.  Winston,  194. 
Sheckell   z:    Hopkins,    235. 
Sheddy   t.    Gervan,   257. 
Sheeburn    z'.    Jones,    59. 
Sheehan    v.    Allen,    195, 
Sheer   z:    Fisher,    146. 
Sheets   r.    Grubb,    642. 
Sheets   z'.    Selden,    143. 
Sheffield  v.    Lovering,  479. 
Sheffield    v.    Orrery,    313. 
Shehan   v.    Rarnett,    528. 
Shelby    v.     Shelby,     471. 
Shelden    z\    Erskine,    576. 
Sheldon  z:  Hofnagle,  94. 
Sheldon    v.    Patterson,    273, 
Shell    V.    Stein,    259. 
Shelley    z:    Wright,    512. 
Shelton   ?■.    Armor,    572. 
Shelton  z:  Aultman  Taylor  Co.,  126,  674. 
Shelton    z:    Carroll,    103. 
Shelton    z:    Codman.    147. 
Shelton    v.    Hall-rk,    r,o. 
Shelton  v.  Wilson.   17S.  188. 
Shepard  z:    Ad'im''.   285. 
Shepard  v.  Manhattan  Ry.  Co.,  85. 


TABLE   OF    CASES   CITED. 


[References  are  to  Sections.] 


Shepard   v.    Spaulding,    156. 

Shepard   v.    Taylor,    478. 

Shepard's  Heirs  v.   Sliepard's  Estate,   040. 

Shephard   f.    Shephard.    399. 

Shepherd    :•.    Ingram,    388. 

Shepherd    v.    Jennigan,    593. 

Shepherd  v.  Little,  329. 

Shepherd    z:    May,    253. 

Shepherd  v.   McEvers,   373,   377. 

Shepherd    :■.    Pepper,    276. 

Sheppard  r.  Comm'rs  of  Ross  Co.,  530. 

Sheppard    r.    Murdock,    247. 

Sheppard   z:    Pratt,    247. 

Slieralz   v.    Nicodcnuss,    219. 

Sheridan  f.    Forsee,     161. 

Sheridan  v.  Welch,  247. 

Sherman    v.    Abbott,    242. 

Sherman  v.    Champlain   Transp.   Co.,    158. 

Sherman   z\   Dodge,   361. 

Sherman   ?•.    Kane,   498,   504. 

Sherman   z\   McKeon,   601. 

Sherman   z:    Williams,    144,    153. 

Shcrrcd  z:   Cisco,  450. 

Shcrrer    f.    Harris,    233. 

Sherwood   z:    Barlow,    547. 

Sherwood   z\    Saxton,    282. 

Shield    J'.    Batts,    85. 

Shields  z:    Lozear,   157.    254. 

Shields    v.    Riopelle,    276. 

S-iields   r.    Roberts,    497. 

Shields   v.    Stark,    190. 

Shiell    v.    Sloan,    85. 

Shin  z'.   Fredericks,  242,  258. 

Shine    v.    Wilcox,    62. 

Shinn    v.    Shinn,    181. 

Shipley   -■.    Fox,    242,   257. 

Shipley    f.    Institute,    194. 

Shipley   z:    Smith,    74. 

Shinman   z\    Horton,    556,   557. 

Shipman   z:   Mitchell,   164. 

Shipman  j'.    Shipman,   198. 

Shippen's  Heirs  f.   Clapp,  407. 

Shirkey    z:    Hanna,    274. 

Shirley  v.    Ayres,   578. 

Shirley    z:    Clark,    31. 

Shirley    "■.    Fearne,    673. 

Shirley  r.   Shirley,   105,   348. 

Shirley   r.    Sugar   Ref.    Co.,   217. 

Shirras  f.  Craig,   236,  605. 

Shirtz   V.    Shirtz,    112. 

Shirtz  z:  Dieffcnback,  215. 

Shively    v.    Jones,     273. 

Shivers  z\   Simmons,   97. 

Shoemaker    z:    Smith,    236,    367. 

Shoemaker  v.   Walker,  86,  87. 

.Shoenberger  v.   Hackman,  579. 

Shocnberger    t'.     Zook,    576. 

Shoot  V.  Galbreath,  100,  119. 

Shore  r.   Wilson,   590. 

SHorce  r.    Doherty,   236. 

Short  t'.   Currier,   509. 

Short  z:    Fogle,   260. 

Shortall  z:   Hinckley,    569. 

Shorter   z:    Frazer.    218. 

Shorfridge  z:   Catlett,  572. 

Shotwell  V.   Harrison,   582. 

Shotwell   V.    Smith.    245. 

Shrunk  V.  Schuykill   Co.,  6M. 

Shryock  ?'.  Waggoner,  583. 

Shubcrt   I'.   Standley,   235. 

ShuiHeton  v.   Nelson,   604. 


Shulenberg  -•.    Harriman,   207. 
Shuler   f.    Bonander,    267. 
Shults   z:    Moore,    581. 
Shumway  z:  Collins,  154. 
Shurtz    z:    Thomas,    100. 
Shute   V.   Grimes,   243. 
Sibley  f.   Holden,   601. 
Sicard  v.  Davis,  493,  571. 
Siddons  r.    Cockrell,   204,   301. 
Sidway   v.    Sidway,    105. 
Sidwell    V.    Wheaton,    253. 
Sieger   V.    Sieger,    191. 
Siemon   z:    Schurch,    367,    583. 
Sigourney    Z'.    Eaton,    179. 
Silkie    v.     Marsh,    42. 
Sill    V.    Sill,    85. 
Sillers   z:    Lester,   238. 
Sillibridge   z:   Adie,   397. 
Silloway    i'.    Brown,    186. 
Silsby    v.    Adler,    166. 
Silsby    z:    Bullock,    637. 
Silsby    z\    Sawyer,    640. 
Silsby    z:    Smith,    266. 
Silva   V.    Campbell,    208. 
Silva    z'.    Rankin,    5. 
Silva    7'.    Wimpenny,    498. 
Silvers  r.  Carary,  301. 
Sim    V.    Everhardt,    557. 
Simers  "■.   Salters,   1^7. 
Simkin    ?■.    .\shhurst,    170. 
Simme's  Heirs  :■.  Simmcs,  195. 
Simmonds   -•.    Sinimonds,    397. 
Simmons    -•.    Coborme,    392. 
Simmons   z:    Havens,    574. 
Simmons    z\    Johnson,    60.). 
Simmons    !■.    Simmons,    577. 
Simms    z\    Harvey,    553. 
Simons   z:    Detroit    Drill    Co.,    163. 
Simons  i'.    Seward,   146,   151. 
Simonton    z:    Gray,    87,    242. 
Simpson  v.   Ammons,    177. 
Simpson    z:    Bowdcn,    20.5. 
Simpson   v.    Cherry,   3o4. 
Simpson    -■.    French,    298. 
Simpson  v.  Mc.Mlister.   217.  218. 
Simpson    z\    Morehead,    157. 
.Simpson   z'.   Mundee,  217,   572. 
Simpson    z'.    Reed,    45. 
Simpson   z'.    Scroggins,    124,    125. 
Simpson   z\    Simpson,    632. 
.Simpson    z'.    Stranghen,    195. 
Sims    I'.    Bardoner,    557. 
Sims    z'.    Conger,    308. 
Sims    z:    Cooper,    158. 
Sims    V.    Hammond,    584. 
Sims    V.    Smith,    557. 
Sims  Z'.   Trome,   521. 
Sinclair  z'.   Armitage,   238. 
Sinclair  z'.  Jackson,   380. 
Sine   r.    Fox,    620. 
Singer  Mfg.  Co.  z:  Rook,  97,  574. 
Singer  Mfg.  Co.  r.  Shull,  260. 
Singleton    v.    Huff,    121. 
Singleton   7'.    Singleton,   104. 
Sinton    V.     Boyd,    301,    322. 
Sire  V.    Wightman,    272. 
Siter   V.    McOanachan,    262. 
Skaggs    z'.    Nelson,    219. 
Skinner  v.   Chadwell,   126. 
Skinner  v.   Chapman,  268. 
Skinner    v,    Fulton,    474. 

CV 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Skinner  v.    Hale.    342. 

Skinner    i'.    Mann,    331. 

Skinner  t.  Miller,  233. 

Skinner  f.    Wilder,   8. 

Skinner   f.    Williams,    505. 

Skipper    t'.    Stokes,    238. 

Skipwith's   Exrs.   i'.   Cunninghan,   373. 

Skul    t'.    Spraker,    258. 

Slate  f.   Schwin,  005. 

Slater  f.    Dangerficltl,  322. 

Slater   t.    Kawson,   012,   t>24. 

Slator    t.    Trimble,    55tj. 

Slattery    v.    Keefe,    125. 

Slattcry  t:    Schwannccke,   586. 

Slaughter   :.    Coke   Co.,    139. 

Slaughter   f.    I'oust,   273. 

Slee  f.  Manhalten  Co.,  238,  277. 

Slice  t.   Derrick,   193,   i\>o. 

Sloan   :.    Campbell,   219. 

Sloan   :■.    McConahy,    340. 

Sloan   t'.    Whitman,    109. 

Sloane   t:    Lucas,    273. 

Slocum    :.    Marshall,    373. 

Slocum  t'.   Seymour,   563. 

Slowey    f.    McMurray,    231. 

Small   ;•.    Field,   373. 

Small    !'.    Kakestrow,    522. 

Small    T'.    Stagg,    217. 

Smalley   «•.    Isaacson,    195. 

Smallman   t'.    Powell,    <(75. 

Smart  v.  Morton,   448. 

Smiley   f.    \'an   VVinkle,   155. 

Smiley    f.    Wright,    87,    100. 

Smith    I'.    .-Xddleman,    105. 

Smith    t.    Allen,    184. 

Smith    -■.    .Nnkrim,     151. 

Smith    r.    Baldwin,    118. 

Smith   f.    Barber,   146. 

Smith    t:    Barker,    462. 

Smith    f.    Barrie,    214. 

Smith    V.    Bartlett,    598. 

Smith  V.   Bell,   52. 

Smith    V.    Black,    282. 

Smith   r.    Blanpied,   432. 

Smith    f.     Bortley,    599. 

Smith  f.   Bowers,   417. 

Smith    t:    Brannen,    207. 

Smith   i:    Brinker,    139. 

Smith    f.    Brown,    480,    590. 

Smith    -•.     Bunton,    558. 

Smith   -■.    Burtis,   491,   492. 

Smith    f.     Butler,    219. 

Smith    V.     Bynum,    256. 

Smith    f.     Chapin,    504. 

Smith  V.   Chapman,   321. 

Smith   I'.    Chopple,    66. 

Smith    V.    Clyfford,    317. 

Smith    r.    Codron,    633. 

Smith     f.     Cole,     193. 

Smith   V.   Columbia    Ins.    Co.,   248. 

Smith   f.    Compton,   622. 

Smith    f.    Davis,    273. 

Smith    V.    Estell,    121. 

Smith   V.    Eustis,  347. 

Smith    V.    Evans,    556. 

Smith    V.     Finger,    522. 

Smith    !•.    Follansbee,    68. 

Smith   V.    Ford,   373. 

Smith   V.    Fox's    Admr.,    640. 

Smith    T.    Frederick,    548. 

Smith  V.   Frost,   S68. 

cvi 


Smiley  v.  Gambill,  645. 
Smith   V.   Gibson,    586. 


Smith 
Smith 
Smith  V 
Smith  I' 
Smith  r. 
Smith  1'. 
Smith  V. 
Smith  V. 
Smith  V. 
Smith  V 
Smith  V. 
Smith  I' 
Smith  J' 
Smith  z: 
Smith  I 
Smith  z 
Smith  V 
Smith  i: 
Smith  V 
Smith  -• 
Smith  T 
Smith  7 
Smith  i: 
Smith  7 
Smith  I 
Smith  7 
Smith  t 
Smith  r 
Smith  J 
Smith  I 
Smith  ! 
Smith  t 
Smith  '< 
Smith  V 
Smith   t 


Gore,    126. 
Goulding,    466. 
Greaves,    590. 
Green,    590. 
Greer,    31. 
Handy,   97. 
Havens,  641. 
HoUoway,   434, 
Hosmer,   493. 
Howdon,    601. 
Howell,    97. 
Hutton,    126. 
Jackson,    184,   496. 
Jewett,   57. 
Johns,    243. 
Johnson,    563. 
Kelly,    254. 
Kendrick,  443,  445. 
Kerr,    126. 
King,    498. 
Lamb,    220. 
L.ingwald,    447. 
Littlefield,  170,  172. 
Manning,   253. 
Mapleback,    139. 
Mathews,    374. 
Mattingly,    127. 
McChesney,   649. 
McDonald,    474. 
McKay,   494. 
,    McLean,    151. 
,    Moodus    Water    Co.,    511. 
.    Newton,    280. 
Niver,    156. 
Parks,   243,    244. 


Smith  V.    Parsons,  625. 
Smith   V.    Patton,    367. 
Smith    t:    Paysenger,    100. 
Smith    V.    Porter,    576. 
Smith   ?'.    Poyas,    62. 
Smith  7'.    Previtt,    596. 
Smith    r.    Price,    14. 
Smith   V.    Prodin,    278. 
Smith   V.    Provin,    277. 
Smith   7'.    Putnam,    140,    429. 
.Smith    V.    Quiggans,    123. 
.Smith    7".    Rec.    Fund    Soc,    641. 
Smith    V.    Rice,    236. 
Smith   V.    Richards,   125. 
Smith  V.   Roberts,   495. 
Smith  i:   Rochester,    2. 
Smith  V.   Runnels,   195,   299. 
Smith    V.    Shackelford,    596. 
Smith    V.    Shattuck,    494. 
Smith   V.    Shepherd,    245,    619. 
Smith    V.    Slocomb,    601. 
Smith    V.    Smith,    63,    640. 
Smith   7'.    Sprague,   617,   624. 
Smith    V.    Stephens,    89. 
Smith    V.    ^tephenson,    368. 
Smith  V.  Stewart,  166. 
Smith    V.    Stigleman,    154. 
Smith   V.   Strong,   614. 
Smith    V.    Surman,    563. 
Smith   V.    Thackerah,    448. 
.Smith   V.    Upton,    197. 
Smiley  v.  Van   Winkle,  139.    • 
Smith   V.   Wait,   645. 
Smith    V.    W^ells,    123. 


TABLE    OF    CASES    CITED. 


[References  are  to  Sections.] 


Smith    v.    Wcstall,    590. 
Smith  I'.    Whitney,   id. 
•     Smither  r.  Willock,   301. 
Smith   f.    Woolfolk,   272. 
Smithwick    v.    Ellison,    16. 
Smolly    V.    Ulrich,    233. 
Smyles  v.  Hastings,   439. 
Smyth  V.  Stoddard,  16. 
Smyth   V.    Sturges,   13. 
Smythe    v.    Brown,    274. 
Smythe   z:    Henry,   158,   515. 
Smythe  v.  North,  140. 
Snape   v,   Turton    Cro.    Car.,    405. 
Snead   v.   Tiejer,    134. 
Snedeker  v.   Waring,  14. 
Sneed   v.  Osborn,   510. 
Snell    V.    Leavitt,    435. 
Snoddy    v.    Kreutch,    497. 
Snoddy   v.    Leavitt,    515. 
Snooks   V.    Wingfield,    595.    605. 
Snow   V.   Orleans,    659,    577. 
Snow   V.    Pressey,    231,    27;i. 
Snow  V.    Stevens,   239. 
Snow  V.  Wormick  Inst.,    246,  272. 
Snowdon   v.    Wilas,    407. 
Snowden    v.    Rush,    495. 
Snyder    v.    Gordon,    146. 
Snyder  f.   Harding,  178. 
Snyder   7:   Jones,    294. 
Snyder  v.  Lane,  617. 
Snyder  v.   Miller,   118. 
Snyder   v.    Riley,    149. 
Snyder  r.    Snyder,   529,   653. 
Soe  V.  Audley,  44. 
Sohier   z;    Coffin,    559. 
Sohier  v.  Eldridge,  56. 
Sohier  ?■.    Mass.   Gen.   Hospital,   524,   626. 
Sohier   z:    Trinity    Church,    528. 
Solberg  v.   Wright,   277. 
Solomon   v.   Fantozzi,   154. 
So'omon  v.  Lawrence,  373. 
Solomon  v,    Vinter's   Co..   449. 
So'omon    v.    Wilson.    238. 
Solt  r.  Anderson,  126. 
Somar  v.   Canady,   8b. 
Somers   v.    Overhulser,    367. 
Somers  i:  Pumphrey,   577. 
Somers  v,   Schmidt,   624. 
.Somerset,   etc.,    Assn.    -;■.    CTnman,   576. 
Somcrsworth   Sav.   I?k.   v.   Roberts,  236. 
Somes    V.    Brewer,    516. 
Somes  V.  Skinner,    512,   514. 
Soner  v.  Guernsey,   237. 
Soper    V.    Lawrence    Bros.,    186. 
So'sby  V.   Vance,    631. 
Sotton  V.  Burrows,  85. 
Soukup   V.  Topeka,    205. 
Soule    V.    Albee,    273. 
Sou'e  V.    Barlow,    495. 
South  Branch  R.  R.  Co.  t.  Parker,  441. 
South  Omaha  Bk.   Co.  v.   Levy,  272. 
Southard  v.   Central    R.    R.,   207. 
Southard  r.    Parks,    520. 
Southbridge  Sav.   Bank  t.   Mason,  16. 
Southerin  z:  Mendum,  251. 
Southerland  z:   Stout.  619. 
Southern   Cotton   Belt  Co.   :■.   Dukes,   657. 
Southern    Cotton    Oil     Co.    '.:    Henshaw, 

IPfl. 
Southern  R.  R.  Co.  -.   Sate,  161. 
Southsctt   V.    Stowell,    354. 


Soutter  V.  Potter,  593. 

Souverlye  v.   Arden,   576,   577. 

Sowle  z:  Champion,  278. 

Sowles    V.    Martin,    160. 

Sowles'   Trustee  z.    Buck,   274. 

Spacy    V.    Ritter,    578. 

Spader    v.    Powers,    321. 

Spalding    v.    Bemiss,    434. 

Spalding  v.  Mumford,  151. 

Spalding  v.    Shalmer,    383. 

Spangler   v.    Spangler,    86. 

Sparger  v.   Moore,   86.        fB 

Sparhawk    v.    Bagg,    239. 

Sparhawk  v.   Broome,  140. 

Sparhawk  v.    Sparhawk,   376. 

Sparks  v.  State  Bank,  260. 

Sparrow    v.    Hovey,    493,    504.- 

Spaulding   z.    Chicago,    66. 

Spaulding  v.    Hallenbeck,    2.');5. 

Spaulding  v.    Woodward,    192. 

Spear  v.   Fuller,   147,   148. 

Spears    v.    Conley,    515. 

Speer    v.    Evans,    584. 

Speer  v.   Speer,   195. 

Speiden   v.   Parker,    2,   13. 

Spence  v.   Steadman,   233. 

Spencer   v.   Carr,    561. 

Spencer  v.  Dougherty,  208. 

Spencer  v.  Harford,  276. 

Spencer    v.    Higgins,    640. 

Spencer   v.    Kimball,    405,   407. 

Spencer  v.    Lewis,   59. 

Spencer    v.    Newbold's,    368. 

Spencer    v.    Robbins,    567. 

Spencer   v.    Scovil,    392. 

Spencer   v.    Spencer,    380. 

Spencer    v.    Spruel,    45. 

Spencer    v.    Strait,    298. 

Spencer  v.  Waterman,  258. 

Spencer    v.    Weston,    101. 

Spero    V.    Levy,    142. 

Sperry  v.  Sperry,   207. 

Spies    V.    Voss,    130. 

Spiller   7'.    Scribner,    595.    605. 

Spinker    z'.     Haagsma,     562. 

.Sprague  v.    Duel,    556. 

Sprague   z:    Luther,    632,    633. 

Sprague   v.    Quin,   163. 

Sprague  v.   Rooney,   134. 

Sprague  v.  Snow,  608. 

Sprague   v.    Woods,    329,    548. 

Sprigg  V.   Bk.    of   Mt.    P'easant,   233. 

Sprigner   v.    Walters,    217. 

Springer   z:    Berry,    331,    367. 

Springer  z:  Chicago  &  C.  Co.,  139. 

Springer  z:    Congleton,    642. 

Springer    v.     Lipsis,     160. 

Springer  v.   Sprtnger,   367. 

Springfield  v.   Harris,   444. 

Springfield    Foundry    &    Machine    Co.    V. 

Cole,  16. 
Springfield  Ins.   Co.   ?■.  Allen,   248. 
Springs   v.    Scott,    307. 
Spurgeon    t'.    Collier,    234. 
Spurr  V.   Andrew,   253,   617. 
Spyve   V.    Tonhara,    609. 
Squirer   v.   Harvey,   204. 
Squier  v.  Morris,   .^69. 
Squire  v.  Ferd   Heim    Co.,   168. 
Squire    v.    Harder,    329. 
Squire  r.  Mudgetts,  128. 

cvii 


TABLE   OP    CASES    CITED. 


{^References  are  to  Sectiona.l 


Sublcr   f.    Collins,    160. 

Stack    f.    Scaton,    157. 

Stafford    f.    Giles,    5'JO. 

Stafford  f.  Jones,  236. 

Sufford  V.   Van    Rensselaer,   217,   260. 

Staffordville  Gravel  Co.  i.  .\ewall,  015. 

Stahl   f.    Delin,   231. 

Stahl    f.    Stahl,   «8,    115. 

Stainback    v.    Geddy,    255. 

Stall  I'.   Cincinnati,   383. 

Stambaugh   t'.    Smith,   6'.:5. 

Stamper    f.    Griffin,    498. 

St.-inard   f.    Eldridge,    614. 

Stanbrough    v.    Daniels,    273. 

Stanch    v.    Ziegler,    45. 

Standley  v.   Moss,   633,   634. 

Stanhope  v.  Manners,  272. 

Stanish    v.    Dow,    273. 

Stanley    v.    Beatty,    251. 

Stanley  f.   Colt.  210,   371. 

Stanley   v.   Kempton,    250. 

Stanley  ;.   Schoolbred,   493,   494. 

Stanley  v.   Socks,  285. 

Stanley   v.    Stanley,   387 

Stanley  f.    Valentine,  257. 

Stannard   v.    Serry,    197.  » 

Stansberry    -•.    Inglehart,    299. 

Stansbury    v.    Hubner,    204. 

Stansell    v.    Roberts,    219. 

Stansfield    f.    Habergram,    359,    366. 

Stansfield  t.   Hobson,   247. 

St.insficld   V.    Portmouth,   18. 

Stanton   v.    Allen,    139,   202. 

Stanton    v.    Mullins,    494. 

Stantons    v.    Thompson,    242,    258. 

Staples    J'.    May,    591. 

Star  f.    Ellis,   257. 

Stark   V.    Carroll,    195. 

Stark    V.    Coffin.   601. 

Stark  V.  Hopson,  92. 

Stark   V.   McGowen,   453. 

Stark   V.    Mercer,    276. 

Starkweather    <■.    .\m.    Bible    Soc,    642. 

Starr  v.  Moulton,  380. 

Starr    v.    Starr,    118,    634. 

State  V.   Batchhelder,   522. 

State   t'.    Bonham,    16. 

State    f.    Coughram,    574. 

State    V.    Diveling,    126. 

State  V.   Ellmore,   160. 

State    Bank    j'.    Evans,    578. 

State   V.    Gilbert.    634. 

State    V.    Gilmanton,    599. 

State   V.   Griffith,   641. 

State  V.  Guilford,  380. 

State    V.    Harman,    532. 

State  V.    Horn,    441. 

State  t'.    Matthews.    553. 

State  V.   Northern   R.   R.   Co.,  2, 

State  V.  Pacific  Guano  Co.,  690. 

State  r.  Peck,  572,   579. 

State    V.    Pickney,    599. 

State   V.    Pottmyer.   2. 

State    Bank   v.   Percival,   11. 

State   V.    Schwin,   441. 

State    V.    Sluder,    560. 

State   t'.    Staiger,   129. 

State  V.   Tanner,    522. 

State  V.   Van   Derweer,   441. 

State  V.  Westfall,  656. 

State  V.   Whithank,   642. 

cviii 


Stater  v.   Collins,   464. 

Statesbury   v.    Vail,   150. 

Staton    V.    MuUis,    494,    588. 

Steacy  v.    Rice,   361. 

Steads   Exrs.  v.  Course,  532. 

Steamboat   Magnolia  v.   Marshall,   599. 

Stearcy   v.    Rice,    348. 

Stearns  v.   Hendersass,    511. 

Stearns    v.    Jones,    429. 

Stearns  v.  Quincy  Mut.  Ins.  Co.,  248. 

Stearns  v.    Swift,   558. 

Stears  v.  Hollenbeck,  247. 

Stebbins   v.   Hall,   619. 

Sieckman  v.   Priest,  642. 

Steel   V.    Frick',    160. 

Steel   v.  Johnson,   507. 

Steele   v.    Boone,   260. 

Steele  v.  Mague,  96. 

Steele    V.    Steele,    72,    228. 

.Steele  v.   Taylor,   596. 

Steenburger   v.    Greenwood,    123. 

Stcene  v.   Steele's  Admr.,   463. 

Steeper  v.    Baker,   495. 

.Steeple  v.   Downing,   504,   559. 

Steer  v.    Steer,    374. 

Steers  v.    Brooklyn,   488. 

Steffins    V.    Earl,    168. 

Steflfens  v.  Nelson,  509. 

Stegall   V.    Stegall,    98. 

Stchman   v.   Stehman,   393. 

Stein   V.   Hanck,    443. 

Steiner    v.    Ellis,    2G4. 

Steinhardt   v.    Cunningham,   275. 

Stelle    V.    Carroll,    87. 

Steltnische   v.    Lamb,    504. 

Stelzich    V.     Weidel,    258. 

Stenner    v.    Berney,    126. 

Stephens    v.    Bridges,    155. 

Stephens    v.    Hewitt,    191. 

Stephens  v.   Hooks,    458. 

.Stephens  ?'.   Hume,  80. 

Stephens    v.    Huss,    578. 

Stephens  v.   Leonard,  86,  94. 

Stephens  v.  McCormick,  498. 

Stephens  v.   Morse,   580. 

Stephens  v.   Mut.    Ins.   Co.,   248. 

Stephens    v.    Rinehart,    578. 

Stephenson  v.   Cotter,   191. 

Stephenson   v.    Doe,   471. 

Stephenson  v.  Haines,  462. 

Stephenson's   Heirs  v.   Sullivan,   482. 

Steryer   v.    Van    Siclen,    146. 

Sterling   v.    Baldwin,    563. 

Sterling   v.    Sterling,    635. 

Sterling  v.   Warden,   173,   468. 

Sternberg  v.   Dominick,   278. 

Sternberg  v.    Wilcox,    161. 

Sterns    v.    Sampson,    173. 

Stetson  V.   Daw,   605,   606. 

Stevens  v.   Brown,   59. 

Stevens  v.    Bunham,    18. 

Stevens   v.    Castell,    577. 

Stevens  v.   Cooper,  283,  285. 

Stevens  v.   Enders,    195. 

Stevens   v.    Fowler,    298. 

Stevens  v.   Hampton,   574. 

Stevens    v.     Hollister,     494, 

Stevens   v.    Martin,    186. 

Stevens   v.    McNamara,    532. 

Stevens  r.    Ozburn,    ."iO.'),    575. 

Stevens  v.   Pierce,   134,    146. 


TABLE    OF    CASES    CITED. 


[References  are  to  Sections.] 


Stevens    v.    Rainwater,    217. 

Stevens  v.   Reed,   109. 

Stevens    v.    Rose,    16. 

Stevens  v.  Stevens,  105,  367. 

Stevens   v.    Taft,    497. 

Stevens   v.    Van    Cleve,   632. 

Stevens  v.    Watson,   583. 

Stevens  Lumber  Co.  i:  Hughes,  493. 

Stevenson   f.    .Anderson,    1S6. 

Stevenson    f.    Black,    251. 

Stevenson   r.    Brasher,    115,   574. 

Stevenson    i-.    Chattanooga,    429. 

Stevenson     i.     Crapnell,     579. 

Stevenson    7:    Huddlestone,    631. 

Stevenson    r.     Lombard,     139. 

Stevenson    v.    Lesley,    381. 

Stevenson    f.    Stevenson,    367. 

Stevenson    z:    Stewart,    435. 

Stewart    z:    Barrow,    243,    244. 

Stewart    v.    Brady,    33,    204. 

Stewart    2\    Chadwick,    85. 

Stewart   Z'.    Clark,    51. 

Stewart    f.    Crosby,    254. 

Stewart    v.    Crysler,    86. 

Stewart   f.    Doughty,   58. 

Stewart  f.   Duffy,  368. 

Stewart  v.   Fitch,   598. 

Stewart  v.   Harriman,   634. 

Stewart    v.    Hutchings,    230. 

Stewart  v.  Long  Island  R.   R.  Co.,  139. 

Stewart  v.   Mackey,   127. 

Stewart    v.    Mathany,    54. 

Stewart  f.  McMartin,  85. 

Stewart  f.  McSweeney,  559,  584. 

Stewart  r.    N'eely,  317. 

Stewart    f.    Roderick,    157. 

Stewart  r.  Smith,  260. 

Stewart    7'.    Sprague,    140. 

Stewart    t:    Stewart,    34. 

Stewart    -■.    Stokes,    417. 

Stewart  v.   Thomas,   181. 

Stewart   f.    Toes,    217. 

Stewart  z:   Wood,  220. 

Sticklcbone  t.  Hatchman,  66. 

Stickney   -•.    Stickney,   160. 

Stiger    r.    Bent,    255,    257. 

Stiles  z:    Hooker,   435. 

Still   z:   Mayor,   217. 

Stillman   z:    Stillmah,   257. 

Stilloway    z:    Brown,    122. 

Stillwell   z:    Hubbard,   578. 

Stillwell    v.    Knapper,   204. 

Stillwell  r.  St.  Letc.  Ry.  Co.,  608. 

Stimpson  z'.  Butterman,  176. 

Stimpson  f.   Thomaston   Bk.,  92. 

Stinebaugh    z:    Wisdom,    80. 

Stinson    z:    Ross,    239. 

Stinson   Z'.    Summer,   85. 

Stobie    z:    Dills,    156. 

Stockbridge   z:    Stockbridge,   302,   640. 

Stockbridge  Iron  Co.  v.  Hudson  Iron  Co., 

590. 
Stockport    Waterworks    f.    Potter,    447. 
Stockton    Z-.    Williams,    520,    559. 
Stockwell  z\  Campbell,   13. 
Stockwell    z:     Hunter,     4. 
Sfocton    V.    Geissler,    495. 
Stoddard  r.  Gibbs,   R1. 
Stoddard   z:    Hart.   215.    286. 
Stoddard  z:   Nelson,   134. 
Stoddard  v.  Rotton,  257. 


Stoddard   v.   Weston,    186. 

Stodgell  V.  Jackson,  122. 

Stoever  v.  Stoever,  228,  281. 

Stokes  z:  McKibben,  79. 

Stokes    V.    O' Fallon,    86. 

Stone   V.    Ashley,    573. 

Stone  f.   Bradlee,   45,   399. 

Stone    -'.    Clark,    595. 

Stone    V.    Harrison,    3£8. 

Stone   V.   Hooker,   619. 

Stone   V.    Lane,    262. 

Stone   J'.   Lewis   Admr.,   301. 

Stone  V.   Littlefield,   298. 

Stone  z:   Locke,  274. 

Stone  z:  McEckron,  322. 

Stone    z:     Meyers,     566. 

Stone    z\    Montgomery,    558. 

Stone  z:    Patterson,   245. 

Stone   z'.    Seymour,    270.  j 

Stone    v.    Sprague,    163. 

Stoney  z:  Shultz,  246,  285.  i 

Stool foos    v.    Jenkins,    80. 

Stopplebein   v.   Shulte,   87. 

Stover    V.    Freeman,     598. 

Storm   z'.    Mann,    68. 

Storm   Lake    Bank   z:   Mo.    Val.    Ins.   Co.. 

368. 
Storms    z:    Storms,    236. 
Story   V.    Saunders,    186. 
Story    v.    Wolverton,    519. 
Stough  z:   Bodyen   Lumber  Co.,  285. 
Stoughton    V.    Lee,    4. 
Stoughton  V.   Leigh,   64,   105. 
Stout  V.  Merrill,   157,  556. 
Stout  z:    Stout,   399. 
Stover    z:    Boswell,    482. 
Stover  z:   Eycleshimer,   385,   564 
Stover  z:  Jack,   598. 
Stover  Z'.  Kendall,  649. 
Stover   z:    Wood,    257. 
Strode  z'.  Russell,  241. 
Stow   V.    Tifft,    87,   94. 
Stowe  I'.    Steele,   97. 
Stowell   7'.   Pike,   244,   265. 
Strabala    v.    Lewis,    505. 
Strafford   z:   Wentworth,    55. 
Stranford  z:   Broadway  Sav.  &  Loan  Co., 

511. 
Strang   v.    .Mien,    246. 
Stratton   z:    Bailey,   74. 
Stratton   v.   Gold,   219. 
Strauss  r.  Rost,  301. 
Strayer  v.    Long,    116. 
Streaper  v.    Fisher,   147. 
Streeter   z:    Shultz,    186. 
Strickland    z:    Bartlett,    558. 
Stringer  v.  Northwestern   Mut.  Life  Insi, 

557. 
Stringer  r.    Young,    521. 
Striver  z:    Smith,   427. 
Stude  V.   Russell,   241. 
Strogan    v.    Knowles,    448. 
Strohmeyer    z:    Zeppenfeld,    148. 
Strokes  z'.   Hodges,    585. 
Strong  V.  Bragg,  85. 
Strong  z:   Clem,   85. 
Strong  V.  Converse,  94,  268. 
Strong  V.   Gregory,  .420. 
Strong  V.   Ins.   Co.,   248. 
Strong  z:    Makeever,    441. 
Strong  V.  Smith,  875,  581. 

eix 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Strong  f.    Stewart,    23S. 

StronK   ;•.    Strong,   233. 

Si  111.  her   r.    Law,   277. 

Strother   t.    Lucas,    520. 

Stroud  t.   Pace,  218. 

StrouJ    ;.    Snringlicid,    506. 

Struugh   t.    Wilder,   .'i77. 

Strush  :.    Decker.  (537. 

Struihers   :.    I'c.irce,    368. 

Siuari  :.  Diplock,  433. 

St.iart    f.    Frink,    441. 

Stuart    f.    Harrison.    217. 

Stuart   f.    Kissam,    72. 

Stuart   :.    I.owry,   5(>9. 

Stubblefcld    :.     Boggs,    621. 

Stuckcr  f.   Stuckcr,   274. 

Studdard   r.   Wells.   291. 

Stuebben    :•.    Granger,    156. 

Stull   f.    Stull.    180,   186. 

Slump  f.    Findlay,   51. 

Stumpf  r.    Hallshon,    276. 

Stumpf   :■.    Osterhage,    494,   496. 

Stunz    f.    Stunz,    118. 

Slurgis    J'.     Corp.,     348. 

Stvirgis   f.    Ewing,    85. 

Sturgis   f.    Paine,    373. 

Slurgis   r.    Work,    640,    649. 

Stiirtcvant  f.  Jaques,   366. 

Sturtevant  v.   Sturtevant,   577. 

Stuyvesant  v.    Hall,   261,   582. 

Stuyvesant  f.   Mayor  of   New  York, 

Suarey   :•.    Pompelly,    373. 

Suffern    r.    Butler,    578. 

Suffolk  Ins.  Co.  f.   Boyden,  248. 

Su'any  f.   Middleton,   399. 

Su'livan  v.    Endcrs,   164. 

Sullivan    v.    Smitt,    146. 

Sullivan   f.    Sullivan,    634. 

Summer   z:    Conant,    558,   570. 

Summers  -•.  Babb,  105. 

Summers  i'.    Pumphrey,   556. 

Summers  v.   Smith,   393. 

Summcrville    :•.    Stockton    Co.,    160. 

Summit    V.    Yount,    204. 

Sumner  i-.   Darnell.   201. 

Sumner  f.   Lampson,  86. 

Sumner   f.    Seaton.   509. 

Sumner  v.  Stevens,  516. 

Sumner   i:    Waugh,    253. 

Sumner   z:    Williams,   609. 

Sumrall   v.    Chaffin,    278. 

Sumwalt    z:    Tucker,    243. 

Sunderland   -.    Hood,   637. 

Supervisors,    etc..   z:    Patterson,   201, 

Supple  f.   Timothy.   169. 

Surdam   z:   Cornell,   302. 

Susquehanna,  etc.,   R.   Co.  r.   Quick, 

Sussex    Mut.    Ins.    Co.   z\   Woodruff, 

Sutliffe  -■.   Atwood,   143. 

Sufphen  z:   Cushman,   233. 

Sutphin   z\    Seebas,    153. 

Sutton   V.    .\iken,    348. 

Sutton    r.    Cole.    331. 

Sutton    -■.    Gibson,    579. 

Sutton    z:    Hiram    Lodge,    180. 

Sutton  V.   Mason,  243. 

Sutton   -.    Stone.    272. 

Sutton   z:   Sutton,   633. 

Suydam  v.  Bartle,  276. 

Suydam  f.    Tones,  624. 

Suydam   z:   Thayer.   387. 

CX 


627. 


504. 
248. 


Swainc  r.    Perine,    117,   287. 
Swan   J'.    Benson,   217. 
Swan    T.   Jupple,    250. 
Swandale  r.   Swandale,   123,  186. 
Swanson  v.   Calhoun,    195. 
Swasey    v.    Little,    462. 
Swazey    v.    Brooks,    609. 
Swazey    z'.    Jaques,    476. 
Swearingen   v.    Morris,    629. 
Sweatt    V.    Corcoran,    521. 
Sweeney    v.    Hanley,    191. 
Sweet    V.    Brown,    619,    622. 
Sweet   V.   Parker,    233. 
Sweet   z:    Sherman,   284. 
Sweet    z:    Ward,    264. 
Sweetapple  v.    Bindon,   79. 
Sweetser    v.    Lowell,    576. 
Sweetzer   v.   Jones,    253. 
Sweezy   v.   Thayer,   281. 
Swett   V.    Thompson,    299. 
Swift    r.    Coker,    434. 
Swift    V.    Edson,    275. 
Swift    V.     Mulkey,    494. 
Swigert  v.   Bk.   of  Ky.,   290. 
Swinburne  Z'.   Swinburne,   368. 
Swinney   v.    Gontz,    238. 
Swinton   v.   Legare,  306. 
Swope  V.   Ward,   491,   495. 
Sword  V.  Low,   13,   15. 
Sylvester  v.   Ralston,    166. 
Sylvester  v.  Wilson,  322. 
Syracuse   Bank  z:   Merrick,   251. 
Syracuse   Bk   v.   Tallman,   245. 


Tabb  z:   Baird,  559. 
Tabler    ?■.    Wiseman,    194. 
Tact   V.    Crawford,   585. 
Tadlock  v.  Eccles,  273. 
Taffe  z:   Harteau,   147. 
Taft  V.   Stevens.  240. 
Taft   z:   Taft,   373. 
Tainter    v.    Clark,    377. 
Talamo  z:    Spitzmiller,   134. 
Talbot   v.    Braddill,    234. 
Talbot   z:    Talbot.    479. 
Talbot   z'.    Whipple,    156. 
Tallmadge  z:    Sill,    420. 
Tallman    Z'.    Murphy,    158. 
Tallman    z:    Wood,    322. 
Talman    zi.    Snow,     207. 
Tancred    v.    Christy,    166. 
Tane   v.    Campbell,    181. 
Taney  v.   Fahnley,   321,  322. 
Tanner   v.    Hills,    160. 
Tanner  v.   Skinner.  373. 
Tanton    v.    Van    Alstine,    134. 
Tanun    v.    Kellogg,    496. 
Tapley   v.    Smith,    9. 
Taopan   v.    Davidson,    633. 
Tappan  z'.  Diblois,   631,  641 
Tarver  z'.  Tarver,  651. 
Tasker   v.    Bartlett,    572. 
Tate    r.    Carney,    522. 
Tate  V.   Field,   68. 
Tate  V.   Foshee,   198. 
Tate  V.  Gray.  596. 
Tatro  V.  Tatro,   98. 
Tattle  z:   Wilson.  101. 
1  Taylor  V.   Adams,   60,  306. 


TABLE   OP   CASES   CITED. 


[References  are  to  Sections.] 


Taylor  v.  Baldwin,  190,  217. 

Taylor   v.    Benham,    380. 

Taylor   z:    Blake,    195. 

Taylor   v.    Boyd,    529. 

Taylor    f.    Bray,    475. 

Taylor  f.  Broderick,  105. 

Taylor  r.   Burnside,   492. 

Taylor  v.   Caldwell,   132. 

Taylor  f.   Coriell,  362. 

Taylor    t.    Uening,    632. 

Taylor  ?•.  Dugger,  498. 

Taylor  ;■.    Eastman,   413. 

Taylor  i'.  Fowler,  87. 

Taylor  v.    Gardiner,   635. 

Taylor    v.    Glaser,    572. 

Taylor  v.  Gould,  80. 

Taylor   z:    Harwell.    463. 

Taylor  v.  Henry,   373. 

Taylor   v.    Highberger,   85. 

Taylor  v.  Horde,   42,   496. 

Taylor   v.    Kelly,    631. 

Taylor  v.   King,   565. 

Taylor    v.    Martin,    373. 

Taylor    v.    Mason,    203. 

Taylor    v.    Maxon,    202. 

Taylor   '•.   McCracken,   87. 

Taylor    v.    Millard,    430. 

Taylor  v.    Morton,   550,   571. 

Taylor  i.    Mosely,   368. 

Taylor  v.    Page,   236,   253. 

Taylor  r.   Porter,   25,   524. 

Taylor  f.   Short,  289. 

Taylor   v.    Stewart,   305. 

Taylor   <:   Sutton,   200. 

Taylor  v.   Taylor,   42,   649. 

Taylor    v.    Waters,    465. 

Teaney  v.   Moins,    31. 

Teater  v.   King.   139,   168. 

Teets  V.  Weise,  301. 

Tefft   V.    Munson,    247,    515. 

Tegarden  t.    Le  Marchal,   505. 

Teit   v.    Richard,    397. 

Telfair  v.    Roe,    471. 

Temple  v.    Mead,  631. 

Templeman   v.   Biddle,   68. 

Teneyck   z:    Craig,    246. 

Tennent    f.    Stoney,    100. 

Tennessee,  etc.,  R.  R.  Co.  r.  Mabry,  605. 

Terrell   ?•.   Andrew   Co.,   259,  584. 

Terrell    r.    Martin,    186. 

Terrett  r.   Taylor,    520,   621. 

Territory   z:    Klee,    569. 

Terry  i.  Briggs,  391. 

Terry   z:    Diabenstatt.   625. 

Terry  -•.   Eureka   College.  272. 

Teuton  r.   Curtis,  247. 

Tew    V.    Jones,    166. 

Tewksbury   rv  Ma«:raff,   157. 

Tewkesbury  z:  O'Connell,  576. 

Texas  Land,  etc.,   Co.  z:   Blalock,  126. 

Thachcr   r.    Phinney,    566. 

Thackery   z'.    Edigan,   68. 

Thackston  z:  Watson,  310. 

Thamed  z'.   Caldwell,   217. 

Thames   v.    Caldwell,    218. 

Tharp  z:   Yarbrough,   662. 

Tharpe   z'.    Feltz.    269. 

Thatcher  z:   Omans,   342,   648. 

Thatcher   z'.    Phinney,    66. 

Th.ntcher   z:    Powell,  •  .138. 

Thayer  v.   Campbell,   274, 


Thayer   i'.    Clemence,   426. 

Thayer    z'.    Mann,    276. 

Thayer    z:    Richards,    237. 

Thayer    v.    Spear,    200. 

The  Commonwealth  v.  Alger,  25. 

The   Commonwealth   v.    Tewksbury,   25. 

Thelluson    v.    Woodford,    400. 

The   People  z:    Darling,    167. 

The    People  f.    Field,    173. 

The    People    z\    Gillis,     13G.  i 

Tlie    People  v.    Salem,   2f). 

The  People  v.   Ulster  Com.   Pleas,   281. 

The    State   z:    Brown,   291. 

Thibodeaux  v.   Thjbodeaiix,    105. 

Thistle    V.    Buford,    515. 

Thomas   v.    Bertram,    439. 

Thomas  v.    Black,   157,    170. 

Thomas  v.  Blackmore,  586. 

Thomas  v.   Boerner,   521. 

Thomas  v.   Cook,    156. 

Thomas   v.    Davis,    17. 

Thomas   v.    Gammel,    97. 

Thomas  v.   Hamil,   195,   198. 

Thomas  v.   Hatch,    186,   556. 

Thomas    v.    Kingsland,    146. 

Thomas  v.  Mansfield,  420,  504. 

Thomas    z:    Perry,    615. 

Thomas  v.   Pickering,   186. 

Thomas  v.   Poole,    626. 

Thomas  v.   Pullis,   557. 

Thomas   v.    Simmons,   242. 

Thomas  z'.  Standiford,  367. 

Thomas  v.    Stickle,   618. 

Thomas  z:   Thomas,   91.   389. 

Thomas   z'.   Turney,   552. 

Thomas  v.  Vonkapff,  24S,   626. 

Thomas   v.   Wolford,    298. 

Thomas  v.  Wyatt,  521. 

Thomason   z'.    Neely,    126. 

Thompson   f.   .Vtty.    Gen.,    629. 

Thompson    z'.    Banks,    606. 

Thompson  Z'.   Bostick,   191. 

Thompson  z'.  Boyd,  87,  92. 

Thompson    z:    Burhaus,    494. 

Thompson    v,    Calhoun,    564. 

Thompson   v.   Chandler,  2r)5. 

Thompson   v.   Cochran,   90. 

Thompson   z'.    Collier,    113. 

Thompson   z'.    Davenport,    234. 

Thompson  z:  Davitt,  633. 

Thompson   z:    Egbert,    118. 

Thompson    v.    Field,    251. 

Thompson  v.  Hammond,  577. 

Thompson  v.   Hoop,   388,   394. 

Thompson  v.  KauflFelt,  497. 

Thompson    v.    Kenyon,    250, 

Thompson   v.    Leach,    !?96. 

Thompson    z'.    McGill,    217. 

Thompson    z'.    Morrow,    105. 

Thompson   z'.    Uglow,   435. 

Thompson   v.    Peake,    364. 

Thompson    z'.    Phila.,    etc.,    Coal    &    Iron 

Co.,   497. 
Thompson  v.    Pioche,   496. 
Thompson  v.   Sanders,  624. 
Thompson  z:    Shattuck,   624. 
Thompson  z'.   Sheppard,   126. 
Thompson    v.    Southern    Cal.    M.   R.    Co., 

591. 
Thompson  v.  Speck,  589. 
Thompson  v.   Stacy,   85. 

cxi 


TABLE  OP  CASES  CITED. 


[References  are  to  Sections.] 


Thompson  f.  Thompson,  68,  87. 
Thompson   f.    Watcrlow,    427,   428. 
Thorn    t.    Sutherland,    10. 
Thurndcll   t.   Morrison,  558. 
Tborndike  i'.  Burragc,  140. 
Thome  :.  Thome,  239. 
Thornton   i:    Boyden,   282. 
Thornton  ;.  Irwin,  270. 
Ibornton  f.  Knox.  217,  218, 
Thornton  f.  Natchez,  201. 
Thornton  v.   Payne,  130. 
Thornton   t.   Peter,   217. 
Thornton    t.    Pigg,    275. 
Thorp    t.    Feltz,    240. 
Thorp  f.   Keokuk  Coal  Co.,  263. 
Thorp  f.  McCullum,  417. 
Thorpe  f.  Dunlap,  210. 
Thorpe   f.   Goodall,    420. 
Thorpe   v.    Philbin,    170. 
Thorpe  i'.    Raymond,   505. 
Thrasher  f.  Pinckard,  108. 
Thrasher  v.   Tyack,    113. 
Throckmorton  v.  Price.  259,  284. 
Thunder  r.  Belcher,  171. 
Thurber  f.  Townshcnd,  75. 
Thurman  r.  Cameron,  569. 
Thurman  r.  Stoddard,  217. 
Thursby    ■<:    Plant,    143. 
Thurston  f.   Dickinson,  300. 
Tibbals  f.  Jacobs,   578. 
Tice  f.  Annin,  239. 
Tidd  r.   Lister,   72. 
Tiddy  v.  Graves,   79,  84. 
Tieman  f.    Tieman,   121. 
Tiernan  f.   Hinman,  234. 
Tiernan   f.   Thurman,  217. 
Ticrney   f.    Spiva,    273. 
Tiflft  f.   Horton,   13,   15. 
Tilden   v.    Fiske,    377. 
Tilden  v.  Green,  387,  641. 
Tilden  v.  Greenwood,  239. 
Tilden  v.  Tilden,  633. 
Til  ford  V.  Torrey,  367. 
Tillar  r.  Henry,  368. 
Tillett   r.   .Aydlett,   31. 
Tillinghast  v.  Champlin,  185. 
Tillinghast    v.    Coggeshall,    78,    322. 
Tillinghast   f.    Holbrook,    556. 
Tillman   v.    Brown,    122. 
Tillman   f.    Spann,   498. 
Tillotson    f.    Boyd,    253. 
Tillotson  V.   Mitchell,  509. 
Tillotson   V.    Preston,   466. 
Tilson   f.   Thompson,   114. 
Tilton  t'.  Coal,   159. 
Tilton  r.  Hunter,  582. 
Tilton  V.  Vail,  195. 
Timlin   v.   Standard  Oil   Co.,   146. 
Tindall   v.   Tindall,   27,   301, 
Tinker  r.  Benson,  498. 
Tinlay  v.  Huntington,  348. 
Tinsley  v.    Lombard,   505. 
Tinsley   z:   Tinsley,   217. 
Tipping   V.    Coizens.    329. 
Tipnings    t.     Robbins.    189. 
Tipton  V.   Martin,   127. 
Tishner  v.    Rutledge,   159. 
Ti'sen    7'.     Tissen.    401. 
Titchenell    t.    Jackson,    8T4. 
Titeomb  r.   Kink,   2. 
Titcomb  f.  Morril,  829. 

cxii 


Titcomb  v.  Vantyle,  556. 

Titsen   r.   Cochran,   393. 

Titus  V.  Haynes,  201,  588. 

Titus  r.   Neilson,   90,  288. 

Titzell   V.  Cochran,   46. 

Toan  v.   Pline,   134,   460. 

Tobey   v.    Secor,    497. 

Tobin   7'.    Bass,    577. 

Tobin  V.  Gnof,  400. 

Tobin    V.    Young,    158. 

Tocker   :■.    Conrad,    441. 

Tod   V.    Baylor,    113. 

Todd  7'.  Jackson,   173. 

Todd  f.    Kerr,   515. 

Todd   V.    Lunt,    187. 

Todd   I'.   Rennick,   645. 

Todd    V.    Tott,    642. 

Todd  7'.   Union   Dime  Sav.   Bank,  684. 

Toder  7'.   Herring,  410. 

Todhunter   v.   Armstrong,   166. 

Tokon   V.   Tokon,   373. 

Toland  7'.  Corey,  586. 

Tole  V.    Hardy,   638. 

Toledo  R.    R.  7:  St.   L.  &  C.   R.   R.,  209. 

Toller    V.    Atwood,    322. 

Toilet   V.    Toilet,    417. 

Tolman  v.  Casualty  Co.,  238. 

Tolman    7'.    Smith,    242.  « 

Tomkins  t.   Wheeler,   570. 

Tomle  V.  Hampton,   146. 

Tomlin    z'.    Luce,    278. 

Tomlinson  7'.  Dighton,  301. 

Tomlinson   f.   Monmouth,  229. 

Tomlinson  v.    Swinney,   127. 

Tomlinson  7-.   Tomlinson,   647. 

Tompkins    v.    Mitchell,    217. 

Tompkins   z\    Tompson,    576. 

Toner  z:   Collins,   388. 

Tong  V.  Marvin,  75. 

Tongue  v.   Nutwell,  397. 

Tonsville   z:    Pierson,   123. 

Toof  7'.   Decatur,   441. 

Toole  v.   Perry,  302. 

Tooley    v.    Dibble,    579. 

Tooley    v.    Kane,    530. 

Toomey  v.   McLean,   87. 

Tooms  z'.  Couset,   2.34. 

Topley  V.  Topley,  560. 

Topp    7'.     White,    305. 

Topping  V.  Cohn,   505. 

Torrance    7'.    Carbey,    92. 

Torrence  7'.  Shredd,  512. 

Torrey  v.   Biglow,  495. 

Torrey   z:    Burnett,    16,    18. 

Torrey   v.    Cook,    277. 

Torrey  v.   Minor,   85,   621. 

Torroms   v.    Hicks,    275. 

Toss  V.   Staunton,   142. 

Totel    V.    Bounefoy,    466. 

Totten  '■.    Stuyvesant,   86. 

Toulmin   z'.    Austin,   565,    581. 

Toulmin  z'.   Heidelberg,   670. 

Tours  V.   Williams,   373. 

Tower    v.    Fctz,    233. 

''"ower  z'.  Hale,  562. 

Town   V.    Hazen,    466. 

Towne  7'.  Ammidon.  380. 

Towne  z:  Butterfield,  167,  163. 

Towns   z'.    Towns,   75. 

Townsend  v.   Brown,   619. 

Townsend   v.    Jemison,    607. 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.'\ 


Townsend  v.  Morris,  620,  621. 
Townsend  v.  Nickerson,  138. 
Townsend   v.   Peterson,   233. 
Townsend   v.    Smith,    569. 
Townsend  v.  Windham,  420. 
Townshend  f.   Corning,   56U. 
Townshend   v.    Frommer,   273. 
Townshend   f.    Townshend,   637. 
Townson   v.   Tickell,  578,   405. 
Towson   V.   Denson,   495. 
Tracy    v.    Colby,    368. 
Tracy  v.  Craig,  368. 
Tracy  v.  Newton,  497. 
Tracy   v.   Tracy,    68. 
Trafford  v.   Boehm,   397. 
Trafton  v.  Hawes,  548,  566. 
•      Transue  v.    Brown,   633. 
Trante  v.    White,   450. 
Traphagen  v.   Burt,  367. 
Traphagen    v.    Irwin,    582. 
Traphagen  .r.    Levy,    31,    407. 
Trapnall   v.   Brown,   366. 
Trasher   z:    Everhart,    512. 
Trask   v.    Patterson,   69. 
Trask   v.    Wheeler,   207. 
Traster  v.  Nelson,  616. 
Treadwell  v.  Cordis,  410. 
Treadwell  v.   Tusley,    432. 
Treadwell   v.    McKeon,    368. 
Treat   v.    Pierce,    243. 
Tremaine  v.  Weatherby,  494. 
Tremberger   v.    Owens,    516. 
Trentman    v.    Neff,    592. 
Trexler    v.    Holler,   393. 
Trimble   v.    Boothby,    521. 
Trimm  v.   Marsh,  239. 
Trimmer  v.   Dorden,  54,  56. 
Tripe  v.    Marcy,   243,  272. 
Tritt    V.    Colwell,    72. 
Troost    V.    Davis,    269. 
Troth   V.    Hunt,   273. 
Trotter  v.   Hughes,   253. 
Trousdale  v.   Darnell,   168. 
Troy   V.    Troy,    52,    408. 
Trucks  V.   Lindsay.   231. 
Truebody    v.   Jacobson,   217. 
Truesdale  v.  Ford,  586. 
Truesdell  v.  Lehmann,  30,  48. 
Truett  V.  Adams,  608. 
Trull  V.   Bigelow,  580. 
Trull  V.   Eastman,   512,   622. 
Trull  V.    Fuller,   563. 
Trull  V.  Skinner,  231,  518. 
Trulock  V.   Donahue,  149,  460. 
Trulock  V.  Robey,  246. 
Truman  v.  Lore,  571,  575. 
Trumbull  v.  Trumbull,  80. 
Trustees  v.   Dickson,   243,   489. 
Trustees  v.   Kirk.   495. 
Trustees  f.   Lender,  601. 
Trustees    Catholic    Church    v.     Manning, 

574. 
Trustees,  etc.,  f.   Hart.   640. 
Trustees,  etc.,  v.  Stewart,  380. 
Trustees,  etc.,  v.   Zancsville  C.  &  M.  Co., 

641. 
Trustees  of  Donations  »'.  Strccter,  289. 
Trustees    of    Watertown    ?'.    Cowen,    429, 

626. 
Trustees  Old  Almshouse  v.  Smith,  268. 


Trustees  Union  College  z\  New  York,  205. 

Trustees   Union   College  v.   Wheeler,   253. 

Tryon   v.    Munson,    243. 

Tryor  v.  Huntoon,  367,  590. 

Tuck     V.     Fitts,     112. 

Tuck  V.   Hartford   Ins.   Co.,  248. 

Tucker    v.    Clarke,    514,    625. 

Tucker  v.    Hadley,    217. 

Tucker  v.   Morcland,   556,  B57. 

Tucker    v.    Oxner,    633. 

Tucker  v.  Palmer,  380. 

Tuckley  v.  Thompson,  216. 

Tudor  V.   Anson,    41/. 

Tufts   V.   Adams,   625. 

Tullett  V.   Armstrong,   73,  348. 

Tully  V.   Davis,   574. 

Tully   V.   Tully,   498. 

Tunstall  7'.  Christian.  445,  448. 

Tupper    V.    Ford,    34. 

Turk   V.    Funk,    260. 

Turk    V.    Skiles,    50. 

Turkham  i'.  Shaw,  4i!9. 

Turner   i:    I^nrrand,    195,    299. 

Turner   v.    Brown,   228. 

Turner   v.    Burnheimer,    126. 

Turner  v.  Cameron,  245. 

Turner  z:   Coffin,   509. 

Turner    v.    Connelly,    574, 

Turner  ?•.    Doe,    163. 

Turner    v.    Field.    672. 

Turner   v.    Dall,    495. 

Turner  v.    Hause,  300. 

Turner  v,    Horner,  219. 

Turner  v.    Johnson,  244. 

Turner  v.    Kerr,  231. 

Turner  v.   Quincy  Ins.   Co.,  248. 

Turner  v.   Reynolds,    663. 

Turner    v.     State,    8. 

Turner  v.   Thompson,    432,    443. 

Turner   v.    Vaughan,    126. 

Turner  v.  Whidden,  577,  578. 

Turner's  Guardian  f.  Turner's  Heirs  and 

Creditors,    123,    126. 
Turney  v.   Smith,   111. 
Turpin    v.    Saunders,    496. 
Turrer   v.    Mantonya,    151. 
Tusker   v.    Bartlett,   572. 
Tuthill    V.    Morris,    264. 
Tuthill    V.    Scott,    444. 
Tuttle    V.    Bean,    169. 
Tuttle  V    Reynolds,  163,  157. 
Tweddle  v.   Twcddle,  288. 
Twigg   V.   James,    276. 
Twitchell  v.  McMurtrie,  250. 
Twort  V.   Twort,   190. 
Tyler  v.   Cooper,    434. 
Tyler  v.   Haggart,  596. 
Tyler  v.  Hammond.  428. 
Tyler  v.  Herring.  278.  283. 
Tyler    v.    Jewell,    197. 
Tyler  v.   Judges.  656. 
Tyler    v.    Moore,    609. 
Tyler   v.    Wilkinson,    429. 
Tyll  Con    Min.  Co    v.  Longstreet,  494. 
Tyms  V.   R.   R..  445. 
Tyndall   v.   Peterson,   54 
Tyrell    v.    Baldwin,    121. 
Tyrrell    v.    Marsh.    405 
Tyson  v.  Tyson.  107,  124. 


cxin 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


t'dder  V.  O'Reilly.  181. 

Ufford  t.   Wilkin*.  804. 

Uhler  t.   Hutchinson.   S83. 

IMman  v.  Connor.  529. 

Ulster   Co.   Sav.   Trust   v.   Leake,   248. 

I'nderhill   t;.    Saratoga   &    Washington    R. 

R.    Co.,    200,   202. 
I'ndcrwood  r.  Cave.  52,  408. 
I'nderwood    :.    Dotlins,    672. 
Underwood   v.   Magruder,    397. 
I'ndcrwood  v.   Robbins,   397. 
I'ndcrwood   f.    Sutliffe,    367. 
I'nger  r.   Mooney,   496,   504. 
I'nion  Bank  f.   Emerson,  13. 
Union,  etc.,  M.  Co.  r.  Taylor,  498. 
L'nion   Mut.   Ins.   Co.   t.   Campbell,   374. 
Union  Mut.   Ins.  Co.  f.  Union  Mills.  285. 
Union   Mut.   L.  Ins.   Co.  v.   Hanford,  253. 
Union     Nat.     Bank    ?'.     Bank    of    Kansas 

City.    282. 
Union   Nat.   Bk.  v.  Internat   Bk.,   236. 
Union    Pao.    Ry.   f.    Kindred,   498. 
L'nited    N.    J.    Canal    Co.    v.    Con.    Fruit 

Jar    Co.,    569. 
United   States  r.   .\medy,   340. 
V.    S.   r.   Appleton,    432. 
United    States   r.    Clark.    521. 
United    States    v.    Crosby,    629. 
United    States   r.    Fitzgerald.    522. 
United    States   v.    Gratiot,    17. 
United   States  t.   Hooe,    236. 
United  States  f.  Huckabee,  560. 
United    States   ?•.    Linn,   554. 
United   States  v.    Stephenson,  572. 
United  States  r.   Sturges,   236. 
I'nited   States    Bank   r.   Covert,   251. 
United    States    Life    Ins.    Co.    v.    Poillon, 

276. 
United  States  Trust  Co.  v.  Roache,  273. 
University  of  Vermont  r.  Joslyn,  139. 
Upchurch  v.  Upchurch,  632. 
Upham    V.    Emerson,    642. 
I'pham   V.    Vamey,   390. 
Upshaw  V.   Hargrove.  217. 
Upton   V.    Archer,    653. 
Upton  V.  Greenlees.  154. 
Upwell    V.    Halsey,    401. 
Urann    i:    Coats,    373. 
L'rban   v.    Grimes,    557. 
Urch    V.    Walker,    377. 
Uridias   r.    Morrell,    170. 
Usher  i'.   Richardson,   100. 
Utah  Loan  &  T.  Co.  v.  Garbut,  134. 
Utter  V.   Sidraan,  31,   300. 
Uvedall  V.    Uvedall,  308. 
Uzzeel   V.    Horn,    498. 


V'aca.  Val.  R.  R.  v.  Mansfield,  658. 

Vail    V.   Jacobs.    278. 

Vail  V.  Long  Island  R.  Co.,  207,  801. 

V?M  r.  Vail,  197. 

Vail   T.   Weaver,   13. 

Valentine   v.    Healey,   178, 

\'alentine  v.  Piper,   698. 

Valentine   v.   Wyson,   411. 

Valle  V.  Oemens,  628. 

Vallette    v.    Bennett,    880. 

cxiv 


Van    Bibber    v.    Williamson,    56. 

Van    Brunt  v.   Wallace,    103. 

Van   Buren  i:  Olmstead,  246,   255. 

Van   Camp  r.    Fowler,   299,   306. 

Vance  r.    Fore,   590. 

Vance  v.   Johnson,  243. 

Vance  f.  Vance,  IK. 

Van    Cleaf   v.    Burns,    98. 

Van   Cortlandt   r.    Kip.  C42,   650. 

Van  Court  v.   Moore,  624. 

Vandall    v.    Martin,    497. 

Van    Danswyck    v.    Wiese,    632. 

Van  Dayne  v.  Thayer,  87. 

Vandegraff  z:  Medlock,  248. 

Vandecker  -■.   Rohrbach.  156. 

Van   Delt  v.   Dewitt,   71. 

Vanderhaize   z:    Hughes,    228,   234. 

Vanderhuevel  v.  Storrs,  166. 

Vanderkemp  v.    Shelton,   242,   273. 

Vandewalker  v.   Rollins,  308.  , 

Van   Doren  f.    Everitt,   58. 

N'andoren   v.  Todd,   218. 

Van  Dusen  i'.   Sweet,  556. 

Van   Duyne  z:   Shaun,   256,   273.  , 

Van    Duyne   f.    Thayer,   239. 

Van   Duzer  f.   Van   Duzer,  83. 

Vane   z'.    Barnard,    67. 

Van    Etta   r.    Evanson,    553. 

Van    Frank   z:    St.    L.    &    Cape   Girardeau 

R.   Co.,  281. 
Van  Gordon  z:  Jackson,  59.".. 
Van   Home  v.    Campbell,    S."?,    298. 
Van   Home  r.    Fonda,    187,   3GS. 
Vanhome's   Lessee  z:   Dorrance,   200. 
Van    Kleek    v.    Dutch    Ch.,    642. 
Van   Meter  z:  McFaddin,  216. 
Vanmeter    z:    Vanmeter,    236. 
Vann   z'.    Edwards,   74. 
Van  Ness  z'.  Hyatt,  239. 
Van   Ness  z\  Pacard,  66. 
Van    Olinda    z:    Carpenter,    321. 
Van  Order  z:  Van  Order,  118. 
Van  Pctt  z'.  McGraw,  266. 
Van    Ratcliff   z:    Call,    125. 
Van    Rensselaer    v.    Clark,    584. 
Van  Rensselaer  z'.  Dennison,   462,  626. 
Van    Rensselaer    j'.    Freeman,    1 5C. 
Van    Rensselaer    v.    Gallup,    149. 
Van   Rensselaer   -'.    Hays,    149,   460. 
Van   Rensselaer  v.    Kearney,   514,   622. 
Van  Ransellcr  v.   Penniman,   18,  156. 
Van   Rensselaer   t'.    Planter,   460. 
Van    Rensselaer   r.    Radcliffe,    426. 
Van  Rensselaer  r.   Read,   458,   400. 
Van   Rensselaer  v.    Smith,    145,   149. 
A'ansant   v.    Boileau,   634. 
Van  Santwood  v.   Sandford,  550. 
Van  Schuyver  f.   Hartman,  503,  504. 
Van    Sickle    z:    Catlett,    494. 
Van  Thorniley  v.   Peters,   583. 
Van    Vechton   v.    Keator,    640. 
Van    Vronker   7'.    Eastman,    90,    270. 
Van    Wagner   v.    Brown,    242. 
Van  Wagner  v.  Van  Nostrand.  612. 
Van  Wert   z'.   Benedict,   637. 
Van   Wyck   ?-.    Seward,    566. 
Varick  r.    Smith.    624,   642. 
Varnarsdall  z:    Fauntleroy,   80. 
Varney  »'.    Stenhens,   53. 
Varnum    z:    Meserve,    281. 
Varnum  v.   Winslow,   59. 


TABLE   OF   CASES   CITED. 


IReferences  are  to  Sections.] 


Varsey  r.    Stevens,   54. 

Vason    V.    Ball,    243. 

Vason   v.   Estes,  301. 

Vaughen    v.    Haldeman,    16. 

Vaughn    v.    Todman,    677. 

Vaughn   v.    Parr,   556. 

Vawter  t:  Crafts,  256. 

Veal   V.    Forbson,   556. 

Veal    V.    Robinson,    494. 

Veazie   v.   Parker,   582. 

Veddcr   v.    Evarston,    393. 

Veghte    V.    Rariton,    466,    467. 

Vcgh.e  V.   R.   VV.   P.   Co.,  435. 

\  cue   J-.    Clodgett,   368. 

Venable  i'.   Beauchanip,   187. 

Vcnoble  v.   Wabash   R.    R.,   102. 

Verplanck   v.    Sterry,   566. 

Verdier   v.    Verdier,    633. 

Vernon  v.   Smith,   147,  248. 

Vernon  v.    Vernon,   652. 

Vernor  v.   Coville,   410. 

Ver  Stceg  z:  Beckermoore,  132. 

Viall    ^■.    Carpenter,    433. 

Vickers  v.  Cowell,  274. 

Vickers  v.  Leigh,  30. 

Vickery   v.    Benson,    517. 

Vidal  V.  Girard,  331,  641. 

Videau  v.   Griffin,   571. 

Viele    V.    Tudson,    264,    584. 

Viele  V.    Van    Steenburg,    511. 

Viely   V.    Frankfort,   45. 

Villa  V.   Rodigues,  234. 

Village  of  Delphi  z'.  Youmans,  445. 

Villiers   v.    Villiers,    346,    371. 

Vincent   v.    Blanton,    557. 

Vincent  v.   Crane,   160. 

Viner    v.    Francis,    302. 

Viner  v.  Vaughan,  64. 

Virgin   v.    Land,    504. 

Vogel  V.   Shurtliff,   285. 

Vogely  V.   Robinson,   170. 

Vogle  V.   Ripper,   256. 

Vogler  V.  Geiss,  435. 

Volgen    z:    ifates,    329. 

Vollenweeder  v.  Vollenweeder,  530. 

Von   Axte  v.   Fisher,   298. 

Voorhees  v.   McGinniss,   13. 

Voorhies  v.    Burshard,   606. 

Voorhies  v.   Freeman,  13,  14. 

Voris  r.   Renshaw,  202. 

Vosburgh  z'.   Teator,   510. 

Vose  zj.   Dolan,   553. 

Vose  V.   Handy,  251. 

Voss  V.  King,  157,  188. 

Vrceland    v.    Ryno,    637. 

Vroom   V.   Ditmas,   278. 

Vrooman  z\   Shepherd,  498. 

Vrooman  v.  Turner,  253. 

Vyoyan  v.  Arthur,  147. 

W 

Wabash    R.   R.  v.  McDongal,   600. 
Waddington  v.  Bristow,  568. 
Wade  ?'.  Am.  Col.   Soc.,  641. 
Wade    V.    Beldmeir,    267. 
\Vade   V.    Brown,   558. 
Wade  V.   Greenwood,  217. 
Wade   V.    Howard,    242,    268. 
Wade   V.   Jones,    122. 


Wade    V.    Lindsay,    559. 
V\'ade    V.    Paget,    379. 
Wadleigh   v.    Janurin,    14. 
Wadsworth  v.   Loranger,  233.     . 
Wadsworth  z:    Williams,  258,   556. 
Wadsworthville    School    v.    Meetze,    158. 
Wafer    i'.    Mocato,   209. 
Wagner   z:    Breed,    236. 
Wagner   v.    Chaney,    445. 
Wagner   z:    McDonald,    631,    651. 
Wagner  v.    White,    152. 
Wagstaff    V.    Lowerne,    384. 
Wagstaff  z:    Smith,   348,   361. 
Wait    z:    Belding,    30. 
Wait   I.    Gove,    495,    497. 
Wait    v.    Maxwell,    556,    614. 
Waiter   v.    Hutchinson,    37L 
Wainwright   v.    Low,    577. 
Wainwright  z:    McCuUough,   599. 
Wainwright    v.    Sawyer,    372. 
Watt   V.    Watt,    417. 
Wake    V.    Halligan,    143. 
Wakefield   z:    Van   Tossel,   204. 
Walburton   v.   Camp,    373. 
Walcott    V.    Hamilton,    170. 
Walcott  z:    Sullivan,    261. 
Walden    v.    Bodley,    163. 
Waldrom   v.    Zacharie,   217,    218. 
Waldron   v.   Harvey,    195,    197. 
Wales  z:   Mellen,   237. 
Wales    I'.    Miller,    243. 
.Walker  v.    Carrington,   368. 
Walker   r.    Carroll,    218. 
Walker  v.   Crawford,   498.        ^ 
Walker  v.   Dement,  851. 
Walker    v.    Ellis,    164. 
Walker   v.    Fitts,    135. 
Walker   v,    Furbush,    164. 
Walker  v.  Grand  Rapids,  etc.,  Co.,  15. 
Walker  v.   Hall,   647. 
Walker  v.  Hill's  Ex'rs,  368. 
Walker   v.    Snediker,    257. 
Walker  v.  Jarvis,   275. 
Walker  z:   King,   243,  258. 
Walker  v.    Paine,   236. 
Walker   z:    Pitchard,    298,    408. 
Walker   v.    Public   Works,   599. 
Walker    v.    Quigg,    407. 
Walker  z'.    Rand,   236.  576. 
Walker   v.    Richardson,    150. 
Walker  z:    Sharpe,    168. 
Walker  z:  Walker.   275,  329. 
Walker   z:    Whiting,    365. 
Walker  z:  Williams,  198. 
Walker    Ice    Co.    v.    American    Steel    Co., 

162. 
Wall    v.    Club,    594. 
Wall    V.    Hinds,    143,    149. 
Wall  V.I  MaRuire,   393. 
Wall   r.    Trumbull,    533. 
Wall   V.    Wall,    631. 
Wallace  v.   Blair,   242. 
Wallace   v.    Bowens,   367. 
Wallace    v.    Brown,    638. 
Wallace    v.    Coston,    348. 
Wallace  v.  Crow,  589. 
Wallace    z:    Fee,    001. 
Wallace  v.   Harmstead,   458,   664. 
Wallace    f.    Johnstone,    231. 
Wallace  z'.  Kennelly,   156. 
Wallace   v.   Latham,    557. 

CXV 


TABLE   OP   CASES   CITED. 


[References  are  to  Seotiona.] 


tt'alUce  V.  l*wi»,  667. 

Wallace   t.    Minor,    306. 

Wallace  f.   Prcsb.   Church,  606. 

Wallace  r.   United   Pres.  Ch.,  489,  460. 

Wallace  v.   Wainwright,  S73,  874. 

Wallace  t:    WiUon,   S76. 

Waller   f.    Martin,    SO. 

Waller    v.    Tate.    239. 

Waller  v.  Waller,  033. 

Walley  v.   Small.   269. 

Walling  V.   Aiken,   2(32. 

Walmesley   v.    Jowett,    406. 

Walsh  v.   Barton,   026. 

Walsh  V.  Hill.  496. 

Walsh  V.  McBride.  867. 

Walsh   V.   Keis,    121. 

Walsh   r.    Kutgeis.   246. 

Walsh  f.   Young,   69.   556. 

Waltemeyer  v.  Baugman,  496. 

Waltermire   v.    Westovcr,    236. 

Walters   v.    Breden,    609,    627. 

Walters   t:   Jordan,    98. 

Walters  V.  P(eil,  448,  44'J. 

Walters  v.   Walters,   87. 

Walthall   t.    Kives,    iMT. 

Walton  V.  Ambler,  193. 

Walton    V.    Cromley,    139. 

Walton  f.   Drumtra,   33,  49. 

Walton    V.     Follansbee,    305. 

Walton  V.  Hargroves,  217,  218. 

Walton  V.   Waterhouse,   146,   157. 

Walton    i:    Walton,    648. 

Walworth    v.    Jenness,    160. 

Wamganz   v.   Wollf,    172. 

Wanner   v.    Wanner^  2U2. 

Warbass  !■.   Armstrong,  .184. 

Warburton    r.    Sands,    378. 

Ward  V.   Armory,   322,   371. 

Ward  V.   Armstrong,   303,    307. 

Ward    V.    Bartholomew,    bi.\). 

Ward   V.    Carter,    247. 

Ward   V.  Cooke,   263. 

VNard    v.    Crotty,    604. 

\\  ard  V.    Deering,   231. 

Ward  V.    Farmer,   186. 

Ward   V.    Fogan,    146. 

Ward    V.    Fuller,    92. 

Ward  V.   Huhn,   123. 

Ward  V.  Lewis,  873,  880. 

Ward  V.   Lumley,   156. 

Ward  V.    Putnam,  632.   633. 

Wnrds  v.    Rapps,   466. 

Ward   V.    Ross,    677. 

Ward   V.    Small's  Admrs.,   578. 

Ward  V.   Taylor,  13. 

Ward  V.   Ward,   259.  294. 

Warden    v.    Watson,    4. 

Warden   v.  Adams,  250. 

Warden   v.   Richards,  376. 

Ward's   Exr.   v.    Hayne.   582. 

Ware   v.    Bedford,    529. 

Ware    v.    Polhill,    419. 

Ware  v.  Ware,  68. 

Ware  v.   Washington,   86. 

Warfield    v.    English,    407. 

Waring  v.    Loder,   248. 

Wark  V.   Willard,    616. 

Warley  v.  Warley,   54. 

Warner  v.    Beach,   647. 

Warner  v.  Bennett,  207. 

Warner   v.    Blakeman,    280. 

cxvi 


Warner   v.    Brooks,    286, 

Warner    i\    Bull,    559. 

Warner  v.   Cochrane.   139.   159. 

Warner   v.    Cushman,   447. 

Warner   f.   Hitchins,    146. 

Warner    r.    Steer,    367. 

Warner  r.  Van  Alstyne,  94,   217. 

Warner   i:   Willard,  31. 

Warner  v.    York,   242. 

Warren    v.    Blake,    432. 

Warren   v.    Coggswell,    592. 

Warren   v.    Fenn,   217,    218. 

Warren   v.   Fredericks,    504. 

Warren  v.    Homestead.   250. 

Warren   v.   Leland,   4. 

Warren   v.    Lovis,    229,    232. 

Warren  v.   Lynch.   552,   672. 

Warren  v.   Swett,   577. 

Warren  v.  Warren,  242,  290. 

Warren    v.    Williams,    80. 

Warriner   v.    Rogers,    373. 

Warwick    f.    Bruce,    563. 

Warwick   v.    Warwick,   632. 

Washabaugh  v.   Entrickcr,   oil. 

Washband    v.    Washband,    666. 

Washburn  v.  Gilman,  444. 

Washburn    v.    Goodwin,    239. 

Washburn  v.  Hammond,  266. 

Washburn  v.   Merrills,  233. 

Washington  Nat.  Gas  Co.  v.  Johnson,  139. 

Washington  Rock  Co.  v.  Young,  590. 

Wasmund    v.    Harm,    429,    434. 

Wass   V.    Buchnam,    80. 

Wasson   v.    Pettis,    140. 

Waterfall    v.    Peniston,    15. 

Waterman   t.-.   Curtis,   244. 

Waterman  v.  Johnson,   600. 

Waterman   ?■.    Smith,    521. 

Waters    v.    Bishop,    305. 

Waters   v.    Breden,    201,    202. 

Waters   v.    Crabtree,    229. 

Waters    v.    Gooch,    112. 

Waters   v.   Groom,    279. 

Waters   v.    Margerson,    410. 

Waters  r.    Randall,  231,   234. 

Waters    v.    Stewart,    239. 

Waters   v.   Young,    168. 

Waters*    Estate    v.    Bagley,    624. 

Watkins    v.    Edwards,    582. 

Watkins  v.   Gregory,   230. 

Watkins  r.    Holman,    34,   528. 

Watkins  v.   Koolin  Mfg.  Co.,  243. 

Watkins    v.    Lynch,    495. 

Watkins   v.    xVugent.    204. 

Watkins   v.    Vrooman,    228. 

Watron   v.    Blair,   586. 

Watson   V.    Cressy,    543. 

Watson    V.    Dickens,    243. 

Watson    V.    Dundee    Mortgage,    etc,    Co., 

261,   582. 
Watson   V.   Foxon,  304. 
Watson  V.   Harrigan,   296. 
Watson   V.    Hipes.    633. 
Watson  V.   Hunter,   68. 
Watson   V.   Manard,   496. 
Watson   V.    Menter,    7. 
Watson  V.  O'Hern.  135. 
Watson   V.   Pipes,   633. 
Watson    !'.    Spence,    243. 
Watson   V.   Sutro,   195,   406. 
Watson  V.   Thompson,    368. 


TABLE   OF    CASES    CITED. 


[References  are  to  Sections.] 


Watson  V.  Watson,   109,  294. 

Watson  V.   Wells,   217. 

Watt  V.   Watt,   273. 

Watterson   v.    Ury,    210. 

Watts   V.    Ball,    79. 

Watts   V.    Bonner,    255. 

Watts  V.   Coffin,   245. 

Watts  V.   Julian,   ^73. 

Watts    V.    Miller,    124. 

Watts   V.    Owens,    495. 

Way   V.    Arnold,    514. 

Way  V.   Reed,    143,    148. 

Way   V.    Scott,    12G. 

Way    V.    Way,    15. 

Wayman   v.   Jones,    252,    284. 

Wead   V.    Larkin,    6^4. 

Weale   v.    Lower,    297. 

Weare  v.   Linnell,   307. 

Weart    v.    Cruser,    39. 

Weatherhead  v.   Stoddard,  301. 

Weatherly   v.    Wood,    G3. 

Weathersley  v.   Weathersley,  251. 

Weaver   v.    Belcher,    245. 

Weaver    v.    Emigrant,    etc.,    Sav.     Bank, 

874. 
Weaver  v.    Spurr,    373. 
Webb    V,    Fleming,    633. 
Webb    V.    Garrett,    123. 
Webb  V.  Haselton,  253. 
Webb   V.   Homken,   565. 
Webb  V.   Mulins,    554,   567. 
Webb  V.    Patermoster,    465. 
Webb  V.   Robbins,    433. 
Webb  V.   Robinson,  217. 
Webb   V.    Trustees,    etc..    Baptist   Church, 

78. 
Webb  V.  Walters,  591. 
Webber  v.  Axtell,   489. 
Webber   v.    Shearman,    164. 
Weber  v.   Harbor   Commrs.,   598, 
Weber  v.    Weber,  361. 
Webster  v.   Boddington,  399. 
Webster  v.  Calden,  240. 
Webster  v.   Calef,    191. 
Webster  v.  Chicago,  533. 
Webster   v,    Conley,    144. 
Webster  v.   Cooper,  207,   322. 
Webster  v.    Ellsworth,    310. 
Webster   v.    Oilman,    638. 
Webster  v.   Peet,  63. 
Webster  v.  Potter,  9,  606. 
Webster  v.  Vandeventer,  176,  273. 
Webster  v.  Webster,  57. 
Webster   v.    Welton,    388. 
Weddell  v.  Hapner,  445. 
Wedderbum  v.  Wedderburn,  388. 
Wedekind  v.   Hallenberg,   301,   321. 
Wedge    V.    Moore,    87,    92. 
Weed  V.   Coville,   236. 
Weed   V.    Crocker,    136. 
Weed    Sewing  Machine   Co.    v.    Emerson, 

253,  257. 
Weekland  v.   Cunningham,  608. 
Weeks   v.    Cornwell,    640. 
Weeks  v.  Martin,   494,   592. 
Weeks  v.   Ostrander,  242. 
Wecms    V.    McCaughan,    623. 
Weers  v.   Rademacher,  867. 
WeM  V.  Villers,  858. 
Weichelsbaum   v.   Corlett,    167. 
Weide  v.  Gebl,  229. 


Weideineger   v.    Landon,   283. 

VV'eidekin   v.   Snelson,   445. 

Weideman  v.  Pech,  249. 

Weil    V.    Uzzett,    275. 

Weinreich    v.    VVeinreich,    202. 

Weinstein   v.   Harrison,    146,    151. 

Weinstein  v.   Weber,  403. 

Weir  V.  Field,  273. 

Weir  V.  Fitzgerald,  633. 

Weir  V.   Simons,  2U5. 

Weir  V.   Tate,   86. 

Weisbrod  v.  C.  &  N.   N.  R.  R.,  601. 

Weiser  v.   Weiser,  199. 

Weishaupt  v.    Brehman,   642. 

Weisinger  v.   Murphy,    186. 

Welborn  v.  Anderson,   494. 

Welborn   v.    Dixon,   233. 

Welborne  v.   Dowing,  127. 

Welch  V.   Adams,  245,   633. 

Welch  V.  Agar,  195. 

Welch  V.  Allen,  371. 

Welch  V.    Anderson,    118. 

Welch   V.    McKenzie,    86. 

Welch   V.    Phillips,   603. 

Welch  V.  Welch,  72. 

Weld   V.    Bradbury,    388. 

Weld   V.    Traip,    617. 

Welland  Canal  vt  Hathaway,  508. 

Wellington   v.    Gale,   239. 

Wellington   v.  Janvrin,    204. 

Wells,   V.    Beau,    108. 

Wells  V.   Castles,    151. 

Wells  V.  Chapman,   187. 

Wells  V.   Company,    603. 

Wells   V.    Harter,    217,    218. 

Wells   V.    Heath,    371. 

Wells  V.  Jackson  Mfg.  Co.,  493,  596. 

Wells  V.    Lceley,   298. 

Wells   V.    Lewis,    378. 

Wells  V.   Morrow,  219,  580. 

Wells  V.  Seeley,   471,  637. 

Wells  V.   Sheerer,   135,   157. 

Wells   V.    Wells,    648. 

Welsh    V.    Beers,    289. 

Welsh  V.    Buckings,   96. 

Welsh  V.    Chandler,   77. 

Welsh  V.   Cooley,   278. 

Welsh  V.   Phillipps,  250. 

Welsh  V.   Sackett,  576. 

Welsh  V.   Solenberger,  88. 

Welsh   V.    Usher,    215. 

Wendell    v.    Crandall,    308. 

Wendell  v.    Fisher,   510. 

Wentworth   v.    Philpot,   431. 

Wenzel   i'.   Weigland,  232. 

Weiner  v.  Tuch,  256. 

Wescott   V.    Delano,   4,   466. 

West  V.  Adams,  246. 

West   V.    Bernly,    405. 

West   V.    Hayes,    269. 

West  V.   Hendrix,  231. 

West   V.    Hughes,   621. 

West  V.  Reynolds,  310. 

West  V.   Stewart,    600,   619. 

West    V.    West,    195. 

West    Coast    Mfg.    &    Inv.    Co.    v.    West 

Coast  Imp.   Co.,  625. 
West   Point   Iron  Co.  v.   Reymert,   608. 
West  River  Bridge  Co.  v.   Dix,  456. 
West   Roxbury  v.    Stoddard,   600. 
West   Shore  Co.   v.   Wenner,   148. 

cxvii 


TABLE   OP   CASES   CITED. 


[References  arc  to  Sections.] 


\Vc$t  Tramp.  Co.  f.  Lansing,  130,  147. 
Wcstbruok   f.    Gleason,    58f>. 
Westerly    Sav.    Bank   v.    Stillman.    228. 
Western    N.   Y.,   etc.,   K.   R.   Co.  f.    Rich- 
ards,   &U9. 
\N  estcrn  R.  R.  t .   Babcock,  577. 
Westervclt    f.    Peoiile,    1. 
Westmoreland    s.    Carson,    590. 
Westmoreland   .\at.   Gas  Co.   v.   De   Witt, 

608. 
Weston   V.  Woodcock,    18. 
Wetherington  r.   Williams,  190. 
Wetherly  :■.    Strauss,    l-'ti. 
Wettlanfer  r.   Ames,   85. 
Weyand    v.    Tipton,    5'J9. 
Wetyen  v.   Fick,   85. 
Whaley   v.   Cailman,    122. 
Wbalin  v.  White,   157,  27.5. 
Whaling  Co.   v.    Borden.   185. 
Whalley  v.  Thompson,  606. 
Wharf  f.  Howell,  236. 
Wharton  v.   Wharton,   38. 
Whatley  v.  Small,  584. 
Whatman   v.   Gibson,   433. 
Whayne   r.    Morgan,    126. 
Wheatlcy  f.   Barker,   45. 
Wheatley  v.   Calhoun,   86. 
Whcaton   v.   East,   614.' 
Wheelcock  v.  Thayer,  615. 
Wheeler  f.   Bates,   491. 
Wheeler  t-.    Brown,   608. 
Wheeler  v.  Dascombe,  148. 
Wheeler  v.  Durant,  631. 
Wheeler   v.    Earl,   148. 
Wheeler   v.   Gage,    126. 
Wheeler   t-.    Kirkendall,    69. 
Wheeler   ?•.   Kirtland.   583. 
Wheeler  v.   Monteflore,   131. 
Wheeler    v.    Reynolds,    368. 
Wheeler   v.   Smith,   99,   373. 
Wheeler  v.    Sohier,   624. 
Wheeler  v.  Spinola,  504,  600. 
Wheeler   v.    Walker,   201. 
Wheeler  v.   Wayne   Co.,   619,   620. 

\\'heeler    v.    Wheeler,    647. 

Wheeler   &   Wilson    Co.    v.    Howard,   272. 

Wheelwright  f.  Freeman,  275. 

Whelon   v.    Reilly,   280. 

Whetsel    r.    Roberts,    217. 

Whetstinc   f.    Wilson,    653. 

Whetstone  v.    Bury,   343. 

Whilton  V.  Whilton,  178,  593. 

Whipple  V.   Foot,  4,  529. 

Whipple  t'.  Whipple,  498. 

Whitaker   ?'.    Brown,   608. 

Whitaker  r.   McBride,  507.  599. 

Whitaker    i'.    Summer,    529. 

Whitaker  v.   Whitaker,   576. 

Whitaker    v.    Williams,    510. 

Whitbeck  v.  Cook,   615,   617. 

Whitbread    ex   parte,    213. 

Whitby   X'.    Duffy.   609. 

Whitcomb  v.  Cardell,   373. 

Whitcomb  :•.    Simpson,   254. 

White  r.  Bailey,  579. 

White  T.    Barlow,   606. 

White  I'.    Brocaw,    512,   622. 

White   V.    Brown,   248. 

\\'»iite  T.  Cpsenave's  Heirs,  217. 

While    i:    Cinnellv.    574. 

White    f.    Cutler.    57. 

cxviii 


White   V.    Danforth,    12S. 
U'hite   V.    Dedman,    34. 
White  V.   Denman,  260,   588. 
White  r.   Dresser,   448. 
White  V.   Drew,   368. 
White   V.    Downs,    219. 
White   r.    Elwell,    406. 
White   V.    Foster,    584,    608. 
White   z:    Fox,   02,   68. 
White    V.    Fulghum,    126. 
White   V.    Fuller,    559. 
White  V.  Godfrey,   601. 
White  V.    Hampton,    375. 
White    V.    Hicks,    640. 
White  V.  Hopeman,  497. 
White  V.   Hopkins,   631. 
White   V.    Howard,    638. 
White   V.    Hulme,    73. 
White    V.    Hunt,    140. 
White   V.    Livingstone,    135. 
White  V.   McMillan,   230. 
White  V.    Montgomery,   161. 
White   V.    Moore,    480. 
White   V.    Moses,    528. 
White   V.    Patten,    511,    582. 
White   V.    Rittenmeyer,    239,    250. 
White   V.    Rukes,    562. 
White  V.   Sheldon,   447. 
White  V.   Smith,   243. 
White    V.    Stanfield,    401. 
White   V.    Stevens,    264. 
White  V.   Stevenson,   236. 
White    V.    Story,    105. 
White  V.   Sutherland,   253. 
White    V.    Thurber,    144. 
White  V.    Wagner,    66. 
White  V.  White,  52,  118. 

White  V.   Whitney,   2."j2. 
White  V.   Williams,   218,   603. 

White   V.    Woodbury,    30. 

Whitehead  v.   Clifford,    156. 

Whitehead  v.  Comstock  Co.,   146. 
Whitehead    v.    Hellen,    279. 

Whitehead   v.   Middleton,   87. 

Whitehead    v.    Slonor,    180. 

Whitehead   v.    Whitehead,    282,   377. 

Whitehead  v.  Wooten,  245. 

Whitely    v.    McLaughlin,    ICl. 

Whitemarsh  v.   Walker,   467. 

Whitenack  v.  Stryker.   033. 

White's   Bank  of   Buffalo  r.    Nichols,   433» 

Whitesides   v.    Whitesides,    640. 

Whitewater  Canal  t.  Comegys,  68. 

Whiting  V.    Whiting,    498. 

Whitley   v.   Davis,   572. 

Whitmarsh  v.  Cutting,   50. 

Whitmarsh  r.   Walker,   16,   58. 

Whitmire   x'.    Wright,    86. 

Whitmore    v.    Learned,    367. 

Whitmore  v.   Paper   Co.,   161. 

Whitney   v.    Allaire,    131. 

Whitney  v.    Allen,    275. 

Whitney    v.    Buckman,    236. 

Whitney   v.    Dewey,    605. 

Whitney  v.  Dinsmore.  616. 

Whitney  v.   French.   226. 

Whitney    v.    Kindell,    lOrv 

Whitney   v.    M^'-^HaP.    532. 

Whitney  v.  McKinney.   253,   274. 

^V'hitney  -•.   Mfc.  Co..  255,  266. 

Whitney  v.  Myers,   150. 


TABLE   OF   CASES    CITED. 


[References  are  to  Sections."] 


Whitney  v.  Olney,   606. 

Whitney   v.    Parker,    197. 

Whitney   v.    Raynor,   246. 

Whitney    v.    Slater,    300. 

Whitney  v.  Traynor,   253. 

Whitney   v.    Wheeler    Cotton    Mills,    447, 

436. 
Whitstone   v.    McCartney,    143. 
Whittaker  v.  Hawley,  151. 
Whittaker  v.  Hicks,  177. 
Whittaker   v.    Miller,    577. 
Whittaker   v.   Perry,    173. 
Whittaker    v.    Whittaker,    301, 
Whittemore  x\  Russell,  40r. 
Whittier    v.    Dow,    275. 
Whittier  v.  Winkley,   439. 
Whittington  v.  Clark,  572. 
Whittington   v.    Wright,    495. 
Whittlesey    v.    Fuller,    183. 
Whittlesey   v.    Hughes,    282. 
Whitton  V.  Whitton,  71,  76. 
Whitworth   v.    Gangain,    214. 
Whitworth    v.   McKee,    121. 
Wholey    v.    Cavanaugh,    547. 
Wibb   V.    Richardson,   504. 
Wickham    v.    Hawker,    465. 
Wigg    V.    Davis,    266. 
Wiggin   V.    Heyward,   239. 
Wiggins   V.    Perkins,    640. 
Wilbraham    f.    Snow,    190. 
Wilbur  V.   Grover,   577. 
Wilcox    V.    Jackson,    579. 
Wilcox    V.    Smith,    497. 
Wilcox    V.    Wheeler,    30. 
Wilcoxson   V.   Miller,   583. 
Wilcoxson   V.   Sprague,   567. 
Wild   V.    Deig,   525. 
Wild  V.  Traip,  132. 
Wilde   V.    Armsby.   554. 
Wilder    v.    Butterfield,    583. 
Wilder  v.   Davenport,   694,   626. 
Wilder  v.   Houghten,   245,   272. 
Wilder  v.    Ireland,    615. 
Wilder  v.  St.   Paul,  435. 
Wilder  v.  Thayer.   647. 
Wilder    v.    Wheeler,    80. 
Wilder    v.    Whittmore,    237. 
Wilder's   Exec.  v.   Wilder.   300. 
Wildey   v.   Barney's    Lessee,    193. 
Wilds   V.    Toms,    85. 
Wild's  Lessee  v.  Serpell,  157,  158. 
Wiley   T'.    Ewing,   255. 
Wiley  V.   Pierson,   274. 
Wiley   V.   Wiley,    67. 
Wilford  V.   McKinna,  593. 
Wilhoit    V.    Salmon,    576. 
Wilhoit    V.    Tubbs,    505. 
Wilkerson   r.    Clark,   321. 
Wilkerson  v.  Thompson,   498. 
Wilkes    V.    Back.    569. 
Wilkes   V.    Holmes,    417. 
Wilkes    V.    Lion.    296,  '393. 
Wilkesbarrc  v.   Historical   Soc,   80. 
Wilkins  V.    French,   241. 
Wtlkins   V.    Wells.    573. 
Wilkins    V.    Wilkins,    273. 
Wilkinson    v.    Flowers.    245. 
Wilkinson    v.    G'tty,    560. 
^'i'kinson   v.   Leland.   520,  638. 
Wilkinson   v.   Mann.    3S0. 
Wilkinson   v.    Parrish,   86. 


Wi'kinson    v.    Scott,    565. 

Wilkinson  v.   Sherman,  305. 

Wilkes  V.   Vaughn,   283. 

Willard   v.    Eastham,   558. 

Willard    v.    Finnegan,    i55,    275, 

Willard  V.   Harvey,  254. 

Willard  v.   Henry,    207. 

Willard    v.    Reas,    217. 

Willard   v.    Willard,    195. 

Willard  v.   Wood,   253. 

Willes  V.   Loomis,    191. 

Willet  V.   Beatty,   90. 

Willett    V.    Johnson,    251. 

Willett  V.    Sanford,   342. 

Willett   V.    Winnelly,    225. 

Willetts  V.  Burgess,  234. 

Willett's   Admr.   r.    Rutter's  Admr.,   301. 

Willford  V.  Heimhoffer,   I'o. 

Williams   v.   Angell,   206,   321. 

Williams  v.    Baker,    515,    574. 

Williams  v.   Balton,   08. 

Williams    v.    Beard,    585. 

Williams   v.    Beekman,    025. 

Williams  v.    Bosanquet,    139. 

Williams    v.    Brownlee,    242. 

Williams   v.    Bryant,    562. 

Williams   v.    Burnett,    632. 

Williams  v.    Burrell,    147. 

Williams  v.   Cash,   498. 

Williams  v.   Caston,   53. 

Williams  v.  Christian,   219. 

Williams  v.  Dakin,  208. 

Williams  v.    Davis,    566.  • 

Williams  v.   Deriar,   167. 

Williams  v.  Dwinelle,  380. 

Williams  v.   Flood,  466. 

Williams  v.  Garrison,   157. 

Williams   v.   Gibson,    5. 

Williams    v.    Hilton,    269,    274. 

Williams   v.    Ins.    Co.,    248. 

Williams  v.  James,   438. 

Williams  v.   Lewis,   393. 

Williams  v.   Luizee,   533. 

Williams  v.  McKinney.  31,   640. 

Williams   v.    Moreland,    444. 

Williams  v.   Owen,  231. 

Williams  v.   Pearson,  641. 

Williams  v.   Peyton's   Lessee,   632. 

Williams   v.    Rice,    219. 

Williams  v.   Robinson,  245. 

Williams  v.   Silliman,   236. 

Williams   v.    Sorrell,    250.  ' 

Williams    v.    Stratton,    215. 

Williams  v.    Sullivan.   577. 

Williams  v.  Tatnall.  260. 

Williams  v.  Thurlow,  254. 

Williams  v.  Townsend,    272. 

Williams  v.   Triche,   8. 

Williams   v.    Vreeland,   368. 

Williams  v.  Wescolt,   86. 

Williams   v.    Whitaker.   .124. 

Williams  v.  Williams.   301.  583. 

Williams   v.   Woods.    90,   217. 

Williams   v.   Worthington.    373. 

Williamson  v.   Beekbam,   73. 

Williamson  v.   Carlcton,   545. 

Williamson  v.  Champlin.  276. 

Williamson   v.   Daniel,   397. 

Williamson    v.    Field.   297.    301. 

Williamson    v.    Tones.    64. 

Williamson   v.   New   Albany    R.    Co.   245. 

cxix 


TABLE   OF   CASES   CITED. 


[References  are  to  Sections.] 


Williamson  f.   N.  J.   Southern,  2. 

Williamson  v.  Stone,   278. 

Williamson   f.    Test,    6ii. 

Williamson    i:    Wilkins,   381. 

Williamson  v.    Williamson,  321. 

Williamson   v.   Vager,   70. 

WiUiamston   R.   R.  i'.   Battle.  467. 

WiUink   T'.    Morris   Canal,   238. 

Willion    f.    Burkley,    2'JS. 

Willis    f.     Farley,    251. 

Willis  f.   Harrcll,    1(}2,   164. 

Willis    V.    Hiscox,    204. 

Willis  r.   Jenkins,  C40. 

Willis  t'.   Loomis,    1U8. 

Willis    f.    Mike,    126. 

Willis   V.    Watson,    471. 

Willison   V.   Watkins,    158. 

Willot  i:  Sanford,  521. 

Willoughby    t:    Horridge,    456. 

Willougliby   V.   Motley,    482. 

Wills  t.   Rcid,   4ai>. 

Wills  f.   Wills,  301. 

Wilmarth   f.    Bancroft,    2Co. 

Wilmarth  v.  Johnson,  269. 

Wilmers  v.   Robinson,   49. 

Wilmington  &  W.   R.  Co.  v.  Alsbrook, 

Wilmoth   V.    Gassett,    123,    127. 

Wilms   V.   Jess,    5,    448. 

Wilsey   v.    Dennis,    570,   678. 

Wilson   I'.   Albert,    247,   547. 

Wilson   V.    Beddard,    632. 

Wilson  r.    Bell,   532. 

Wilson    i:    Bennett,    509. 

Wilson  V.   Braden,    574. 

Wilson  V.  City  of  Bedford,  445. 

Wilson  V.   Cochrane,   614. 

Wilson   V.   Craig,   98. 

Wilson  t:  Daniels,  127. 

Wilson   V.   Davisson,    221. 

Wilson   V.   Delaplainc,    149. 
Wilson  V.   Edmunds,  06. 
Wilson  V.    Fleming,   183. 
Wilson   f.   Forbes,  599,   614. 
Wilson  V.   Forlset,   647. 
Wilson  V.  Frost,  294. 
Wilson  z:  Gadient,   247. 
Wilson  V.   Gaines,   408. 
Wilson  V.   Hill,   248,   518. 
Wilson  V.   Kelly,   480. 
Wilson  V.  King,  253. 
Wilson    T'.    Langhorne,   307. 
Wilson  V.  Lyon,   217. 
Wilson   V.    Malthy,    265. 
Wilson  V.   Martin,   186. 
Wilson   V.   McEwan,    493. 
Wilson   V.  McLenaghan,  101. 
Wilson   V.    Moore,    221. 
Wilson   V.   Odell,   642. 
Wilson   V.   Patrick,   231. 
Wilson    V.    Piper,    463. 
Wilson   V.   Rodema'n,   168. 
Wilson   V.    Russell,    236,    263. 
Wilson  V.   Shocnberger,  229,   588. 
Wilson    V.    Schoenlamb,   257. 
Wilson   V.   Smith,    158,   582. 
Wilson    V.    Treadwell,    146. 
Wilson    V.   Troup,    250,    404. 
Wilson  V.  Towle,   876. 
Wilson   V.    Watkins,    157. 
Wilson  V.   Wcidenham,   626. 
Wilson   V.    Welch,    599. 

cxx 


Wilson   V.   White,   242,    898. 

Wilson    V.   Williams,    495. 

Wilson   V.   Wilson,   269,   393. 

Wilson   V.   Wood,   168. 

Witt  V.   Franklin,   329. 

Wilthaus   V.   Schack,    113. 

Wilton   V.   Mayberry,   204. 

Wiltshire  v.   Sidford,  450. 

Wimple  V.    Fonda,   298. 

Winans  v.  Peebles,   665. 

Winant  v.  Hines,  156. 

Winborne  v.  Downing,  30,  613. 

Winchelsea    v.   AVentworth,    356. 

Winder   v.    Little,    113. 

Windham   v.    Portland,    85, 

Windsor  v.  Simpkins,   195. 

Winestein  v.   Marks,   558. 

Winfield  z:   llcnning,  626,   433. 

Wing   V.    Cooper,    222,    277. 

Wing   V.   Goodman,    219. 

Wing  V.  Gray,   10. 

Wing  V.   McDowell,  262. 

^Vi^gcrtcr  v.  Wingerter,  368. 

Winkficld  V.  Brinkman,  308. 

VVinkleman    v.    Winkleman,    126. 

Winn   r.   Abclls,    497. 

Winn   V.   Cabot,   592. 

Winn  V,   Liltlcton,   241.  • 

Winnepesaukee,     etc.,    Assn.    v.    Gordon, 

433. 
Winningham    z:    Pennock,    016. 
Winshectcr  v.    Keith,    85. 
Winship    v.    Pitts,    66. 
Winslow    V.    Chiffclle,    185. 
Winslow   V.   Clark,   266. 
Winslow  V.   Kimball,   634. 
Winslow  V.  King,  601. 
Winston  v.  Burrell,  203. 
Winston   v.   Johnson,    608. 
Winter  v.   Brockwell,   435,   467. 
Winter  v.  Peterson,  601. 
VVinterbottom   v.   Ingham,    166. 
Winters  7'.   Davis,    125. 
Winters  v.    De  Turk,   85. 
Wisconsin  Ag.  Co.  v.  McKenna,  579. 
Wisdom    V.    Newberry,    146. 
Wise  V.  Griffith,  273. 
Wiseman  v.    Luckinger,   465. 
Wiswall  f.    Ross,   573. 
Witezicski   v.    Everman,   263. 
Withers   v.    Baird,    574. 
Withers   v.   Jenkins,   75,    126. 
Withers    v.    Larrabee,    164, 
Withers   v.    Sims,    301. 
Withers  v.   Withers.   367. 
Witherspoon   v.    Dunlap,    192. 
Withington   z'.    Warren,    575. 
Withnell    z:    Petzold.    104. 
Withy  V.  Munford,   614,  624. 
Witman    v.    Lex,    641. 
Witt  V.  Harlan,   574,   590. 
Witt    V.    Mayor    of    New    York,    167. 
Witte  V.  Quenn,   168. 
Witter  V.  Harvey,  601. 
Wittington   v.    Clarke,    572. 
Woerz   V.    Rademacher,    406. 
Wofford  V.  McKinna,  632,   590. 
Wolcott  V.   Sullivan,   250. 
Wolcott  V.  Winchester,  251. 
Wolcott   V.   Wolcott,    207. 
Wolf  V.    Frost,   465. 


TABLE   OF    CASES   CITED. 


[References  are  to  Sections.] 


Wolf  V.  Johnson,  157. 

Wolfe  V.  McMillan,  231. 

Wolfe   V.    Van    Nostrand,    393. 

VVolfer  V.  Hemnier,  298. 

Wolford  V,    Farnum,   374. 

Wolford  V.    Herrington,    368. 

Wollaston    v.    Hakcwell,    139. 

Wolverton    v.     Collins,    577. 

Womack    f.    Womack,    556. 

Wood  V.  Appal,  598. 

Wood   V.   Augustine,    236. 

Wood    V.    Boyd,    608. 

Wood  V.   Bryant,   195. 

Wood   V.    Camden,    etc.,    Tr^ist    Co., 

Wood  V.    Chambers,    560. 

Wood  V.  Cochrane,  574. 

Wood    I'.    Farmere,    582. 

Wood  V.    Felton,    271. 

Wood  V.   Ferguson,  521. 

Wood  V.   Fleet,    193,    197. 

Wood  V.    Goodridge,   571. 

Wood  V.  Griffin,  06. 

Wood   V.    Hilderbrand,    554. 

Wood  r.   Holland,   275. 

Wood  V.   Hubbel!,    132. 

Wood  V.  Kelly,  600. 

Wood   V.    Kice,    45. 

Wood  V.  Leadbitter,  466. 

Wood  V.   Little,   197. 

Wood   V.    Mann,    530. 

Wood  V.  Mason,  301. 

Wood    V.    Mobile,    291. 

Wood  V.  Moorhouse,  273. 

Wood  I'.    Oakley,    27:!. 

Wood  V.   Page,    169,    170. 

Wood  V.   Reeves,   238,  259. 

Wood    V.    Robertson,    30. 

Wood  V.   Sugg,   195. 

Wood  V.  Wood,  98,  649. 

Woodbridge  v.   Wilkins,   105. 

Woodbury    v.    Fisher,    576. 

Woodbury  v.   Luddy,   127. 

Woodbury   v.    Parshlly,    467. 

Woodbury  v.  Woodbury,  169. 

Woodman   v.    Good,    380. 

Woodman   v.    Smith,    606. 

Woodrief  v.   Wester,  300. 

Woodruff   V.    Adams,    10. 

Woodruff  V.   Robb,  282. 

Woods  V.    Bailey,   217. 

Woods  V.   Banks,   494. 

Woods   V.    Freeman,    533. 

Woods   V.    North,    514,   614. 

Woodward   v.    Brown,    163. 

Woodward  v.  Conder,  160. 

Woodward  v.  Gates,  62,  08. 

Woodward  Homes  Co.  t-.   Mudd,  86. 

Woodward  v.   Tames,  640. 

Woodward  v.  McReynolds,  498. 

Woodward  v.   Seaver,  558. 

Woodward  v.   Sibert,   367. 

Woodward  v.  Woodward,  217,  644 

Woodworth   v.   Paige,   97. 

Wool   V.    Fleetwood,   640. 

Wool   V.   Walbridgc,    156. 

Woolcut   V.   Lerdell.    127. 

Woolery  v.  Woolery.  648. 

Wooley  V.   Paxton,  640. 

Woolf   V.    Barnes.    360.    87«. 

Woolford  V.    Granttville,   827. 

Woolley  V.  Schrader,  191. 


Woollsey  v.   Morss,   498. 

Woolridge    v.    Wilkins,    86,    94. 

Woolsey   v.    Bohn,   264. 

Woolsey  v.  Donnelly,  168. 

Woolsey    v.    Henke,    549. 

Woolston   V.   Woolston,    415. 

W'oolworth   V.    Root,    498. 

Wooster   v.   Hunt's    Lyman    Iron    Co.,   85. 

Worcester   v.    Georgia,    485,    519. 

Worcester   v.    Lord,    497. 

Worcester    v.    Worcester,    302. 

Worcester   City   Mission.   Soe.  v.   Menich, 

641. 
Workman  v.   Greening,   233. 
World   Bld'g  Co.  v.  Martin,  59. 
Worrall    v.    Munn,    579. 
Worrill    v.    Wright,    397. 
Worthington  v.   Grimson,   427. 
Worthington    z'.    Hewes,    626. 
Worthington    v.    Hylyer,    590. 
Worthington   v.    Lee,    273,    274. 
Wragg  V.   Comptroller   Gen.,   217. 
Wren   v.   Parker,    495. 
Wrenbrenner  z'.  Weisinger,  126. 
Wrenn    v.    Gibson,    197. 
Wright  V.    Barlow,   411. 
Wright   V.    Barrett,   631. 
Wright   V.    Bates,    235. 
Wright  V.    Brown,    73.  f 

Wright  V.   Burroughs,  207. 
Wright  V.    Cartwright,   357. 
Wright  V.  City  of  Council  Bluffs,  487. 
Wright   V.    Dame,    217. 
Wright    V.    DeGroff,    100. 
Wright   V.    Douglass,   583. 
Wright  V.  Duflfield,  220. 
Wright   V.    Eaves,    247,    250. 
Wright    V.     Herron,    78. 
Wright  V.   Holbrook,  28fi. 
Wright   V.    Howard,    429. 
Wright  V.   Howell,   566. 
Wright   V.    Jennings,    116. 
Wright   V.   Jones,    193. 
Wright   V.    Lattin.    153. 
Wright  V.   Lewis,  633. 
Wright   V.    Parker,   251. 
Wright  V.   Roberts,  166. 
Wright   V.    Rose,    239. 
Wright   V.   Shaw,    512. 
Wright   V.    Shelby,   579. 
Wright  V.   Sperry,  247. 
Wright  V.   Stevens,  308. 
Wright  V.  Straub,  126. 
Wright  V.    Swan,   521. 
Wright   V.    Tallmadge,    404. 
Wright  V.  Tichenor,  494. 
Wright   V.   Wakeford,   411. 
Wright  V.   Westbrook,  52,   408. 
Wright  V.   Wright,   385,   404. 
Wyatt  V.   Burwcll,   584. 
Wyatt   V.    Harrison,    448. 
Wyatt  V.   Stewart,  229,   260. 
Wyble   V.    McPheters,    373. 
Wyeth   V.    Stone,    640. 
Wyman   v.    Babcock,   247. 
Wyman    v.    Ballard,    625. 
Wyman   v.    Briglen,   35. 
Wyman  v.   Brown,  236.  245. 
Wyman  v.  Simmcs,  634. 
Wyndham  v.   Way,   68. 
Wyandotte  Co.  :•.   Evans,  272. 

cxxi 


TABLE   OF   CASES   CITED. 


[licftrences  arc  to  Sections.] 


Wynchimer  t:    People,   1. 
Wyiikoop  V.   Burner,   435. 
Wynkoop  f.   Cowing,   233,   234. 
\\yilic    :.    ThurUlon,    412. 


Xenos   f.    Wickliam,    C7G. 


Yalt   f.    Dedercr,    558. 
Yancey   f.    Mauck,   217. 
Yancey  f.  Radford,  512. 
Yancey   f.    Smith,    11^. 
\anues    ..    Wright,    448. 
Yarborough  r.    Newell,   228.    247. 
S'arnold  f.   Moorchousc,   140. 
Y.irwood   -,-.  Jo!\nson,    IS". 
Yates  I',   .\stcn,   230. 
Yates  ;■.  Crompton,   407,  410. 
Yates    f.    Kinney,    160. 
Yates   r.    McKiblxrn,    123. 
\ates   :•.    Milwaukee,    598. 
Yates   V.    Shaw,    596. 
Yayan   f.    Shriner,   217. 
Yc.nlcs  V.  Gill.   642. 
Yc.iton  r.    Roberts,   296,   388. 
Wrlvcrton  f.    Steele.    493. 
Ycrby    V.    Yerby,    647. 
Yingling    »■.    Redwine,    243. 
Yock  V.   Mann,   509. 
^'ocu^l   -.    Lovell,    126. 
Yocum  V.   Porter,   629. 
Yocum    f.    Siler,    40,   211. 
York   V.    Stone,    177,    187. 
Yost    I'.    Graham,    1. 
Youle  f.   Richards.  234. 
Young  r.    Boardman,   118,    119. 
Young   '•.   Collett,   153. 
Young  f.    De    Bruhl,   179. 

cxxii 


Young  V.   Droz,   512. 
N  oung  5 .    Ellis,    17,  408. 
Young  f.  Gay,   14S,  208. 
Younge  f.   Giibeau,   STti. 
Young  i:   Grieb,   492. 
Younge  v.  Guilbeau,  570,  578. 
Young  V.  Miller,  250,  251. 
Young   J'.    Morehead,    86. 
Young  V.  Oniohundro,  209. 
Young  V.    Ringo,   565. 
Young  f.   Robinson,  642. 
Young  V.    Sheldon,   74. 
Young    J'.    Tarbell,    87. 
^'oung   t'.    Wood,    218. 
Young   -•.    Young,   202,    373. 
Youngblood   f.    Vastine,    582. 
Youngman    i:    Elmira,    282. 
Youngman   v.    R.    R.    Co.;    243. 


Zabriskie    v.    Bandistel,    CGO. 

Zabriskie's    Exrs.    ?■.    XV'etmore,    380. 

Zapp   V.    Strohmeyer,    122. 

Zaver   v.    Lyons,   373. 

Zcigler   !■.    Grim,    195. 

Zciswiss   I'.   James,    638. 

Zeller   v.    Eckert,    158,    247. 

Zentmeyer   r.    Mittower,    217. 

Zieschang   v.    Helmke,    217. 

Zimnier   v.    Sennott,    373. 

Zimmerman   v.   Anders,   638, 

Zincleo    v.    Franklinite,    4. 

Zink    f.    Bohn,    134. 

Zoll    i:    Carnahan,    253. 

Zollinger    z:    Dunaway,    123. 

Zonch   V.    Parsons,    558. 

Zuver   v.   Lyons,   233. 

Zweible  v.    Myers,   559. 

Zwerneau  v.  Von  Rosenburg,  121. 


THE   LAW 


OF 


REAL    PROPERTY. 


PART   I. 

CHAPTER  I. 

REAL  PROPERTY. 

Section"    1.  What  is  real  properly. 

2.  What  is  land. 

3.  Elements  composing. 

4.  Double  ownership  in  land. 

5.  Incidents  of  dual  ownership. 

6.  Lands,  tenements  and  hereditaments. 

7.  Emblements. 

8.  Trees. 

§  1.  What  is  real  property. —  In  the  English  common  law, 
property  is  divided  into  two  classes,  real  and  personal. 
Real  property  is  such  as  has  the  characteristic  of  immobility 
or  permanency  of  location,  as  lands  and  rights  issuing  out  of 
land.*     Personal  property  is  every  species  of  property  which 

1  The  simple,  yet  expressive,  definition  of  the  text  is  best  appreciated, 
after  comparison  with  other  definitions  of  different  authorities  upon  the 
subject.  (Editor.)  While  technically  true  that  real  property,  oi*  real 
estate,  as  applied  in  the  law,  is  usually  limited,  in  the  legal  acceptation 
of  the  term,  to  estates  in  fee,  or  for  life  in  land  only,  a  mere  description 
of  the  estate  which  may  exist  therein  is  not  sufficiently  broad  to  define 
the  term  "real  property."     See  3  Kent's  Com.  (12  ed.)  401,  p.  529. 

1 


§    2  REAL   PROPERTY.  [PART   1, 

does  not  have  the  above  mentioned  characteristic.  Some 
proprietary  right  or  dominion,  sufficient  to  predicate  owner- 
ship, or  property  thereof,  is  just  as  essential  as  a  thing  of 
fixed  or  permanent  situs,  to  constitute  real  property,  and 
while  undiscovered  and  unclaimed  territory  would  come 
within  the  definition  of  the  term  land,  it  could  not  be  con- 
sidered real  property,  within  the  legal  signification  of  the 
term,  for  it  would  lack  the  attribute  of  ownership,  or  an  es- 
tate therein,  until  some  right  attached  thereto.''  Hence  it 
is  that  real  estate,  is  the  ownership  of  land,  or  property  of  a 
fixed,  permanent  situs,  as  distinguished  from  movable  prop- 
erty, which  accompanies  the  person  of  the  owner.^  The  term 
**  real  estate,"  when  used  in  its  strict  technical  sense,  includes 
all  estates  for  life  or  for  a  greater  period,  but  does  not  in- 
clude leasehold  and  other  inferior  estates.* 

§  2.  What  is  land. —  All  real  property  or  things  real,  are 
said  to  be  comprehended  under  the  terms,  lands,  tenements, 
and  hereditaments.  Land  is  the  soil  of  the  earth,  and  in- 
cludes everything  erected  upon  its  surface,  or  which  is  buried 
beneath  it.  It  extends  in  theory  indefinitely  upward,  xisque 
ad  calum,  and  downward,  usque  ad  orcum.     Under  the  term 

2  A  meteorite,  though  not  buried  in  the  soil,  constitutes  real  estate,  in 
the  absence  of  proof  of  severance,  and  belongs  to  the  owner  of  the  soil, 
according  to  the  decision  of  the  Oregon  Supreme  Court,  in  Oregon  Iron 
Co.  r.  Hughes,  81  Pac.  Rep.  572.  For  development  of  the  English  law 
and  earliest  use  of  the  term  "  ownership,"  see  2  Pollock  &  Maitland, 
Hist.  Eng.  Law,  151.  "  The  right  of  indefinite  user  is  an  essential 
quality  or  attribute  of  absolute  property,  without  which  absolute  prop- 
erty can  have  no  legal  existence.  '  Use  is  the  real  side  of  property.'  " 
Eaton  V.  Boston,  etc.,  R.  Co.,  51  N.  H.  504;  Finch's  Sel.  Cas.  Law 
Prop,  in  Land,  1;  Wynehamer  v.  People,  13  N.  Y.  378;  1  Bl.  Com.  138; 
2  Austin's  Jur.    (3  ed.)   217. 

'  The  legal  situs  of  personal  property  follows  the  domicile  of  the 
owner  and  the  actual  situs  is  only  effected  by  transfers  operating^ 
through  the  law  itself.  Yost  v.  Graham,  50  W.  Va.  199 ;  40  S.  E.  Rep. 
361. 

4  Co.  Litt.  19,  20;  Westervelt  v.  People,  20  Wend.  416;  Murry  v.  Hal- 
lett,  2  Cowen,  497;  3  Kent's  Com.  (12  ed.)  401,  p.  529. 


CH.    I.]  REAL  PROPERTY,  §    2 

land,  therefore,  are  included  the  buildings,  made  so  under 
the  doctrine  of  accession,  and  the  trees  and  other  things 
growing  upon  the  land,  under  the  doctrine  of  acquisition  by 
production,  as  well  as  the  minerals  which  may  be  embedded 
in  the  earth.'*  If  water  runs  over  the  land,  the  ownership 
of  the  land  gives  a  right  to  the  use  of  the  water,  but  does  not 
create  therein  a  permanent  right  of  property.  The  property 
consists  in  the  use.®  A  grant  of  lands,  therefore,  without 
any  qualification,  conveys  not  only  the  soil  but  everj'^thing 
else  which  is  attached  to  it,  or  which  constitutes  a  part  of  it, 
the  buildings,  mines,  trees,  growing  crops,  etc.  Even  trees 
which  have  been  cut,  and  are  lying  upon  the  land,  have  been 
said  to  pass  with  the  land.^     On  the  other  hand,  it  has  been 


8  2  Bla.  Com.  17-19;  Co.  Lit.  4g;  1  Washburn  on  Real  Prop.  3,  4; 
Williams  on  Real  Prop.  14. 

« But  whether  ice,  formed  upon  a  stream  or  pond,  belongs  to  the 
owner  of  the  soil,  is  a  doubtful  question.  If  it  is  an  artificial  stream, 
it  seems  settled  that  the  owner  of  the  bed  has  a  right  of  property  in  the 
ice.  Mill  River  Co.  r.  Smith,  34  Conn.  462;  Paine  v.  Woods,  108  Mass. 
173.  And  the  same  position  has  been  sustained  in  Indiana  in  respect  to 
a  natural  stream.  State  v.  Pottmyer,  33  Ind.  '402.  In  Massachusetts, 
ice  formed  on  a  natural  stream  seems  to  be  common  property  to  all  who 
have  the  right  to  go  upon  the  stream.  Paine  v.  Wood,  supra;  Inhab. 
of  W.  Roxbury  r.  Stoddard,  7  Allen,  158.  In  many  of  the  Western 
states,  the  right  to  running  water,  by  legislation,  is  declared  a  right  in 
real  property.  This  is  true  in  Montana.  Barkley  V.  Tieleke,  2  Mont. 
59;  Bumham  v.  Freeman,  11  Colo.  601.  See  Colo.  Act  1893,  p.  298. 
And  for  discussion  of  the  right  to  running  water  on  the  public  domain 
and  a  history  of  the  Federal  legislation  on  the  subject,  see  Titcomb  v. 
Kirk,  57  Cal.  288.  The  right  of  a  riparian  proprietor  of  a  non-naviga- 
ble stream  to  the  undiminished  flow  of  the  water,  is  held,  in  New  York, 
to  be  inseparably  annexed  to  the  soil  and  a  part  of  the  land  itself,  and 
not  a  mere  easement  or  appurtenance.  Pine  v.  New  York,  103  Fed. 
Rep.  337 ;  Smith  r.  Rochester,  92  N.  Y.  463. 

7  Brackett  v.  Goddard,  54  Me.  oi3;  Ishani  r.  Morgan,  9  Conn.  374; 
Hilton  V.  Oilman,  17  Me.  263;  Baker  v.  Jordan,  3  Ohio,  438.  But  if 
timber  on  land  is  cut  by  a  licensee  or  lessee,  a  subsequent  conveyance 
of  the  land  would  not  effect  the  title  of  the  licensee  or  lessee  in  the 
timber,  for  a  severance  of  the  timber  from  the  freehold  would  so  far 
change  its  character  to  personal  property  as  to  prevent  it  from  passing 

3 


§    2  REAL    PROPERTY.  [PART    I. 

held  that  a  grant  of  a  mill  included  the  contiguous  land 
which  had  been  used  with  the  mill,  and  which  was  necessary 
to  such  use;  and  the  grant  of  a  house  passed  the  land  upon 
which  it  is  built.*  But  the  land  must  be  both  contiguous 
and  necessary  to  the  enjoyment  of  the  building  which  has 
been  specifically  conveyed,  in  order  that  it  too  might  pass 
under  the  grant.  Thus  the  grant  of  a  hotel  "and  the  land 
adjoining  it,"  was  held  not  to  include  an  island  in  the  rear 
of  the  hotel,  but  which  was  separated  from  it  by  a  river  large 
enough  for  a  mill  stream.®  Manure  made  upon  a  farm  is 
generally  considered  in  this  country  to  be  a  part  of  the  realty 
and  to  pass  with  the  grant  of  the  land.^°  So,  also,  has  the 
rolling  stock  of  a  railroad  been  considered  a  part  of  the 
realty,  and  to  pass  with  a  conveyance  of  the  road  without  any 
special  description  of  the  same.^^ 

in  a  conveyance  of  the  realty.  Price  v.  Madison  (S.  D.),  95  N.  W. 
Rep.  933. 

8  Gear  r.  Burnham,  37  Conn.  229;  Esty  V.  Currier,  98  Mass.  501; 
Roe  r.  Strong,  149  N.  Y.  316  (23  N.  E.  743);  Marmouth  V.  Plimpton, 
77  Me.  556. 

«  Miller  r.  Mann,  55  Vt.  475. 

10  Goodrich  v.  Jones,  2  Hill,  142;  Parsons  v.  Camp,  11  Conn.  525; 
Perry  v.  Carr,  44  N.  H.  122;  Daniels  v.  Pond,  31  Pick.  367.  Manure 
from  fodder,  fed  by  a  tenant,  and  not  raised  on  the  leased  land,  belongs 
to  the  tenant  and  not  the  owner  of  the  land.  Pickering  V.  Moore,  67 
N.  H.  533;  32  Atl.  Rep.  828;  31  L.  R.  A.  698. 

11  Minnesota  v.  St.  Paul  R.  R.,  2  Wall.  644;  Farmers'  Loan,  etc.,  Co. 
r.  Hendrickson,  25  Barb.  493;  Palmer  v.  Forbes,  23  111.  300;  State  V. 
Northern  R.  R.  Co.,  18  Md.  193.  While  it  is  no  doubt  true  that  rolling 
stock  of  a  railroad  may  be  treated  as  real  estate,  by  legislative  act,  for 
purposes  of  taxation  (Louisville  &  N.  R.  Co.  v.  State,  25  Ind.  177; 
Denver  &  R.  G.  Co.  v.  Church,  17  Colo.  1 ;  28  Pac.  Rep.  468 ;  48  Am.  & 
Eng.  R.  Cas.  627;  Shawnee  Co.  Com.  v.  Topeka  Equip.  Co.,  26  Kan. 
363;  Wilmington  &  W.  R.  Co.  v.  Alsbrook,  110  N.  C.  137,  437;  14  S.  E. 
Rep.  652,  1007 ) ,  such  property  is  not  generally  regarded  as  "  fixture  " 
between  mortgagor  and  mortgagee  (Speiden  v.  Parker,  46  N.  J.  Eq. 
292,  19  Atl.  Rep.  21),  but  is  a  chattel,  and  remains  so,  after  being 
placed  on  the  track,  for  operation  (Williamson  v.  N.  J.  Southern  R. 
Co.,  29  N.  J.  Eq.  311;  15  Amer.  Ry.  Rep.  572;  Chicago  &  N.  W.  R.  Co. 
r.  Ft.  Howard,  21  Wis.  44;  Neilson  v.  Iowa  Eastern  R.  Co.,  51  Iowa, 

4 


CH.    I.]  REAL  PROPERTY.  §    '^ 

§  3.  Elements  composing. —  The  term  ' '  land, ' '  in  its  broad- 
est sense,  includes  not  only  all  substances  comprising  part  of 
the  solid  body  of  the  earth,  but  all  fluids  and  gases,  metallic 
and  non-metallic  substances,  located  beneath  the  surface  of 
the  soil,  as  well  as  the  soil  and  subsoil  upon  and  immediately 
beneath  the  surface  of  the  earth,^^  and  the  erections  on  the 
surface,  of  a  permanent  and  fixed  character.  The  solid, 
crystalline  bodies,  forming  part  of  the  substance  of  the 
earth  and  the  liquids  and  gases,  which  do  not  possesss  a 
definite  geometric  form,  that  are  put  to  commercial  uses,  be- 
cause of  their  value  to  mankind,  are  generally  denominated 
"minerals,"  to  distinguish  them  from  the  soil  and  subsoil 
and  other  elements  of  the  term  "land,"  possessing  no  pecul- 
iar value."  As  long  as  such  substances  retain  their  natural 
place  in  the  earth,  they  are  included  within  the  legal  mean- 
ing of  the  term  '  *  land ' '  and  are  a  part  of  the  realty  and  pass; 
by  a  grant  of  the  land,  as  such;^*  but  when  once  such  sub- 
stances, are  severed  from  the  soil  in  which  they  are  naturally 
found,  they  lose  their  character  as  real  estate  and  are  con- 
sidered personal  property." 

184,  714) .  And  the  better  opinion  is  that  the  rolling  stock  of  a  railroad 
is  personalty.  (Randall  v.  Elwell,  52  N.  Y.  52,  s.  c.  11  Am.  Rep.  747 1 
Hoyle  r.  Plattsburg,  etc.,  R.  R.,  54  N.  Y.  314,  s.  c.  13  Am.  Rep.  595.)* 

12 "  Land  includes  whatever  is  parcel  of  the  terrestrial  globe,  or  is 
permanently  affi.xed  to  such  parcel."  Tiffany,  Real  Prop.  Sec.  4,  p.  6; 
Co.  Litt.  4a.  "  The  term  embraces  the  bare  granite  of  the  loftiest  moun- 
tains, as  well  as  the  deepest  hidden  diamonds  and  metallic  and  non- 
metallic  ores."  Midland  R.  Co.  v.  Checkley,  L.  R.  4  Eq.  19;  Earl  of 
Ross  V.  Wainman,  14  M.  &.  W.  859;  2  Exch.  800;  15  L.  J.  Exch.  67; 
McLaughlin  V.  Powell,  50  Cal.  64;  Dark  v.  Johnson,  55  Pa.  St,  164. 

13  Soil  and  sub-soil  are  distinguished  from  "  minerals,"  in  Eardley  t\. 
Granville,  3  Ch.  D.  826.  See,  also,  Midland  R.  Co.  V.  Haunchwood  Co.^ 
20  Ch.  D.  555;  MacSwinney,  on  Mines,  p.  18. 

1*  Land  fncludes  the  term  mineral.  Shep.  Touch,  90;  Newcolm  t\ 
Coulson,  5  Ch.  D.  142;  McDonald  r.  McKinty,  10  Ir.  L.  R.  514;  Loose- 
moore  v.  Tiverton  R.  Co.,  22  Ch.  D.  43. 

isGrubb  r.  Bayard,  2  Wall  Jr.  81;  Green  v.  Ashland  Iron  Co.,  62 
Pa,  St,  97;  Forbes  v.  Gracey  Con,  Vir.  Min.  Co.,  94  U.  S.  762;  24  L. 
Ed,  313;  Burns  v.  Clark,  133  Cal.  634. 

5 


§    4  REAL    PROPERTY.  [PAKT    1. 

§  4.  Double  ownership  in  lands. — Technically,  the  law 
knows  no  double  ownership  in  lands,  or  in  any  other  kind  of 
property.  But,  since  land  is  made  up  of  composite  elements, 
the  soil  itself,  the  trees,  and  other  products  and  annexations 
upon  it,  and  the  minerals  and  other  deposits  under  it,  it 
may  be  divided  up  into  these  elements,  so  that  one  man  may 
own  the  trees  and  erections,  another  the  surface,  and  a  third 
a  mine  beneath.  A  sale  of  the  trees,  if  it  satisfies  the  re- 
quirements of  the  Statute  of  Frauds,  by  being  in  writing, 
giyes  to  the  vendee  a  right  of  property  in  the  standing  trees, 
with  the  right  to  enter  upon  the  land  for  the  purpose  of 
cutting  and  transporting  them.^^  But  if  the  contract  be 
executory,  and  not  in  the  nature  of  a  deed,  then  no  title  to 
the  standing  trees  passes  to  the  vendee.  He  simply  has  a 
license  to  come  upon  the  land  and  cut  them."  So  there  may 
be  a  separate  right  of  property  in  a  house,^®  or  a  room,  or  in 
a  mine.'' 

i«Carrington  v.  Roots,  2  M.  &  W.  248;  Warren  v.  Leiand,  2  Barb. 
613;  Pattison's  Appeal,  61  Pa.  297;  Whipple  v.  Foot,  2  Johns.  423; 
Green  r.  Armstrong;  1  Denio,  550;  McGregor  v.  Brown,  10  N.  Y.  117; 
Drake  v.  Wells,  11  Allen  144;  Clap  v.  Diaper,  4  Mass.  266;  Kingsley  v. 
Holbrook,  45  N.  H.  319;  Gardner  Mfg.  Co.  v.  Heald,  5  Greenl.  381; 
Drake  r.  Wells,  11  Allen  144;  Knotts  v.  Hydrick,  12  Rich  314;  West- 
cott  V.  Delano,  20  Wis.  516;  Rich  v.  Zeilsdorf,  22  Wis.  544;  see  post, 
Sec.  563. 

"Drake  V.  Wells,  11  Allen,  142;  Douglass  V.  Shumway,  13  Gray,  502; 
Clark  r.  Way,  11  Rich.  621;  Nettleton  v.  Sikes,  8  Mete.  35.  See  post, 
Sec.  563. 

18  Harris  v.  Ryding,  5  M.  &  W.  60;  Stoughton  v.  Lee,  1  Taunt.  402; 
Stockwell  V.  Hunter,  11  Mete.  448;  Adams  v.  Briggs,  7  Cush.  361;  Can- 
field  r.  Ford,  28  Barb.  336.  In  the  recent  case  of  Madison  V.  Madison 
(206  111.  5.34,  69  N.  E.  Rep.  625),  an  interesting  question  over  the  dif- 
ferent elements  and  ownership  in  lands  arose.  The  owner  of  a  two- 
story  building  made  a  deed,  without  limitation,  to  the  owner  of  the 
second  story  and  the  court  held  the  grantee  acquired  a  tangible  interest 
in  real  estate  thereby. 

i»Gloninger  r.  Franklin  Coal  Co.,  55  Pa.  St.  9;  Proprietors  v.  Lowell, 

1  Mete.  538:  Otis  v.  Smith,  9  Pick.  293;  Shades  v.  McCormick,  4  Iowa, 

375;  Cheeseborough  r.  Green.  10  Conn.  318;  Green  v.  Putnam,  8  Cush. 

21;  Caldwell  v.  Fulton,  31  Pa.  475;  Clement  v.  Youngmann,  40  Pa.  St. 

6 


CH.    I.]  REAL  PROPERTY.  §    6 

§  5.  Incidents  of  dual  ownership. —  Formerly,  when  one 
owned  the  surface  of  the  earth,  he  was  held,  in  law,  to  own 
an  estate  which  extended  to  the  center  of  the  earth,  but  now 
the  surface  of  the  land  may  be  separated,  by  a  distinct  title, 
from  the  different  strata  underneath  it  and  there  may  be  as 
many  owners  as  there  are  strata.-"  Not  only  may  there  be 
separate  titles  to  the  elements  that  compose  the  soil,  but 
there  may  be  distinct  ownership  in  the  different  descriptions 
of  minerals,  or  in  different  deposits  or  strata  of  the  same 
kind  of  mineral.-^  For  instance,  one  person  may  own  the 
iron  ore  and  another  the  lead,  contained  in  the  same  tract 
of  land,  and  a  third  party  can  own  one  section  or  stratum  of 
coal  and  a  fourth  hold  the  title  to  another  distinct  seam  of 
the  same  mineral,  while  neither  may  possess  the  title  to  the 
surface  of  the  land.^^ 


§  6.  "  Lands,  tenements,  and  hereditaments."  —  What  is  in- 
cluded under  the  term  lands,  has  been  discussed  in  the 
preceding  pages.  Tenements  are  those  things  which  can  be 
HOLDEN.  It  is  a  word  derived  from  the  feudal  system,  and 
signifies  anything  which  is  held  in  tenure.-^     Hereditament 

344:  Zinc  Co.  V.  Franklinite  Co.,  13  N.  J.  322;  Wardell  r.  Watson,  03 
Mo.  107;  Coal  Co.  r.  Mellon.  152  Pa.  St.  286;  Lillibiidge  r.  Coal  Co., 
143  Pa.  St.  293;  Kirk  r.  Mattier,  140  Mo.  23. 

2«  Lillibridge  v.  Coal  Co.,  143  Pa.  St.  293;  Coal  Co.  v.  Mellon,  152 
Pa.  St.  286;  Kirk  v.  Mattier,  140  Mo.  23. 

21  Caldwell  r.  Copeland,  37  Pa.  St.  1;  Kier  v.  Peterson,  41  Pa.  St.  5; 
Barden  v.  Northern  Pac.  Co.,  154  U.  S.  288;  Williams  v.  Gibson,  84 
Ala.  228;  Higgins  v.  Cal.  Pet.  Co.,  109  Cal.  304;  Silva  i\  Rankin,  80 
Ga.  79;  'Wilms  v.  Jess,  94  111.  464;  Rogers  t*.  Cox,  96  Ind.  157;  Mickle 
r.  Douglas,  75  Iowa  78;  Hartford  Co.  v.  Cambria  Co.,  93  Mich.  93. 

22  Butte  Mining  Co.  v.  Sloane,  16  Mont.  97;  Hawkins  r.  Pe])jier,  117 
N.  C.  407;  Burgner  r.  Humphrey,  41  Ohio  St.  340;  Pringle  v.  Coal  Co., 
172  Pa.  St.  438;  Lee  r.  Baumgardner,  86  Va.  315;  Blanchard  &  Weeks 
I>d.  Cas.,  p.  33.  There  may  be  separate  distinct  estates  in  difTercnt 
persons  in  the  surface  of  land  and  oil  and  other  minerals  in  it.  Peter- 
son r.  Hall  (W.  Va.),  50  S.  E.  Rep.  603. 

23 Tenement  is  said  to  be  a  more  comprehensive  term  than  land,  which 

7 


§   7  REAL    PROPERTY.  [PAKT    1. 

is  any  property  which  is  heritable.  Hereditaments  are  of 
two  kinds,  corporeal,  that  is,  everything  of  a  substantial 
nature,  such  as  lands,  houses,  mines,  etc. ;  incorporeal,  or 
those  species  of  real  property,  which  are  not  tangible,  and 
are  more  properly  rights  in,  than  rights  to,  or  of,  real  prop- 
erty.-* The  Roman  jura  in  re  aliena,  comprise  to  some  ex- 
tent this  class  of  rights  of  property. 

§  7.  Emblements. —  If  growing  crops  are  planted  by  the 
owner  of  the  soil,  they  form  a  part  of  the  realty.  But  if 
they  are  planted  by  a  tenant,  holding  under  the  owner,  then 
they  are  personalty  as  regards  the  owner,  at  least  during 
the  continuance  of  the  tenancy,  but  as  a  rule,  realty  in  re- 
spect to  all  others.  Whether  he  has  a  right  to  the  growing 
crops,  after  the  termination  of  his  lease,  depends  upon  the 
certainty  or  uncertainty  of  its  duration.  This  right  is  called 
emblements.  When  the  termination  of  the  estate  depends 
upon  an  uncertainty,  the  tenant  or  his  personal  representa- 
tives will  have  emblements,  coupled  with  the  right  of  entry 
for  the  purpose  of  working  the  crops,  until  they  are  ripe 
for  harvesting.-'  This  subject  will  be  specially  noticed  in 
discussing  the  characteristics  of  the  different  estates. 

it  includes,  as  well  as  incorporeal  property.  2  Pollock  &  Maitland  Hist. 
Eng.  Law  148 ;  Co.  Litt.  18a ;  2  Bl.  Com.  17. 

24  While  "  hereditament "  is  broader  than  tenement,  as  including 
whatever,  in  the  absence  of  testamentary  disposition,  may  descend  to 
the  heir.     Tiffany,  Real  Prop.  Sec.  4,  p.-  7;  2  Bl.  Com.  17;  Co.  Litt.  Ca. 

25Holbrook  r.  Green  (1903),  98  Me.  171,  56  Atl.  Rep.  659.  A  mort- 
gagee of  land  cannot  recover  from  the  mortgagor  for  crops  grown  ana 
actually  severed  from  the  land  before  the  entry  by  the  mortgagee. 
Hinton  r.  Walston,  115  N.  C.  7;  20  S.  E.  Rep.  164.  A  crop  planted  by  a 
tenant  for  years,  after  a  decree  foreclosing  a  mortgage  on  the  land, 
belongs  to  the  tenant,  if  he  was  permitted  to  retain  possession  until  the 
maturity  of  the  crop.  Munday  r.  O'Neal  (Neb.),  63  N.  W.  Rep.  Z^. 
But  a  purchaser  under  a  mortgage  sale,  becomes  the  owner  of  all  crops 
unsevered  at  the  time  of  the  sale,  although  not  as  to  crops  severed  be- 
fore the  sale.  Watson  v.  Menter,  59  Mo.  App.  387.  Crops  raised  on 
leased  premises,  after  severance,  although  not  harvested,  become  per- 
sonalty and  do  not  pass  to  the  incoming  tenant  or  revert  to  the  lana- 
8 


CH.   I.]  REAL  PROPERTY,  §    8 

§  8.  Trees. —  As  we  have  seen  above,  trees  constitute  a  part 
of  the  realty,  being  a  product  of  the  soil  which  is  not  planted 
annually.  If  the  trunk  of  a  tree  is  wholly  within  the 
boundaries  of  one  man's  land,  the  entire  tree  belongs  to  him, 
even  though  the  branches  and  roots  may  find  their  way  into 
the  land  of  the  adjoining  owner.  The  adjoining  owner  need 
not  endure  this  trespass,  but  may  cut  off  such  projecting 
roots  and  branches.  If  the  tree  stands  upon  the  boundary 
line,  so  that  a  part  of  the  tree  is  on  either  side,  the  tree 
is  then  the  joint  property  of  both,  and  neither  can  remove 
or  injure  it  without  the  consent  of  the  other. ^®  And  while 
there  can  be  a  separate  property  in  growing  trees,  the  same 
as  in  minerals  beneath  the  surface,-^  so  long  as  the  title  to 
the  trees  is  in  the  surface  owner,  they  form  a  part  and  parcel 
of  the  realty  and  the  mere  fact  that  a  contract  of  sale  has 
been  executed  for  the  growing  timber  on  a  tract  of  land, 
would  not  pass  the  title  to  the  trees,  but  they  would  retain 
the  character  of  land,  to  such  an  extent  as  to  be  taxable  only 
as  a  portion  of  the  realty  and  not  as  a  separate  entity,  until 
an  actual  conveyance  had  been  made.^* 

lord,  as  a  part  of  the  realty.  Meffert  v.  Dyer  (Mo.  App.  1904),  81 
S.  W.  Rep.  643. 

26  Masters  v.  Pollie,  2  Roll.  Rep.  141;  Hutchings  v.  King,  1  Wall.  59; 
Holder  t;.  Coates,  1  Mees.  &  W.  112;  Skinner  v.  Wilder,  38  Vt.  11.5; 
Dubois  V.  Beaver,  25  N.  Y.  123;  Hoffman  v.  Armstrong,  48  N.  Y.  201; 
3  Kent's  Com.  437.  It  was  recently  held,  in  Iowa,  that  trees  on  the 
boundary  line  between  two  adjoining  tracts  were  the  common  property 
of  both  landowners,  but  that  either  could  cut  the  branches  at  the  line 
and  dig  out  the  roots  penetrating  his  land.  Harndon  v.  Stultz  (1904), 
100  N.  W.  Rep.  329. 

2T  Kirk  r.  Mattier,  140  Mo.  23. 

28  Williams  r.  Triche,  107  La.  92,  31  So.  Rep.  926.  Where  growing 
trees  or  timber  is  taken  under  eminent  domain,  or  condemnation  pro- 
ceedings, the  damages  to  which  the  one  entitled  to  the  timber,  who 
purchased  it  from  the  owner,  is  the  value  of  the  trees  on  the  stump, 
with  interest  on  the  same,  from  the  time  of  the  appropriation.  Turner 
V.  State,  73  N.  Y.  S.  372,  67  App.  Div.  393. 

9 


CHAPTER  II. 

FIXTURES. 

Section     9.  General  doctrine  of. 

10.  Nature  and  definition  of. 

11.  Tests  for  determining  what  are. 

12.  Identity  and  subsequent  use  of  chattel. 

1.3.  Between  what  parties  the  question  may  arise. 

14.  Constructive  annexation. 

15.  Temporary  annexation. 

16.  Questions  of,  between  landlord  and  tenant. 

17.  Fixtures  erected  by  licensee. 

18.  Time  for  removal  of  fixtures. 

§  9.  General  doctrine  of. —  The  general  rule  of  law  is  that  a 
permanent  annexation  to  the  soil  of  a  thing,  in  itself  per- 
sonal, makes  it  a  part  of  the'  realty.  And  the  rule  applies, 
in  some  cases,  even  where  the  thing  annexed  is  the  per- 
sonal property  of  another.  Thus,  if  a  stranger  erects  a 
building  upon  the  land  of  another,  having  no  estate  therein, 
the  building  becomes  the  property  of  the  owner  of  the  soil. 
And  this  happens  at  common  law,  notwithstanding  the 
stranger  acts  under  a  mistaken  claim  of  title.^  But  if  such 
erection  is  in  pursuance  of  a  license  granted  by  the  owner 
of  the  soil,  then  the  annexation  will  not  make  the  building 
or  other  structure  a  part  of  the  realty.  A  conveyance  of 
the  land  will  not  transfer  the  structure  with  it,  but  will  oper- 
ate as  a  revocation  of  the  license,  and  compel  the  owner, 
within   a   reasonable  time  after  such  revocation,   to  remove 

1  Osgood  r.  Howard,  6  Greenl.  452;  Aldrich  V.  Parsons,  6  N.  Y.  555; 
Dime   V.  Dame,  38  N.  H.  429;   Ogden  v.  Stock,  .34  111.  522;  Rogers  V. 
Woodbury,  15  Pick,  156;  Webster  v.  Potter,  105  Mass.  416. 
10 


CH.    II.]  FIXTURES.  §10 

the  structure  or  lose  his  right  of  property  therein.^  But 
where  the  person  erecting  the  structure  is  the  owner  of  the 
soil,  or  has  an  interest  in  the  land,  then  it  is  more  diffi- 
cult to  determine  from  the  various  circumstances  under 
which  the  question  may  arise,  when  the  annexation  is  suffi- 
ciently permanent  in  its  character,  in  order  to  merge  the 
thing  attached  into  the  realty.  This  subject  is  known  as  the 
law  of  fixtures. 

§  10.  Nature  and  definition  of. —  Fixtures  are  those  things, 
which,  personal  in  their  nature,  become  realty  by  reason  of 
their  annexation  to  the  soil,  such  annexation  being  made 
by  some  one  having  an  interest  in  the  soil.^     They  are  re- 

2  Tapley  v.  Smith,  18  Me.  12 ;  Russell  v.  Richards,  10  Me.  429 ;  Keyser 
V.  School  District,  35  N.  H.  480;  Antoni  v.  Belknap,  102  Mass.  200; 
Kutter  V.  Smith,  2  Wall.  491;  O'Brien  V.  Kustener,  27  Mich.  292;  Htim 
V.  Kendall,  111  Mass.  298;  Goodman  v.  Hannibal  &  S4.  Joseph  R.  R.. 
45  Mo.  33 ;  Harrisburg  Electric  Light  Co.  v.  Goodman,  129  Pa.  St.  206 ; 
Curtis  V.  Leasia,  44  N.  W.  Rep.  500;  Keating  Implement  Co.  &  Machine 
Co.  V.  Power  Co.,  74  Tex.  605 ;  Handforth  v.  Jackson,  150  Mass.  149,  22 
N.  E.  Rep.  634;  Pope  v.  Skinkle,  45  N.  J.  L.  39;  Rowland  v.  Anderson, 
33  Kan.  264;  Ingalls  v.  St.  Paul,  etc.,  R.  R.  Co.,  40  N.  W.  Rep.  524,  39 
Minn.  479.  A  leather  belt,  used  to  transmit  power  from  a  stationary 
engine  to  a  main  shaft,  for  the  operation  of  the  machinery  of  a  marble 
mill,  is  held,  in  Vermont,  to  be  a  part  of  the  realty  and  is  not  subject 
to  attachment  and  removal  as  personal  property.  Friedley  v.  Giddings, 
119  Fed.  Rep.  438,  128  Fed.  Rep.  355,  63  C.  C.  A.  85,  65  L.  R.  A.  327. 

3  Mr.  Ewell  does  not  limit  the  term  to  articles  of  a  chattel  nature 
only,  but  defines  a  fixture  as  "  any  annexation  or  addition  which  has 
been  affixed  to,  or  planted  in,  the  soil  of  the  land."  Ewell,  Fixt.  1 ; 
Climie  v.  Wood,  L.  R.  3  Exch.  257,  37  L.  J.  (N.  S.)  Exch.  158;  L.  R. 
4  Exch.  328.  Unless  the  article  annexed  entirely  loses  its  identity  in 
the  manner  of  the  annexation  (Woodruff  v.  Adams,  37  Conn.  233;  Lan- 
sing Engine  Works  f.  Walker,  91  Mich.  409),  the  chattel  must  usually 
be  annexed  by  the  owner  of  the  land,  or  with  his  consent.  General 
Elec.  Co.  V.  Equipment  Co.,  57  N.  J.  Eq.  460;  Gill  v.  De  Armand,  90 
Mich.  425.  It  is  held,  in  Canada,  that  for  personal  property  perma- 
nently placed  on  land  and  incorporated  therewith,  to  become  a  fixture, 
the  ownership  both  of  the  land  and  personal  property,  must  be  vested  in 
the  same  person.  Leonard  V.  Williard,  Rap.  Jud.  Que.  23  C.  S.  482. 
This  is  also  the  rule,  in  Louisiana.  Hibernia  Nat.  Bank  v.  Sarah 
Planting  &  Refining  Co.,  107  La.  650,  31  So.  Rep.  1031. 

11 


§    11  FIXTURES.  [part   I, 

movable  or  not,  according  to  the  circumstances  of  each  case. 
In  the  first  place,  the  attachment  must  be  of  a  permanent 
and  legal  character.  If  there  is  no  attachment  or  annexa- 
tion, the  thing  remains  personal  property.  But  the  annexa- 
tion may  be  actual  or  constructive.  Actual  annexation  is 
where  the  thing  is  annexed  by  actual  attachment  to  the  soil, 
as  a  house  built  upon  a  brick  foundation,  or  fences  with 
posts  embedded  in  the  soil.  Constructive  annexation  is 
where  the  thing  is  fitted  for  use  in  connection  with  the 
premises,  and  is  more  or  less  necessary  to  their  enjoyment, 
but  it  is  not  firmly  attached.  Such,  for  example,  are  keys, 
movable  window  blinds,  doors,  etc.  In  the  second  place,  since 
the  thing  assumes  the  character  of  a  fixture,  because  of  its 
annexation  to  the  soil,  it  must  follow,  that  if  there  can  be  a 
legal  severance  it  will  re-assume  the  character  of  personal 
property  and  cease  to  be  a  fixture.  The  right  to  remove 
fixtures  depends  upon  the  intention  of  the  parties  as  mani- 
fested by  the  character  of  the  annexation  and  the  effect  of 
severance  upon  the  land,  and  the  relation  of  the  person 
making  the  removal  to  the  fixture  and  to  the  land. 

§  11.  Tests  for  determining  what  are. —  In  determining 
whether  a  given  article  annexed  to  the  realty,  does,  or  does 
not  become  a  fixture,  the  judicial  tests  are  usually  said  to 
be:  (1)  the  intention  with  which  the  annexation  was  made; 
(2)  the  physical  character  of  the  annexation,  and  (3)  the 
adaptability  of  the  article  to  the  uses  for  which  the  realty 
is  put.*  While  different  courts,  because  of  the  peculiar  facts 
of  a  given  case,  may  give  undue  prominence  to  one  or  the 
other  of  these  tests,  in  determining  the  question,  it  is  usually 
necessary  to  consider  them  all,  to  reach  a  proper  solution,  in 

*  State  Bank  r.  Perceval,  65  Mo.  683;  McRea  r.  Nat.  Bank,  66  N.  Y. 
489;  Hopewell  Mills  r.  Staunton  Bank,  l.'iO  Mass.  519;  15  Amer.  St. 
Rep.  2.35;  Manwaring  v.  Jennison,  61  Mich.  117;  Finfield  v.  National 
Bank.  148  111.  163,  39  Amer.  St.  Rep.  166,  13  Amer.  &  Eng.  Enc.  Law 
(2  ed.)  593. 
12 


ClI.    II.]  FIXTURES.  §    11 

every  ease.  The  physical  character  of  the  annexation  to 
the  land  is  not,  alone,  sufficient  to  determine  whether  an  an- 
nexed chattel  has  become  real  estate,  but  concurring  with 
such  physical  annexation,  in  order  to  effect  a  merger  of  the 
chattel  into  the  realty,  there  must  have  existed  an  intention, 
on  the  part  of  the  party  attaching  it  to  the  realty,  of  making 
it  a  permanent  accession  to  the  land  and  an  adaptability, 
of  the  chattel,  for  the  use  to  which  that  part  of  the  realty 
to  which  it  is  annexed,  is  put.'*  Keeping  in  mind  these  tests, 
and  the  underlying  principles  that  where  an  object  is  so  at- 
tached to  the  land,  as  to  become  a  part  thereof,  it  goes  to  the 
heir,  and  where,  from  its  nature  and  purpose,  it  was  clearly 
not  intended  that  it  should  form  a  part  of  the  realty,  but 
was  only  attached  for  temporary  purposes  of  enjoyment,  it 
is  removable  and  goes  to  the  executor,  there  will  be  little 
difficulty  in  determining  all  questions  of  fixtures,  whether 
between  landlord  and  tenant,  or  tenant  for  life  and  re- 
mainderman, for  any  apparant  change  in  the  law,  in  this  re- 
gard, is  not  in  the  principles  themselves,  but  arises  from 
their  application,  under  changed  conditions  of  life  and 
habits.* 

5  In  a  late  New  Jersey  case  it  is  held,  that  in  order  to  transmute 
chattels  into  realty,  it  must  appear,  First,  that  the  chattels  were  actually 
annexed  to  the  real  estate,  or  something  appurtenant  thereto;  second, 
that  they  were  applied  to  the  use  to  which  that  part  of  the  realty  to 
which  they  were  connected  was  appropriated ;  and,  third,  that  they  were 
annexed  with  the  intention  to  make  them  a  permanent  annexation  to 
the  freehold.  Atlantic  S.  D.  T.  Co.  v.  Atl.  City  L.  Co.,  64  N.  J.  Eq.  140, 
53  Atl.  Rep.  212.  The  physical  character  of  the  annexation  of  a  chattel 
to  land  does  not,  alone,  determine  the  question  of  whether  or  not  the 
chattel  becomes  real  estate.  To  effect  a  merger  of  a  chattel  into  realty 
there  must  be  an  actual  physical  annexation;  an  adaptability  for  use 
with  that  part  of  the  realty  to  which  it  is  annexed  and  an  intention, 
deducible  from  all  the  circumstances,  by  the  party  annexing,  to  make  it 
a  permanent  accession.  Hayford  v.  Wentworth,  97  Me.  347,  54  Atl. 
Rep.  940. 

«  Leigh  V.  Taylor,  71  Law  J.  Ch.  272  (1902),  App.  Cas.  157,  86  Law  T. 
239;  50  Weekly  Rep.  623. 

13 


§    13  FIXTURES.  [part   1. 

§  12.  Identity  and  subsequent  use  of  chattel. —  Illustrative 
of  the  tests  by  which  personal  property,  annexed  to  the  real 
estate,  may  or  may  not  become  a  fixture  and  so  far  have  its 
character  changed  as  to  be  converted  from  personalty,  into 
real  estate,  provided  the  nature  of  the  property  is  such  that 
it  will  not  retain  its  original  character  and  fitness  for  sub- 
sequent use  as  personalty,  and  the  intention  and  mode  of  the 
annexation  are  such  as  to  evidence  an  intention  that  it  should 
become  real  estate,  is  the  recent  case,  where  it  was  attempted 
to  change  the  character  of  a  hotel  building,  annexed  to  the 
land  and  conveyed  as  a  part  of  it,  by  a  subsequent  agree- 
ment that  it  should  be  considered  personalty,  which  the  Court 
held  could  not  be  done,^  and  another  case,  where  water  pipes 
and  meters — although  annexed  to  the  real  estate  by  the 
owner,  who  subsequently  made  a  deed  of  the  land  to  which 
they  were  annexed,  granting  all  "rights,  privileges  and  ap- 
purtenances" to  the  land  belonging — were  held  not  to  become 
a  part  of  the  real  estate,  as  such  property  did  not  lose  its 
character  of  personalty,  nor  was  its  identity  so  changed  that 
it  lost  its  original  fitness  for  use,  on  being  removed  from  the 
realty.^ 

§  13.  Between  what  parties  the  question  may  arise. — 
Where  the  person  who  erected  the  fixture  has  a  permanent 

^  Beeler  v.  Mercantile  Co.   ( Idaho,  1902 ) ,  70  Pac.  Rep.  943. 

sMulrooney  f.  Obear,  171  Mo.  613,  71  S.  W.  Rep.  1019.  See,  also, 
Dunamire  v.  Port  Angeles  Water,  etc.,  Co.,  63  Pac.  Rep.  1095.  In  a 
recent  Arizona  case,  a  log  fence,  erected  to  enclose  a  tract  of  Govern- 
ment land,  which,  by  mistake,  was  built  on  an  adjoining  tract,  acquired 
from  the  Government  by  another  person,  was  held  to  pass  as  an  incident 
of  the  realty  and  was  not  the  subject  of  removal,  as  a  trade  fixture. 
Hereford  v.  Pusch  (1902),  68  Pac.  Rep.  794.  And,  in  Montana,  it  is 
held  that  &  stockholder  who  adds  to  an  opera  house,  a  drop  curtain, 
chairs,  stage  appliances  and  articles  to  be  used  in  connection  with  the 
opera  house,  owned  by  a  corporation,  loses  title  thereto  and  the  articles 
become  fixtures  to  the  extent  of  passing,  with  an  execution  sale  of  the 
opera  house,  to  a  purchaser  thereof.  Murray  r.  Bender,  125  Fed.  Rep. 
705,  60  C.  C.  A.  473,  63  L.  R.  A.  783. 
14 


CH.   11.  ]  FIXTURES.  §   13 

estate  in  the  land,  such  as  a  fee,  the  legal  maxim  quidquid 
plantatur  solo  solo  cedit,  applies  to  the  fullest  extent,  qual- 
ified only  by  the  rule  that  the  annexation  must  be  of  a 
permanent  character.  The  question,  as  to  the  right  to  re- 
move such  a  fixture,  may  arise  between  (1)  heirs  and  the 
executor;  (2)  vendor  and  vendee;  (3)  mortgagor  and 
mortgagee;  (4)  life  tenant  and  remainderman;  (5)  land- 
lord and  tenant,  and,  (6)  licensor  and  licensee.  In  all  these 
cases,  the  general  rule  is,  that  all  annexations  of  a  perma- 
nent character  pass  with  the  realty  respectively  to  the  heir, 
vendee,  mortgagee,  remainderman,  landlord,  and  licensor  and 
cannot  be  removed  by  the  executor,  vendor,  mortgagor,  life 
tenant,  tenant,  or  licensee.  Such  is  the  rule,  even  though 
the  severance  might  be  made  without  any  material  injury 
to  the  freehold.  But  the  permanent  or  temporary  character 
of  the  annexation  often  presents  some  difficult  questions.  It 
seems  that  the  manner  of  fastening  offers,  in  most  cases,  the 
true  solution.  If  the  fastening  is  firm  and  secure,  then  it 
gives  permanency  to  the  annexation,  and  makes  the  thing 
attached  an  immovable  fixture.  Such  would  be  engines, 
boilers,  dye-kettles,  cotton-gins,  and  all  other  kinds  of  ma- 
chinery which  are  firmly  attached  to  the  building  by  rods 
and  bolts  passing  through  the  joists  and  timber,  gas  fixtures 
and  water-works,  as  well  as  houses  and  other  buildings, 
erected  upon  a  firm  foundation.  Such  fixtures  would,  as  be- 
tween the  parties  named,  constitute  a  part  of  the  realty,  and 
pass  with  it.®    But  the  permanency  of  the  annexation  does 

»Hill  f.  Sewald,  53  Pa.  St.  274;  Voorhies  v.  Freeman,  2  Watts  &  S. 
116;  Union  Bank  v.  Emerson,  15  Mass.  159;  Noble  r.  Butterworth,  19 
Pick.  314;  Tifft  v.  Horton,  53  N.  Y.  377;  13  Am.  Rep.  937;  Quinby  v. 
Manhattan  Cloth,  etc.,  Co.,  24  N.  J.  Eq.  260;  Parsons  v.  Copeland,  38 
Me.  537;  Lavenson  v.  Standard  Soap  Co.,  80  Cal.  245;  Speiden  v.  Par- 
ker. 46  N.  J.  Eq.  292;  Home  r.  Smith,  105  N.  C.  322;  Doughty  v.  Owen 
(N.  J.),  19  Atl.  Rep.  540;  Langdon  v.  Buchanan,  62  N.  H.  657;  Racket 
r.  Amsden,  57  Vt.  432;  Brass  Foundry,  etc..  Works  v.  Gallentine,  99 
Ind.  525;  Dudley  v.  Hurst  (Md.),  8  Atl.  Rep.  901;  Kisterbock  v.  Lan- 
ning   (Pa.),  7  Atl.  Rep,  696,  note;  Scheifele  v.  Schmitz,  42  N.  J.  Eq. 

15 


§    13  FIXTURES.  [part  L 

not  always  determine  the  fixture  to  be  irremovable.  While 
such  permanency  of  annexation  presumptively  denies  the 
right  of  removal  of  the  fixture  as  between  the  parties  just 
named,  this  is  so  only  because  the  permanent  character  of 
the  interest  in  the  land  of  the  party  who  makes  the  annexa- 
tion established,  in  conjunction  with  the  permanent  char- 
acter of  the  annexation,  an  intention  on  his  part  to  make 
it  permanently  an  appurtenant  of  the  land.  It  is  in  every 
case  a  question  of  intent.  And  if  in  any  case,  even  as  be- 
tween the  parties  named,  the  contrary  intention  is  clearly 
established,  the  fixture  will  be  removable,  notwithstanding 
the  annexation  was  permanent  in  character,  provided,  al- 
ways, that  the  removal  can  be  made  without  any  permanent 
material  damage  to  the  estate.^"  Thus  the  intention  to  make 
a  permanent  fixture,  which  rests  upon  the  security  of  the 
annexation,  will  always  be  rebutted,  and  the  contrary  in- 
tention established,  where  the  owner  of  the  land,  to  which  the 
fixture  was  attached,  had  executed  a  chattel  mortgage  over 
the  thing,  either  contemporaneously  with  or  prior  to  its  at- 
tachment to  the  land,  at  least  so  far  as  to  give  priority  of 

700;  8.  c.  11  Atl.  Rep.  257,  note;  Smyth  v.  Sturges,  108  N.  Y.  495;  s.  c. 
15  N.  E.  Rep.  544;  Appeal  of  Williams  (Pa.),  16  Atl.  Rep.  810;  s.  c. 
24  W.  N.  C.  365;  Hill  v.  Munday  (Ky.),  11  S.  W.  Rep.  956  (stock  of 
ice  in  house  on  land  conveyed)  ;  Burrell  v.  Lumber  Co.,  65  Mich.  571; 
Childs  V.  Hurd,  32  VV.  Va.  66;  Pierce  v.  George,  108  Mass.  78;  Hill  v. 
Hill,  43  Pa.  St.  521;  McRea  v.  Central  National  Bank,  66  N.  Y.  489; 
Bumsides  v.  Twitchell,  43  N.  H.  390;  Green  v.  Phillips,  26  Gratt.  752, 
21  Am.  Rep.  323;  Latham  v.  Blakely,  70  N.  C.  369;  Richardson  v.  Bor- 
den, 42  Miss.  71,  2  Am.  Rep.  595;  Deal  V.  Palmer,  72  N.  C.  582;  Stock- 
well  r.  Campbell,  39  Conn.  362,  11  Am.  Rep.  393. 

JoManwaring  v.  Jennison,  61  Mich.  117;  Carpenter  v.  Allen,  150  Mass. 
281;  Vail  V.  Weaver,  132  Pa.  St.  363;  Buzzell  v.  Cummings,  61  Vt.  213; 
Elliott  V.  Wright,  30  Mo.  App.  217;  John  Van  Range  Co.  v.  AHen, 
(Miss.)  7  So.  Rep.  499;  Foster  v.  Prentiss,  75  Me.  279;  Hart  v.  Sheldon, 
.34  Hun  38;  DeLaey  v.  Tillman,  83  Ala.  155;  Harkey  v.  Cain,  69  Tex. 
146,  «.  e.  6  S.  W.  Rep.  637,  note;  Benedict  v.  Marsh,  127  Pa.  St.  309; 
Voorhees  v.  McGinniss,  48  N.  Y.  278. 


16 


CH,   II.]  FIXTURES.  §    14 

lien  to  the  chattel  mortgage."  Where  the  right  of  removal 
is  denied  to  the  party  who  annexed  the  fixture,  the  fixture, 
in  case  of  such  unlawful  removal,  can  be  recovered,  as  long 
as  it  remains  in  the  posession  of  the  party  so  removing  it, 
or  of  one  who  is  not  a  bona  fide  purchaser.  But  if  the  fix- 
ture has-  been  transferred  to  a  bona  fide  purchaser  for  value, 
he  acquires  a  good  title  thereto  and  it  cannot  be  taken  away 
from  him.  And  the  remedy  of  the  owner  of  the  land  and 
fixture  is  for  damages  against  the  party  who  removed  the 
fixture.^- 

§  14.  Constructive  annexation. —  The  permanency  of  the 
annexation  may  be  presumed  from  the  weight  and  size  of 
the  object,  and  its  suitableness  for  use  and  enjoyment  on 
the  land  on  which  it  rests.  Thus  a  statue  of  huge  dimen- 
sions, resting  with  its  pedestal  upon  a  permanent  foundation, 
and  erected  upon  a  lawn  for  the  purpose  of  ornament,  was 
held  to  be  a  part  of  the  realty.^^  Under  the  doctrine  of  con- 
structive annexation,  it  has  been  held  that  the  poles,  wires 
and  lamps  erected  in  the  street,  by  an  electric  light  com- 
pany,   were    fixtures    and    appurtenant    to    the    company's 

11  Carpenter  r.  Allen,  150  Mass.  281;  Sword  r.  Low  (111.),  13  N.  E. 
Rep.  826;  Miller  v.  Wilson,  71  Iowa  610;  Henkle  r.  Dillon,  15  Ore<,'. 
610,  8.  c.  17  Pac.  Rep.  148;  see  Campbell  v.  Roddy,  44  N.  J.  Eq.  244, 
«.  c.  14  Atl.  Rep.  279;  McGorrisk  V.  Dwyer  (Iowa),  43  N.  W.  Rep.  215; 
Binkley  v.  Forkner,  117  Ind.  176,  s.  c.  19  N.  E.  Rep.  753,  note. 

i2Betz  V.  Verner,  46  N.  J.  Eq.  250.  Fixtures  annexed  to  real  estate 
by  one  in  possession,  under  a  contract  of  purchase,  as  against  the  vendor 
of  the  land,  cannot  be  removed  by  the  vendee,  nor  be  seized  and  sold, 
on  an  execution  against  him,  as  his  personal  property.  Scibcrling  v. 
Miller,  106  111.  App.  190,  207  111.  443,  69  N.  E.  Rep.  800.  The  rule  that 
ornamental  fixtures  are  removable  applies  as  well  to  life  tenant  and 
remainderman  as  to  landlord  and  tenant.  In  re  DeFalbe,  70  Law  .J. 
Ch.  286;  (1901)  1  Ch.  523;  84  Law  T.  273;  49  Weekly  Rep.  455;  Ward 
r.  Taylor,  id. 

13  Snedeker  v.  Waring,  12  N.  Y.  170.  See,  also,  to  same  effect,  Cavis 
r.  Beckford,  62  N.  H.  229;  Hopewell  Mills  v.  Taunton  Sav.  Bank,  150 
Mass.  519, 

2  17 


§    15  FIXTURES.  [part  I. 

plant."  Where  things,  though  temporarily  detached,  are 
permanently  used  in  connection  with  the  land,  they  are  fix- 
tures and  pass  with  the  realty.  Thus,  hop-poles,  stacked  up 
in  piles,  rolls  in  an  iron  mill,  lying  loose  in  the  mill,  fencing 
materials,  etc.,  were  held  to  be  fixtures,  even  though  they 
were  at  the  time  detached  from  the  soil." 

§  15.  Temporary  annexation. —  But  where  the  attachment  is 
only  for  the  purpose  of  keeping  the  things  steady,  and  they 
were  not  specially  adapted  to  use  upon  the  premises  in  ques- 
tion, the  simple  fastening,  which  may  exist,  will  not  give  to 
them  the  character  of  permanent  fixtures.  Thus,  looms  and 
cording  machines,  fastened  by  screws  to  the  floor,  a  large  ice 
chest  used  in  a  tavern,  and  other  such  articles,  are  personal 
property,  and  will  not  pass  with  the  realty  to  the  heir,  vendee 
or  mortgagee.^*  And  where  a  house  is  not  put  upon  a  firm 
foundation,  the  courts  are  inclined  to  hold  that  it  was  in- 
tended to  be  a  temporary  structure,  and  that  it  can  be 
moved,"     A  great  many  things,  such  as  rolls  in  an  iron  mill, 

i«  Keating  Implement,  etc.,  Co.  v.  Power  Co.  (Tex.),  12  S.  W.  Rep. 
489. 

15  Bishop  V.  Bishop,  11  N.  Y.  123;  Wadleigh  v.  Janvrin,  41  N.  H.  503; 
Hill  r.  Sewald,  53  Pa.  St.  274;  Voorhies  v.  Freeman,  2  Watts  &  S.  116; 
Goodrich  v.  Jones,  2  Hill  142 ;  Meig's  Appeal,  62  Pa.  St.  28 ;  1  Am.  Rep. 
372;  McLaughlin  v.  Johnson,  46  111.  163;  Fulton  17.  Norton,  64  Me.  410; 
Glidden  v.  Bennett,  43  N.  H.  306;  Smith  v.  Price,  39  111.  28;  Doughty 
r.  Owen  (N.  J.),  19  Atl.  Rep.  540.  It  is  held,  in  Georgia,  that  where  a 
bouse  of  brick  is  destroyed  and  the  brick  and  other  material  composing 
the  house,  falls  on  the  land,  they  remain  a  part  of  the  realty  and  the 
owner,  after  a  conveyance  of  the  land,  cannot  remove  them.  Guernsey 
r,  Phinizy,  113  Ga.  898,  39  S.  E.  Rep.  402. 

leMurdock  r.  Gifford,  18  N.  Y.  28;  Cresson  v.  Stout,  17  Johns.  116; 
Voorhies  r.  McGinnis,  48  N.  Y.  278;  Pierce  V.  George,  108  Mass.  78, 
11  Am.  Rep.  310;  Blanche  v.  Rogers,  26  N.  J.  Eq.  563;  Rogers  v.  Bro- 
kaw,  25  N.  J.  Eq.  496;  Hill  v.  Sewald,  53  Pa.  St.  274;  Feimster  v. 
Johnston,  64  N.  C.  259;  Graves  v.  Pierce,  53  Mo.  423;  Long  V.  Cokern, 
29  III.  App.  304,  8.  c.  128  111.  29;  Rogers  V.  Prattville  Mfg.  Co.,  81  Ala. 
483;  Walker  v.  Grand  Rapids,  etc.,  Co.  (Wis.),  35  N.  W.  Rep.  332. 

"  Carlin  r.  Ritter,  68  Md.  478. 
18 


AMERICAN  TITLE  COMPANY 


CJH>  U.]  I'lXTURES.  f  16' 

storm  doors,  steps,  etc.,  which,  when  actually  fitted  for  use 
and  attached  to  the  premises,  are  held  to  be  permanent  fix- 
tures, remain  personal  property  until  so  fitted  and  attached, 
though  they  may  be  deposited  upon  the  land.^®  When  the 
question  arises  between  mortgagor  and  mortgagee,  the  fix- 
ture is  not  removable,  whether  it  is  annexed  by  the  mort- 
gagor or  mortgagee,  before  or  after  the  execution  of  the  mort- 
gage.^® The  rule  as  to  fixtures  is  the  same  between  debtor 
and  creditor,  and  the  heir  or  vendee  and  the  widow,  in  re^ 
spect  to  the  premises  set  out  to  her  for  dower.  ^°  ^—  » 

§  16.  Question  of,  between  landlord  and  tenant. —  When  the 
question  arises  between  landlord  and  tenant,  or  remainder- 
man and  executor  of  tenant  for  life,  in  respect  to  the  fixtures 
placed  upon  the  land  by  the  tenant  for  years,  and  for  life 

18  Johnson  v.  Mehaffy,  43  Pa.  St.  308 ;  Burnside  v.  Twitchell,  43  N.  H. 
390;  Peck  V.  Batchelder,  40  Vt.  233;  Noble  v.  Sylvester,  42  Vt.  146; 
Miller  V.  Wilson,  71  Iowa,  610. 

18  Roberts  v.  Dauphin  Bank,  19  Pa.  St.  74;  Richardson  v.  Copeland, 
6  Gray  536;  Haskin  v.  Woodward,  45  Pa.  St.  42;  Crane  v.  Brigham, 
11  N.  J.  Eq.  30;  Voorhies  v.  McGinnis,  48  N.  Y.  278;  Burnside  v. 
Twitchell,  43  N.  H.  390;  Lynde  v.  Rowe,  12  Allen,  100;  Quinby  v.  Man- 
hattan, etc.,  Co.,  24  N.  J.  Eq.  260;  CuUwick  V.  Swindell,  L.  R.  3  Eq^ 
249;  Foote  V.  Gooch,  96  N.  C.  265,  s.  c.  1  S.  E.  Rep.  525,  note;  South- 
bridge  Sav.  Bank  r.  Mason,  18  N.  E.  Rep.  406,  note;  McFadden  v.  Allen,, 
3  N.  Y.  S.,  note,  s.  c.  50  Hun  361.  But  the  mortgagor  may  remove  the: 
fixtures  erected  by  him,  where  he  has,  espressly  or  by  necessary  implica- 
tion, reserved  the  right  to  do  so.  Waterfall  v.  Penistone,  6  E.  &  B.  876; 
Crane  f.  Brigham,  11  N.  J.  Eq.  30;  Burnside  v.  Twitchell,  43  N.  H.  390; 
Crippen  r.  Morrison,  13  Mich.  23.  A  chattel  mortgage  of  the  fixture 
executed  before  or  contemporaneous  with  its  annexation,  will  have  pri- 
ority over  a  prior  mortgage  of  the  realty.  TiflTt  v.  Horton,  53  N.  H. 
377,  13  Am.  Rep.  537;  Eaves  v.  Estes,  10  Kan.  314,  15  Am.  Rep.  345; 
Carpenter  V.  Allen,  150  Mass.  281;  Sword  V.  Low  (111.),  13  N.  E.  Rep,. 
826;  Miller  v.  Wilson,  71  Iowa  610;  Hankie  v.  Dillon,  15  Oreg.  610,  s.  c,. 
17  Pac.  Rep.  148;  Binkley  v.  Forkner,  117  Ind.  176,  s.  c.  19  N.  E.  Rep. 
753,  note;  Campbell  v.  Roddy,  44  N.  J.  Eq.  244;  McGorrisk  v.  Dwyer 
(Iowa),  43  N.  W.  Rep.  215.     See  also  Ropps  v.  Barker,  4  Pick.  238. 

20  Goddard  v.  Chase,  7  Mass.  432 ;  Farrar  v.  Chanflfetete,  5  Denio  527 ;; 
Powell  r.  Monson  Co.,  3  Mason  459;  Hutchman's  Appeal,  27  Pa.  St^ 
209;  Way  r.  Way,  42  Conn.  52. 

19 


§    16  FIXTURES.  [part   1. 

respectively,  a  more  liberal  rule  is  followed.  The  general 
rule,  above  alluded  to,  that  everything  permanently  annexed 
to  the  soil  becomes  a  part  of  the  realty,  and  cannot  be  re- 
moved, still  holds  good,"  But  since  the  tenant's  interest  in 
the  land  is  temporary  in  character,  the  presumption  of  per- 
manency resulting  from  the  character  of  the  annexation  has, 
in  the  more  important  cases,  to  give  way  to  a  counter-pre- 
sumption that  the  tenant  did  not  intend  to  continue  the  an- 
nexation longer  than  his  term;  and  for  this  reason  there  are 
certain  exceptions,  created  in  behalf  of  the  tenant  in  respect 
to  certain  classes  of  fixtures.  The  tenant  is  permitted  to  re- 
move a  fixture,  which  falls  within  one  of  these  classes,  even 
though  firmly  affixed  to  the  soil,  provided  such  removal  -will 
not  result  in  any  permanent  and  material  injury  to  the  free- 
hold. These  are  (1)  trade  fixtures;  (2)  agricultural  fix- 
tures; and  (3)  fixtures  for  domestic  use  and  convenience. 
Until  lately,  the  common-law  rule  was  relaxed  only  in  favor 
of  trade  fixtures,  while  agricultural  and  domestic  fixtures 
received  the  same  strict  construction  as  is  applied  to  all  fix- 
tures between  the  heir  and  executor  and  other  classes  above 
mentioned.  The  tendency  of  the  law  at  the  present  day  is 
to  permit  the  tenant  to  remove  all  fixtures  he  may  attach  to 
the  soil,  which  come  under  one  of  these  classes,  and  which 
can  be  removed  without  permanent  injury  to  the  premises." 

21  Elwes  V.  Maw,  3  East  38;  2  Smith's  Ld.  Cas.  212;  Ford  v.  Cobb,  20 
N.  Y.  344;  Tifft  v.  Horton,  53  N.  Y.  377,  13  Am.  Rep.  537;  Madigan  v. 
McCarthy,  108  Mass.  376,  11  Am.  Rep.  371;  McNally  v.  Connolly,  70 
Cal.  3. 

22Cap€n  V.  Peckham,  35  Conn.  88,  a.  c.  9  Am.  Law  Reg.  (n.  s.)  136; 
Seeger  v.  Pettit,  77  Pa.  St.  437,  18  Am.  Rep.  452;  2  Smith's  Ld.  Cas. 
278;  Merritt  v.  Judd,  14  Cal.  59;  Harkness  v.  Sears,  26  Ala.  493;  Wing 
V.  Gray,  36  Vt.  261.  Where  the  tenant  is  a  debtor,  and  he  has  the  right 
to  remove  the  fixtures,  his  judgment-creditor  may,  under  an  execution 
against  personal  property,  levy  and  sever  the  same  from  the  freehold. 
Minshall  r.  Lloyd,  2  M.  &  W.  450;  2  Smith's  Ld.  Cas.  (7  ed.),  217; 
O'Donnell  v.  Hitchcock,  118  Mass.  401;  Overton  V.  Williston,  31  Pa.  St. 
155;  State  v.  Bonham,  18  Ind.  231.  See,  also,  Nigro  f.  Hatch  (Ariz.), 
11  Pac.  Rep.  177;  Kile  v.  Gillmer,  114  Pa.  St.  381;  CoUonore  v.  Giltis, 
20 


CH.   II.]  FIXTURES.  §    16 

Among  the  fixtures  erected  for  the  purpose  of  trade  and 
manufacture  by  a  tenant,  which  are  held  to  be  removable  by 
him  at  the  termination  of  his  tenancy,  are  the  following: 
Vats  and  coppers  of  a  soap  boiler,  cider  mills  and  presses, 
buildings  erected  for  trade,  fire  engines  in  a  colliery,  kettles 
in  distilleries,  store  fixtures,  etc.-^  But  where  the  tenant  re- 
places an  old  and  worn  out  article,  such  as  a  furnace,  which 
he  finds  attached  to  the  building  when  he  takes  possession, 
with  a  new  one,  he  cannot  remove  the  latter  at  the  termi- 
nation of  his  tenancy.^*  Nursery  trees  are  held  to  be  such 
an  agricultural  fixture  as,  when  planted  by  the  tenant  for 
the  purpose  of  sale,  to  be  capable  of  being  removed.-^  So, 
also,  are  stoves,  gas  fixtures,  and  other  articles,  erected  and 
attached  to  the  house  by  the  tenant  for  his  domestic  use 

149  Mass.  578.  All  doubt  as  to  removal  of  fixtures,  by  a  tenant,  is 
resolved  in  favor  of  the  landlord  (Johnson  v.  Wooding,  24  Ohio  Cir. 
Ct.  608,  1902),  and  where  the  lease  is  silent  as  to  the  right  of  removal 
and  the  removal  of  an  addition  to  the  leased  premises,  built  by  the 
tenant,  would  amount  to  waste,  it  is  not  removable.  Holmes  v.  Stand- 
ard Pub.  Co.  (N.  J.  Ch.  1903),  55  Atl.  Rep.  1107. 

23Ehves  V.  Ma  we,  3  East  38;  2  Smith's  Ld.  Cas.  278;  Holmes  v. 
Tremper,  20  Johns.  29 ;  Robinson  v.  Shuler,  5  Cow.  323 ;  Torrey  v.  Bur- 
nett, 38  N.  J.  L.  457,  20  Am.  Rep.  421;  Holbrook  v.  Chamberlin,  110 
Mass.  155,  17  Am.  Rep.  146;  O'Donnell  v.  Hitchcock,  118  Mass.  401; 
Graves  v.  Pierce,  53  Mo.  423;  Cowden  v.  St.  John,  16  Iowa  590.  See 
Guthrie  v.  Jones,  108  Mass.  191;  O'Brien  V.  Kusterer,  27  Mich.  289; 
Docking  v.  Frazell,  38  Kan.  420;  Smith  f.  Whitney,  147  Mass.  479; 
Farnsworth  v.  West.  U.  Tel.  Co.,  6  N.  Y.  Supp.  735  (telegraph  wires 
put  on  poles  by  lessee  of  another  company's  right  of  way) ;  Thorn  v. 
Sutherland,  4  N.  Y.  Supp,  694. 

24  Hay  17.  Tillyer    (N.  J.),  14  Atl.  Rep.  18. 

25  Penton  v.  Robert,  2  East  88 ;  Miller  v.  Baker,  1  Mete.  27 ;  Whit- 
marsh  V.  W^alker,  lb.  313;  Brooks  v.  Galster,  51  Barb.  196.  See  Jenkins 
V.  Gething,  2  Johns.  &  H.  520.  The  tenant  cannot  remove  manure  made 
upon  the  farm.  Fay  r.  Muzzey,  13  Gray  53;  Lewis  v.  Jones,  17  Pa.  St, 
262;  Ruckmann  t\  Outwater,  28  N.  J.  L.  581.  Contra  Smith  wick  v. 
Ellison,  2  Ired.  326.  A  blacksmith  shop,  attached  on  runners  and  then 
to  the  floor  of  a  leased  building,  is  removable  by  the  tenant  (Smyth  v. 
Stoddard,  203  111.  424,  67  N.  E.  Rep.  980),  and  so  is  a  syphon  water 
closet,  placed  in  an  office  building  by  a  tenant.  Hayford  v.  Wentworth 
(1903),  97  Me.  347,  54  Atl.  Rep.  940. 

21 


§    17  FIXTURES.  [part   I. 

and  convenience.-'  The  parties  may  by  express  agreement 
enlarge  the  tenant's  power  of  removal  of  fixtures,  giving  him 
the  power  to  remove  fixtures,  which  independently  of  the 
agreement,  the  courts  would  hold  to  be  irremovable.  But  in 
order  that  such  an  agreement  may  be  enforced  against  the 
purchaser  of  the  reversion,  he  must  know  of  its  existence, 
either  actually  or  constructively,  through  its  appearance  in 
the  lease."  The  same  general  rules  are  held  to  apply  to  the 
fixtures  annexed  to  the  freehold  by  the  mortgagee.^* 

§  17.  Fixtures  erected  by  licensee. —  As  between  licensor 
and  licensee,  the  same  general  rule  that  obtains  to  fixtures  an- 
nexed to  the  land  by  a  tenant,  applies,  and  because  of  the 
limited  and  oft-times  uncertain  right  of  the  licensee,  which  is 
held  not  to  entitle  him  to  an  interest  or  estate  in  the  realty, 
as  to  which  his  license  extends,^"  in  annexations  to  the  land 
made  by  him,  there  is  generally  an  absence  of  intention  of 
permanency.  A  building,  or  other  immovable  property,  an- 
nexed to  the  land  by  a  licensee,  does  not,  therefore  become 
a  fixture,  unless  the  intent  to  part  with  the  ownership  of  the 

28  Beck  V.  Rebow,  1  P.  Wms.  94;  Lawton  v.  Lawton,  3  Atk.  15; 
Grymcs  v.  Boweren,  6  Bing.  437;  Antoni  v.  Belknap,  102  Mass.  193; 
Vaiighen  v.  Haldeman,  33  Pa.  St.  522;  Hays  v.  Doane,  11  N.  J.  Eq.  84; 
Montague  v.  Dent,  10  Rich.  135;  Philbrick  i\  Ewing,  97  Mass.  133. 

27  Stevens  v.  Rose  (Mich.),  37  N.  W.  Rep.  205. 

28  Cook  V.  Cooper,  18  Oreg.  142.  In  Springfield  Foundry  &  Machine 
Co.  r.  Cole  ( 130  Mo.  1 ) ,  the  rule  as  to  the  removal  of  fixtures  between 
grantor  and  grantee  and  mortgagor  and  mortgagee,  is  said  to  be  re- 
laxed, in  the  case  of  landlord  and  tenant,  for  the  encouragement  of 
mechanical  and  similar  pursuits  and  because  of  the  temporary  character 
of  the  relation  existing. 

2»  Boone  v.  Stover,  66  Mo.  430;  Chenowitch  v.  Granby  Co.,  74  Mo. 
174;  United  States  v.  Gratiot,  14  Pet.  (U.  S.)  526;  East  Jersey  Co.  f. 
Wright,  32  N.  J.  Eq.  248;  Grove  V.  Hodges,  55  Pa.  St.  504;  Young  v. 
Ellis,  91  Va.  297;  Genet  v.  Delaware  Co.,  136  N.  Y.  602;  Consolidated 
Co.  V.  Peers,  150  111.  344;  Paul  v.  Cragnas  (Nev.),  59  Pac.  Rep.  957; 
Plummer  v.  Hillside  Co.,  160  Pa.  St.  483,  20  Amer.  &  Eng.  Enc.  Law 
(2  ed.)  777. 


CH.   n.]  FIXTURES.  §    18 

personal  property  so  annexed  is  clearly  apparent.'"  Fully 
as  much  importance  is  attached  to  the  relation  of  the  party 
making  the  annexation,  to  the  land  and  the  permanency  and 
habitual  character  of  the  annexation,  as  is  paid  to  the  man- 
ner or  form  of  the  fastening.  When  the  absolute  owner  of 
land,  for  the  better  use  of  his  land,  erects  property  upon,  or 
attaches  it  to  the  freehold,  it  will  go  to  his  heir,  or  pass  by 
deed,  to  his  grantee,  and  the  same  general  rule  applies  be- 
tween mortgagor  and  mortgagee,  but  as  between  landlord  and 
tenant  and  licensor  and  licensee,  this  rule  is  relaxed,  with  a 
view  to  the  encouragement  of  mechanical  and  agricultural 
pursuits.^"^ 

§  18.  Time  for  removal  of  fixtures. —  If  the  tenant  desires 
to  exercise  the  right  to  remove  fixtures,  he  must  do  so  during 
his  tenancy,  or  at  least  while  he  is  in  possession  and  holding 
over.  If  the  landlord  has  entered  and  resumed  possession, 
his  right  is  gone,  and  the  fixtures  become  the  property  of  the 
landlord.^''  So,  also,  if,  at  the  expiration  of  his  term,  the 
tenant  accepts  a  new  lease,  in  which  there  is  no  reservation 
of  the  right  to  remove  the  fixtures  erected  under  the  first 
lease,  the  tenant's  right  in  the  fixture  is  lost.*'    If  the  term 

30Salley  v.  Robinson,  96  Me.  474,  52  Atl.  Rep.  930;  Foimdry  &  Ma- 
chine Co.  V.  Cole,  130  Mo.  1. 

31  Foundry  &  Machine  Co.  v.  Cole,  130  Mo.  1 ;  Thomas  v.  Davis,  76 
Mo.  72;  Brown  v.  Baldwin,  121  Mo.  126;  Graves  v.  Pierce,  53  Mo.  423. 
And  in  the  late  case  of  Salley  V.  Robinson  (96  Me.  474,  52  Atl.  Rep. 
930),  a  building  erected  by  a  licensee  on  land  of  the  licensor,  was  held 
not  to  become  a  fixture,  but  to  retain  its  character  of  personalty. 

32  Stevens  v.  Burnham,  62  Neb.  672,  87  N.  W.  Rep.  546;  Weston  v. 
Woodcock,  7  M.  &  W.  14;  Dingley  v.  Buffum,  57  Me.  381;  Leader  v. 
Homewood,  5  C.  B.  (n.  s.)  546;  Burk  V.  Hollis,  98  Mass.  55;  Pugh  V. 
Arton,  L.  R.  8  Eq.  626;  Kutter  V.  Smith,  2  Wall.  491 ;  Cromie  v.  Hoover, 
40  Ind.  59;  Dubois  v.  Kelly,  10  Barb.  496;  Leman  v.  Best,  30  111.  App. 
323;  Darrah  v.  Baird,  101  Pa.  St.  265;  Smith  v.  Park,  31  Minn.  70; 
Erickson  v.  Jones  (Minn.),  35  N.  W.  Rep.  267;  Childs  r.  Hurd,  32  W. 
Va.  66;  Atkinson  v.  Dixon,  96  Mo.  588. 

ssLaughran  v.  Ross,  45  N.  Y.  792,  6  Am.  Rep.  173;  Marks  v.  Ryan, 
63  Cal.   107;  Second  Nat.  Bank  v.  Merrill  Co.   (Wis.),  34  N.  W.  Rep. 

23 


§    18  FIXTURES.  [PAKT    I. 

is  forfeited  by  any  act  of  the  lessee,  his  assignee  or  sublessee, 
has  a  reasonable  time,  after  sfteh  a  termination  of  the  lease, 
in  wliich  to  remove  the  fixtures.'* 

614,  note;  Carlin  r.  Ritter,  63  Md.  478;  Mueller  v.  C.  M.  &  St.  P.  Co., 
Ill  Wis.  300,  87  N.  W,  Rep.  239. 

s«  StansHeld  r.  Portsmouth,  4  C.  B.  (n;  s.)  119.  Trade  fixtures, 
taken  upon  property  by  a  tenant,  may  be  removed  by  him,  at  the  end 
of  his  term,  and  no  intention  of  abandonment  can  be  gathered  from  his 
acts,  unless,  after  the  expiration  of  his  term,  he  leaves  the  fixtures  on 
the  premises.  A  renewal  of  the  lease  or  a  second  lease  would  rebut  any 
presuniption  of  an  abandonment.  Radey  V.  McCurdy,  209  Pa.  306,  58 
Atl.  Rep.  558.  In  the  case  of  tenants  for  life  or  at  will,  the  rule  is 
somewhat  relaxed,  and  they  are  permitted  to  remove  their  fixtures  after 
the  expiration  of  their  term.  Weston  v.  Woodcock,  supra;  Ombony  v. 
Jones,  19  N.  Y.  234.  And  the  time  for  removal,  at  any  time,  may  be 
extended,  by  agreement  of  the  parties.  Torrey  v.  Burnett,  38  N.  J,  L. 
457,  20  Amer.  Rep.  421;  McCracken  v.  Hall,  7  Ind.  30;  Van  Ranseller 
r.  Penniman,  6  Wend.  5G9;  Bernheimer  v.  Adams,  75  N.  Y.  S.  93,  70 
App.  Div.  114.  A  tenant  who  holds  over,  after  the  expiration  of  his 
term  against  the  landlord's  will,  is  so  far  a  trespasser  as  to  forfeit  his 
right  to  remove  fixtures.  Dreiske  v.  Lumber  Co.,  107  111.  App.  285. 
A  new  lease,  silent  as  to  the  right  to  remove  fixtures,  when  accepted  by 
a  tenant,  also  terminates  the  right.  Champ  Spring  Co.  v.  Roth  Tool 
Co.  (Mo.  App.  1903),  77  S.  \\.  Rep.  344.  But  see  Baker  v.  McClurg, 
198  111.  28,  04  N.  E.  Rep.  701,  59  L.  R.  A.  131.  And  where  landlord 
prevents  removal,  see  Podlech  v.  Phelan,  13  Utah  333,  44  Pac.  Rep.  838. 

24 


CHAPTER  III. 

PRINCIPLES  OP  THE  FEUDAL  SYSTEM. 

Section  19.  What  is  tenure. 

20.  Feudal  tenure. 

21.  Feud  or  Fief. 

22.  Subinfeudation. 

23.  The  manor  and  its  system  of  dividing  up  its  lands. 

24.  FeoflFraent  and  livery  of  seisin. 

25.  Tenure  in  the  United  States. 

26.  Estates  —  Classes  of. 

27.  Same  —  Estates  in  possession  and  in  expectancy. 

28.  Joint  and  several  estates. 

§  19.  What  is  tenure. —  It  may  be  stated  as  a  general  rule, 
though  controverted  by  eminent  authority,  that  in  any  sys- 
tem of  jurisprudence,  there  cannot  be  an  absolute  owner- 
ship in  lands.  The  right  of  property  or  interest  in  them 
must  always  be  qualified,  that  interest  being  known  in  the 
English  and  American  law  as  an  estate.  A  man  can  have 
only  an  estate  in  the  land,  the  absolute  right  of  property  be- 
ing vested  in  the  State.  An  estate  has,  in  respect  to  real 
property,  the  three  elements,  the  right  of  posses- 
sion, right  of  enjoyment,  and  right  of  disposition, 
subject  to  the  right  of  the  State  to  defeat  it,  and 
appropriate  it  to  the  public  use,  or  for  the  public  good.  In 
what  cases,  and  under  what  circumstances,  the  State  can 
exercise  this  power  of  appropriation,  and  to  what  extent  the 
rights  of  possession,  enjoyment  and  disposition  may  be 
limited  by  the  imposition  of  restrictions,  depends  upon  the 
policy  of  each  system  of  jurisprudence.  In  some  States 
the  restrictions  are  numerous,  while  in  others  they  are  few, 
the  right  of  property  being  almost  absolute  in  the  individual. 
But  nowhere  can  the  private  right  of  property  be  said  to  be 

25 


I   20  THE   FEUDAL   SYSTEM.  [PART   I. 

absolute.  The  absolute  right  of  property  being  in  the  State, 
the  right  of  ownership,  which  an  individual  may  acquire, 
must,  therefore,  in  theory  at  least,  be  held  to  be  derired 
from  the  State,  and  the  State  has  the  right  and  power  to 
stipulate  the  conditions  and  terms,  upon  which  the  land  may 
be  held  by  individuals.  These  conditions  and  terms,  and  the 
rights  and  obligations  arising  therefrom,  constitute  what  is 
known  as  tenure  or  land  tenure. 

§  20.  Feudal  tenure. —  The  English  common  law  of  real 
property,  the  source  of  our  own  law,  is  founded  upon  the 
doctrines  of  the  feudal  system.  It  is  not  proposed  to  present 
here  a  detailed  account  of  that  i^arbaric  system;  for,  al- 
though it  long  survived  the  necessities  of  the  barbaric  life, 
which  brought  it  into  existence,  it  has  for  some  time  ceased 
to  exist,  and  only  prevailed  in  this  country  to  a  limited  ex- 
tent. But  a  passing  notice  must  be  given  to  it,  in  order  to 
explain  the  terms  and  phrases,  which  have  been  handed  down 
to  us  from  the  feudal  age,  and  which  we  now  find  in  daily  ap- 
plication to  the  law  of  real  property.^  According  to  the 
feudal  theory,  all  estates  were  derived  from  the  king.  He 
was  called  the  lord  paramount,  and  in  him  was  vested  the 
absolute  right  of  property.   .As  a  return  or  compensation 

1 "  The  principles  of  the  feudal  system  underlie  all  the  doctrines  of 
the  common  law  in  regard  to  real  estate,  and,  wherever  that  law  is 
recognized,  recourse  must  be  had  to  feudal  principles  to  understand  and 
carry  out  the  common  law.  The  necessity  of  words  of  limitations  in 
deeds  —  the  distinction  between  words  of  limitation  and  of  purchase, — 
the  principle  that  the  freehold  shall  never  be  in  abeyance,  that  a  remain- 
der must  vest  during  the  continuance  of  a  particular  estate,  or  eo 
inatanti  that  it  determines,  that  the  heir  cannot  take  as  a  purchaser, 
an  estate,  the  freehold  of  which,  by  the  same  deed,  is  vested  in  the  ances- 
tor, and  many  more  rules  and  principles  of  very  great  practical  impor- 
tance and  meeting  us  at  etery  turn  in  the  American,  as  well  as  the 
English  law  of  real  estate,  are  all  referable  to  a  feudal  origin."  2  Shars. 
Bl.  Coram.  78.  See  Lyle  v.  Richards,  9  Serg.  &  R,  333,  and  McCall  v. 
Neely,  3  Watts  71;  1  Pollock  &  Maitlands  Hist.  Eng.  Law  210,  211; 
Digby,  Hist.  Real  Prop.  34. 
26 


:h.  ul]  the  feudal  system.  §  20 

;or  the  possession  and  enjoyment  of  the  land,  the  owners,  or, 
IS  they  were  called,  vassals,  were  obligated  to  render  the  king 
:ertain  services,  the  failure  to  perform  which  defeated  the 
.^state,  and  caused  it  to  revert  to  the  lord  paramount.  The 
obligation  of  citizenship,  apart  from  the  obligations  of  a  ten- 
ant of  lands,  was  unknown  to  the  feudal  age."  It  is  not 
known  positively  whether  the  feudal  system  prevailed  to  any 
extent  under  the  Saxon  laws;^  but  certainly  it  is  not  met 
with,  in  its  thorough  and  complicated  organization,  nntil  the 
conquest.  Upon  his  accession  to  the  throne  of  England,  Wil- 
liam of  Normandy,  either  by  confiscation  or  surrender,  volun- 
tary or  involuntary,  brought  about  the  general  establish- 
ment of  the  feudal  system.  The  lands  of  those  who  fought 
under  the  banner  of  Harold  at  Hastings  were  confiscated  and 
distributed  among  the  Norman  chiefs.  And  subsequently,  in 
order  to  obtain  the  protection  guaranteed  to  all  vassals,  most 
of  the  other  land-owners  surrendered  their  lands  and  re- 
ceived them  back,  as  vassals  of  the  king.  The  lands  were 
distributed  among  the  chiefs,  both  Saxon  and  Norman,  who 
swore  allegiance  to  the  king,  and  obligated  themselves  to 
render  certain  services,  principally  military  in  their  char- 
acter.     These    chiefs    were    known    as    barons.      They    then 

2  1  Washburn  on  Real  Prop.  46,  citing  3  Guizot.  Hist.  Civ.  108. 

3  1  Washburn  on  Real  Prop.  38 ;  2  Bla.  Com.  48 ;  Co.  Litt.  76  b. ;  1 
Spencer  Eq.  Jur.  9;  Williams  on  Real  Prop.  2,  3;  1  Stubbs  Const.  Hist. 
Eng.  273,  274.  Mr.  Hallam  says:  "Whether  the  law  of  feudal  tenures 
can  be  said  to  have  existed  in  England  before  the  conquest,  must  be  left 
to  every  reader's  determination.  Perhaps  any  attempt  to  decide  it  posi- 
tively would  end  in  a  verbal  dispute.  In  tracing  the  history  of  every 
political  institution,  three  things  are  to  be  considered,  the  principle, 
the  form,  and  the  name.  The  last  will  probably  not  be  found  in  any 
genuine  Anglo-Saxon  record ;  of  the  form  of  the  peculiar  ceremonies  and 
incidents  of  a  regular  fief,  there  is  some,  but  not  much,  appearance.  But 
they  who  reflect  upon  the  dependence  in  which  free  and  even  noble  ten- 
ants held  their  estates  of  other  subjects,  and  upon  the  privileges  of  ter- 
ritorial jurisdiction,  will,  I  think,  perceive  much  of  the  intrinsic  char- 
acter of  the  feudal  relation,  though  in  a  less  mature  and  systematic 
shape  than  it  assumed  after  the  Norman  Conquest."  Hailam's  Middle 
Apes,  p.  88. 

27 


§    22  THE   FEUDAL   SYSTEM.  [PART   I. 

parcelled  out  the  lands  allotted  to  them  among  their  ad- 
herents or  vassals,  who,  in  return  therefor,  performed  services 
to  their  barons  or  lords.* 

§  21.  Feud  or  Fief. —  When  land  was  conveyed  to  the  tenant 
or  vassal  it  was  called  a  feud,  fief  or  fee.  It  was  at  first 
only  for  the  life  of  the  tenant.  Under  the  early  feudal  sys- 
tem an  estate  of  inheritance  was  unknown.  Afterwards  it 
became  customary  to  grant  a  fief  or  feud  to  a  tenant  and  his 
sons,  and  subsequently  to  him  and  his  heirs."*  For  a  long 
time  after  the  conquest  a  vassal  could  not  alien  his  land  with- 
out the  consent  of  the  lord.  It  was  a  personal  confidence  re- 
posed in  him,  and  a  full  power  of  alienation  would  have  en- 
abled him  to  let  an  enemy  of  the  lord  into  possession  of  his 
lands.  A  similar  rule  prevailed  in  respect  to  the  alienation 
of  the  manor  by  the  lord.  The  consent  of  the  tenant  had  to 
be  obtained.*  But  the  tenant,  notwithstanding,  had  a  re- 
stricted power  of  alienation,  known  as 

§  22.  Subinfeudation. —  The  tenant  could  let  out  the  land 
granted  to  him  to  sub-tenants,  who  rendered  services  to  the 
tenant,  while  the  tenant  remained  under  obligation  to  the 
lord  for  the  services  due  to  him.  There  was  then  no  such 
thing  as  absolute  alienation.  The  conveyance  always  pro- 
vided that  the  grantees  should  hold  as  tenants  of  the  grantor, 
and  render  certain  specified  sei"vices  to  the  grantor,^     But 

*  "  Homage  "  and  "  fealty,"  in  the  form  of  oaths  of  allegiance,  were 
exacted;  respectively,  from  the  lord  to  the  king,  and  from  the  tenant  to 
the  lord,  in  return  for  the  lands  allotted  them,  except  in  the  case  of 
"tenancies  at  will."  1  Pollock  &  Maitlands  Hist.  Eng.  Law  215,  277; 
Digby,  Hist.  Real  Prop.  76. 

5  IWashburn  on  Real  Prop.  40,  41,  51,  52. 

«  1  Washburn  on  Real  Prop.  51;  2  Bla.  Com.  57.  For  distinction  be- 
tween a  "  feud,"  or  "  fief  »  and  "  allodial  "  land,  or  that  which  was  held 
in  one's  own  right,  without  dependence,  or  obligation  to  render  service, 
see  2  Bl.  Com.  104;  Co.  Litt.  65;  Digby,  Hist.  Real  Prop.  1,3,  30. 

7  1  Washburn  on  Real  Prop.  53,  54;  Williams  on  Real  Prop.  3,  4. 

28 


CH.   m.]  THE   FEUDAL   SYSTEM.  §    23 

the  doctrine  of  subinfeudation  was  abolished  by  the  statute 
Quia  Emptores,  18  Edw.  I,  and  the  tenant  was  given  in- 
stead a  free  power  of  alienation.*  The  purchaser  was  by 
the  statute  substituted  in  the  place  of  the  tenant  in  respect 
to  the  services  to  be  rendered  to  the  lord.  But  this  statute, 
as  well  as  the  magna  charta,  only  prohibited  subinfeudation 
of  the  entire  feud.  In  a  grant,  therefore,  of  a  less  estate 
than  the  one  owned  by  the  tenant,  subinfeudation  may  still 
take  place.*  The  services,  which  the  tenant  was  under  ob- 
liagtion  to  render  to  the  lord,  varied  in  character  with  the 
tenure  under  which  they  held  the  land,  and  this  brings  us 
to  the  explanation  of 

§  23.  The  manor,  and  the  system  of  dividing  up  its  lands 
among  the  tenants. —  The  sections  or  parcels,  into  which  the 
land  was  divided,  were  called  manors  and  seignories.  The 
lord  reserved  such  a  portion  of  the  manor  land  as  was  neces- 
sary or  desirable  for  his  own  private  use.  The  remainder 
was  divided  into  four  parts  or  parcels.  One  part  for  the 
tenants,  from  whom  he  expected  military  service  in  defence 
of  himself  and  his  lands,  and  therefore  this  land  was  held 
under  military  tenure.  It  was  also  called  a  proper  feud,  as 
distinguished  from  improper  feuds,  which  constituted  a  sec- 
ond part  of  the  manor  lands  given  to  tenants,  who  were 
obliged  in  return  for  the  feud,  to  give  to  the  lord  a  certain 
proportion  of  the  crops,  or  to  plough  the  lord's  land.    This 

8  1  Washburn  on  Real  Prop.  54,  55. 

8  For  a  common  example  of  modern  subinfeudation,  see  post,  sect,  139, 
where  an  assignment  is  distinguished  from  a  sublease.  Until  the  statute, 
Quia  Emptores,  the  tenant  —  but  not  the  lord  —  could  "  alienate  the 
whole  or  any  part  of  the  land,  by  way  of  subinfeudation,  and  the  whole, 
though  perhaps  not  a  part  of  it,  by  way  of  substitution,"  and  by  this 
statute,  the  transferee  was  substituted  for  the  original  tenant  from 
whom  the  same  service  and  "  fealty  "  to  the  lord  was  required,  in  pro- 
portion to  the  quantity  of  land  conveyed.  1  Pollock  &,  Maitlands  Hist. 
£ng.  Law,  310,  336. 

29 


§    24  THE   FEXJDAL  SYSTEM.  [PART  I. 

was  called  socage  tenure.  A  third  part  was  given  to  the 
lord's  villeins  who  did  the  menial  services  upon  the  manor, 
and  were  a  species  of  agricultural  slave,  which  was  quite 
common  under  the  feudal  system,  and  has  existed  in  Russia 
within  the  memory  of  the  present  generation.  The  origin 
of  the  word  villein  is  very  doubtful,  some  deriving  it  from 
villa,  a  country  farm.  The  fourth  part  was  the  waste  land, 
consisting  of  woodland,  from  which  the  tenants  were  per- 
mitted to  obtain  their  estovers,  and  of  meadow  land  on  which 
they  fed  their  cattle.^"  The  villeins  possessed  only  what  were 
known  as  copyhold  estates.  The  copyhold  has  never  obtained 
in  this  country,  and  there  will  be  no  further  mention  of 
them.  The  other  tenants,  being  freemen,  were  given,  what 
were  called  freehold  estates.  The  freehold  was  at  least  an 
estate  for  the  life  of  the  tenant,  "it  being  considered,"  Mr. 
Blackstone  says,  "that  the  smallest  interest,  which  was  worthy 
of  a  freeman,  was  one  which  must  endure  during  his  life."  ^^ 
The  term  feud  is  properly  applicable  only  to  freeholds. 

§  24.  Feoffment  and  livery  of  seisin. —  The  transaction  by 
which  a  feud  was  conveyed  to  a  tenant  was  called  a  feoffment, 
and  the  operative  ceremony,  livery  or  investiture  of  seisin. 
It  will  not  be  necessary  to  describe  this  ceremony  in  the 
present  connection,  especially  since  a  detailed  account  of  it  is 
given  elsewhere."  Seisin  is  an  old  legal  term,  which  means 
possession;  but  since  the  livery  of  seisin  was  an  incident 
only  of  freehold  estates,  it  has  come  to  have  the  more  quali- 

10  1  Washburn  on  Real  Prop.  45-48;  Williama  on  Real  Prop.  48,  119. 

"  2  Bla.  Com.  237.  By  the  statute,  12  Car.  II,  c.  24  (passed  in  1660) , 
all  military  tenures  were  abolished,  in  England,  and  the  freeholder  be- 
came, practically,  the  owner  of  the  soil.  2  Bl.  Com.  76;  Digby,  Hist. 
Real  Prop.,  c.  39;  Tiffany  on  Real  Prop.  13. 

12  Those  things  to  which  possession  could  not  be  delivered,  such  as 
incorporeal  things  and  future  estates,  were  conveyed  only  by  deeds  of 
"  grant "  and,  at  common  law,  were  said  to  "  lie  in  grant "  as  distin- 
guished from  property  to  which  possession  could  be  delivered.  Shep. 
Touch.  228 ;  Co.  Litt.  9a.  See  post,  sect.  536. 
30 


CH.  iil]  the  feudal  system.  §  25 

fied  signification  of  the  possession,  which  is  given  to  a  tenant 
of  the  freehold.  The  seisin,  in  legal  contemplation,  is  the 
estate  itself;  and,  as  there  can  be  but  one  seisin  in  fee,  he 
who  has  not  the  seisin  cannot  technically  be  said  to  have  the 
estate.^^  There  are  two  kinds  of  seisins,  seisin  in  fact,  and 
seisin  in  deed  or  in  law.  Seisin  in  fact  is  inseparable  from 
actual  possession.  Seisin  in  law  is  that  seisin  or  right  to 
seisin  in  fact,  which  one  may  have,  while  not  in  actual  pos- 
session. Thus  if  A.  is  tenant  for  years,  and  B.  has  the  re- 
mainder in  fee,  A.  has  the  actual  possession,  but  no  seisin, 
since  seisin  is  not  an  incident  of  leaseholds.  But  B.  has  the 
seisin  in  law,  which,  when  coupled  with  the  subordinate  pos- 
session of  A.,  will  be  equivalent  to  the  seisin  in  fact.  But  if 
A.  is  tenant  for  life,  he  takes  the  whole  seisin  in  fact  for  the 
benefit  of  his  own  life  estate,  and  in  trust  for  B.  The  sub- 
ject will  be  more  fully  presented,  and  its  importance  ex- 
plained, in  the  chapter  on  Remainders." 

§  25.  Tenure  in  the  United  States — In  the  charters  of  the 
American  Colonies,  it  was  expressly  provided  that  the  lands 
shall  be  held  by  the  tenure  of  ''free  and  common  socage,  and 
not  in  capite  by  knight-service."  Therefore  it  may  be  said 
that,  at  an  early  day,  feudal  tenures  existed  in  this  country 
to  a  limited  extent.^^  But  at  the  present  day  there  is  little, 
if  any,  trace  of  them  remaining  in  the  American  law  of  real 

18  See  post,  sects.  494,  495. 

1*  See  post,  sects.  297  et  seq.,  and  sects.  494,  495,  496.  For  derivative 
history  of  the  word  "  seisin,"  see  2  Pollock  &  Maitlands  Hist.  Eng.  Law, 
29.  Before  the  Statute  of  Uses  (27  Hen.  VIII,  c.  10),  seisin  was  only 
held  to  refer  to  the  possession  of  a  freehold  estate,  but  after  this  statute, 
the  term  was  applied  to  all  legal  estates,  whether  in  possession  or  re- 
mainder. TifTany,  Real  Prop.  Sec.  15,  p.  32;  2  Pollock  &  Maitlands  Hist. 
Eng.  Law,  32;  Goodeve,  Real  Prop.  (3  ed.)  364;  1  Cruise's  Dig.,  c.  3, 
Sec.  34. 

IB  r  Washburn  on  Real  Prop.  63,  64;  Williams  on  Real  Prop.  6, 
Rawle's  note.  In  Chisholm  v.  Georgia,  2  Dall.  470,  Ch.  J.,  Jay  says: 
"  Every  acre  of  land  in  this  country  was  then,  prior  to  the  re>'olution, 
held  mediately  or  immediately  by  grants  from  the  crown." 

31 


§    26  THE   FEUDAL   SYSTEM.  [PART    I. 

property.  And  so  obsolete  has  the  ancient  doctrine  of 
tenures  become,  that  writers  of  eminence  unhesitatingly  pro- 
nounce the  lands  in  this  country  to  be  absolutely  allodial, 
I.  (..  free  from  the  burdens  of  tenure.'"  But  all  lands  are 
helil  subject  to  the  exercise  of  the  right  of  eminent  domain, 
the  right  to  appropriate  private  lands  to  public  uses,  and 
subject  furthermore  to  the  right  of  the  State  to  control  its 
use,  so  as  not  to  be  detrimental  to  the  public  welfare.'^ 
These  restrictions  upon  the  right  of  property  are  not  feudal 
in  their  character;  and  since  in  most  State  Constitutions  it 
is  provided,  that  in  the  exercise  of  the  right  of  eminent  do- 
main full  compensation  must  be  made  to  the  owners  of  the 
land  appropriated,  the  right  is  more  properly  one  which  the 
sovereignty  claims  in  respect  to  everything  which  affects  the 
commonwealth.  But  the  fact,  that  there  is  no  practical 
tenure  of  lands  at  present,  does  not  affect  the  position  as- 
sumed in  preceding  paragraphs.^^  The  State  has  the  right 
to  impose  burdens,  if  consistent  with  its  policy  and  the  pub- 
lic welfare,  although  it  may  not  exercise  it.  There  is,  how- 
ever, a  species  of  tenure,  still  existing  and  fully  recognized 
in  the  United  States,  between  tenants  of  particular  estates 
and  reversioners  or  remainder-men,  and  burdens  are  per- 
mitted to  be  imposed  upon  the  tenant.  Even  where  there 
are  no  special  burdens  of  tenure,  there  is  always  the  implied 
tenure  which  prevents  the  tenant  from  denying  the  title  of 
his  landlord." 

§  26.  Estates,  classes  of. —  In  the  classification  of  the 
estates,  which  may  be  created  in  lands,  four  principal  cir- 

»«Van  Rensselaer  v.  Smith,  27  Barb.  157;  Cornell  v.  Lamb,  2  Cow. 
6.52;  Coombs  v.  Jackson,  2  Wend.  155;  Van  Rensselaer  v.  Hays,  19  N. 
Y.  91;  Van  Rensselaer  r.  Dennison,  35  N.  Y.  400.     Pom.  Introduc.  272; 

3  Kent's  Com.  518. 

17  1  Washburn  on  Real  Prop.  65;  The  Commonwealth  r.  Tewksbury, 
1 1  Mete.  57 ;  The  Commonwealth  v.  Alger,  7  Cush.  92 ;  Taylor  f.  Porter, 

4  Hill  143;  The  People  v.  Salem,  20  Mich.  479. 
>*  See  ante,  sect.  19. 

«»  See  post,  sects.  05,   199.     Gray,  Perpetuities,  sects.  22,  24. 

32 


en.  iil]  the  feudal  system.  §  27 

cumstances  tend  to  determine  their  natural  subdivision : 
First,  the  quantity  or  duration  of  the  interest;  secondly,  the 
quality  of  the  interest;  thirdly,  the  time  of  enjoyment;  and 
fourthly,  the  number  of  owners.  Under  the  head  of  quan- 
tity, the  first  division  is  into  freeholds  and  estates  less  than 
freehold.  Freeholds  are  then  subdivided  into  freeholds  of 
inheritance  and  freeholds  not  of  inheritance.  A  freehold  is 
one  which  is  to  endure  for  an  uncertain  period,  which  must, 
or  at  least  might,  last  during  the  life  of  some  one,  it  may  be 
the  grantee,  grantor,  or  some  other  person.^"  Estates  less 
than  freehold,  or  leaseholds,  are  those  which  are  limited  to 
endure  for  a  certain  or  uncertain  number  of  years,  the  un- 
certainty, if  any,  being  determined  by  the  will  of  either  or 
both  parties.  And  they  are  subdivided  into  estates  for  years, 
at  will,  from  year  to  year,  and  at  sufferance.  Estates  under 
the  second  heading  are  distinguished  by  their  qualities. 
Thus  estates  may  be  either  absolute  or  determinable.  A  de- 
terminable estate  is  one  which  may  be  determined,  before  the 
natural  expiration  of  its  period  of  limitation  by  the  happen- 
ing of  some  contingency.  Determinable  estates  are  of  four 
kinds:  estate  conditional  at  common  law  or  estate  tail,  es- 
tate upon  condition,  estate  upon  limitation,  and  conditional 
limitation.  In  respect  to  their  quality,  estates  are  also 
divided  into  legal  and  equitable  estates.  A  legal  estate  is  one 
which  arises  under,  and  is  recognized  by  the  common  or 
statutory  law;  an  equitable  estate  is  the  product  of  equity 
jurisprudence,  and  is  cognizable  solely  in  courts  of  equity. 

§  27.  Same  —  Estates  in  possession  and  in  expectancy. —  In 
reference  to  the  time  of  enjoyment,  estates  are  divided  into 
two  classes:  estates  in  possession,  that  is,  those  to  which  the 
right  of  possession  is  immediate ;  and  estates  in  expectancy, 

20 "  The  word,  '  freehold,'  always  imported  the  whole  estate  of  the 
feudatory,  but  varied  as  that  varied."  Butler's  note,  to  Co.  Litt.  266b. 
It  is  now  generally  used  to  denote  an  estate  for  life,  as  distinguished 
from  an  estate  of  inheritance.     Idem. 

3  33 


§    27  THE   FEUDAL   SYSTEM.  [PAHT    I. 

which  aro  to  take  effect  in  possession  at  some  future  time. 
Estates  in  this  connection  may  also  be  divided  into  executed 
or  executory,  vested  or  contingent.  An  executed  estate  is 
one  in  which  the  right  of  possession  is  immediate.  An 
executory  estate  is  one  which  takes  effect  in  possession  at  a 
future  time.  A  vested  estate  is  one  to  which  there  is  a 
present  fixed  title,  and  concerning  whose  title  there  is  no  un- 
certainty. A  contingent  estate  is  one  to  which  there  is  only 
a  possibility  of  acquiring  a  title  at  some  future  day,  upon 
the  happening  of  some  definite  contingency.  A  vested  es- 
tate may  be  either  executed  or  executory.  Thus  an  estate  for 
life  is  a  vested  and  executed  estate,  while  a  reversion  or 
vested  remainder  is  a  vested  and  executory  estate.  An  ex- 
ecuted estate  must,  and  can  only,  be  vested.  There  cannot  be 
an  executed  contingent,  or  a  contingent  executed,  estate.  But 
an  executory  estate  may  be  either  vested  or  contingent. 
Thus  a  remainder  to  A.  after  an  executed  estate  to  B.,  is  a 
vested,  executory  estate;  while  a  remainder  to  the  heirs  of 
A.,  A.  being  still  alive,  and  therefore  his  heirs  not  yet  ascer- 
tained, is  an  executory  contingent  estate.  The  law  favors 
vested  estates  and  the  rule  is  that  estates  are  held  to  vest  at 
the  earliest  possible  period,  unless  a  contrary  intention  is 
clearly  manifested  in  the  grant.-^  And  with  reference  to  the 
vesting  of  estates,  there  is  a  recognized  distinction  between 
the  vesting  of  the  interest  and  the  vesting  of  the  possession 
in  the  person  entitled  to  the  enjoyment  of  land.  An  estate 
is  vested  in  possession,  only  when  there  is  a  right  of  present 
enjoyment;  it  is  vested  in  interest,  whenever  there  is  a  pres- 
ent fixed  right  of  future  enjoyment.^^  In  the  case  of  an 
estate  tail,  at  common  law,  transformed  into  a  life  estate  or 
fee,  by  the  various  statutes  of  the  United  States,  the  posses- 

21  Black  r.  Williams,  51  Hun  280,  21  N.  Y.  S.  263;  Hilk  v.  Barnard 
(Ma.ss.),  2.5  N.  E.  Rep.  96.  9  L.  R.  A.  211;  Chew  v.  Keller,  100  Mo. 
362,  1.3  R.  W.  Rep.  .39.5;  Tindall  v.  Tindall.  167  Mo.  218,  66  S.  W. 
Rep.  1092. 

22  Gates  r.  Sejbert,  157  Mo.  2.54.  57  R.  W.  Rep.  1065. 

34 


CH.    m.]  THE    FEUDAL    SYSTEM.  §    28 

gion  could  not  vest  until  the  death  of  the  life  tenant,  but 
the  remainder-man  would  be  held  to  have  an  estate  vested 
in  interest,  although  the  possession  would  not  vest  until  the 
death  of  the  life  tenant.^' 

§  28.  Same  —  Joint  Euid  Several  estates. —  In  the  fourth 
classification,  estates  are  considered  in  respect  to  the  number 
of  persons  in  whom  the  right  of  property  is  vested :  and  from 
that  standpoint  they  are  divided  into  two  classes;  estates  in 
severalty,  or  those  owned  by  one  person,  and  joint  estates, 
which  are  vested  in  two  or  more  persons.  According  to  the 
peculiar  rights  which  the  individual  co-tenants  of  joint  es- 
tates have  in  them,  they  are  subdivided  into  five  classes: 
joint  tenancy,-*  tenancy  in  common,  tenancy  in  coparcenary, 
tenancy  by  the  entirety,  and  estates  in  partnership.  Keep- 
ing these  elements  in  mind  we  deduce  the  following  table  of 
estates. 

23  utter  V.  Sidman,  170  Mo.  284,  70  S.  W.  Rep.  702. 

24  The  right  of  survivorship,  in  estates  held  in  joint  tenancy,  only  ter- 
minates with  the  entire  estate  in  the  survivor,  where  the  original  joint 
tenants  retain  their  estate,  at  the  time  of  the  death  of  one  of  them. 
Messing  v.  Messing,  71  N.  Y.  S.  717,  64  App.  Div.  125;  Norris  f.  Hall 
(Mich.  1900),  82  N.  W.  Rep.  832. 

35 


28 


THE   FEUDAL   SYSTEM. 


[part  I. 


TABLE  OF  ESTATES. 


FREE- 
HOLDS. 


Estates  of   Inheritance. 


IE 


Estate  in  fee  simple. 
Estates  Tail. 


Estates  less  than 
inheritance. 


Conventional 
Life  Estates. 


Legal  Life 
Estates. 


Estates  less  than  Freehold  or  Leaseholds. 


Estate    for  one's  own  life. 
Estate  for  the  life  of  another. 
Estate    for  an   uncertain   period 

which   may  last  during   life. 
Estate    tail    after    possibility    of 

issue   exinct. 

Estate   during   coverture. 

Curtesy. 

Power. 

Homestead. 

Estate  for  jrears. 

Estate  at   will. 

Estate  from  year  to  year. 

Estate  at  sufferance. 


Estates  in   Severalty. 


Joint    Estates. 


Joint  tenancy. 
Tenancy    in    common. 
Tenancy   in    coparcenary. 
Tenancy   in   entirety. 
Tenancy  in   partnership. 


Absolute    Estates. 


Determinable    Estates. 


Fee  conditional. 
Estate    upon    limitation. 
Conditional    limitation. 
Estate   upon    condition. 
Mortgages. 


Estates  in   Possession. 


Estates   in    Expectancy. 


Reversion. 
Remainders. 
Contingent    uses. 
Springing   uses. 
Shifting  uses. 
Executory    devises. 


Legal    Estates. 


Equitable  Estates. 


Uses. 

Trusts. 

Mortgage    by    deposit    of    title 

deeds. 
Vendor's   and   Vendee's   lien. 


36 


CHAPTER  IV. 

ESTATE  IN  FEE  SIMPLE. 

Section  29.  Definition. 

30.  Words  of  limitation. 

31.  Statutes  abolishing  words  of  limitation. 

32.  The  power  of  disposition. 

33.  An  absolute  power  of  disposition  an  incident  of  a  fee. 

34.  Attempted  limitation  after,  void. 

35.  Liability  for  debts. 

§  29.  Definition. —  A  fee  simple  is  a  freehold  estate  of  in- 
heritance, free  from  conditions  and  of  indefinite  duration.^ 
It  is  the  highest  estate  known  to  the  law,  and  is  absolute,  so 
far  as  it  is  possible  for  one  to  possess  an  absolute  right  of 
property  in  lands.^  The  word  fee  without  any  qualifying' 
adjective  implies  an  unlimited  estate  of  inheritance.  Such 
is  also  the  case  with  the  term  "fee  simple  absolute."  The 
three  terms  "fee,"  "fee  simple,"  and  "fee  simple  absolute," 
may  be  used  interchangeably;^  the  adjectives  in  the  last  two 
are  surplusage,  and  are  generally  used  for  the  purpose  of 
distinguishing  that  class  of  estates  from  those  which  are 
called  base  or  qualified  fees. 

§  30.  Words  of  Limitation.— The  word  "  heirs  "  at  com- 
mon law  is  required  to  be  used  in  limiting  a  fee  simple,  where 
the  estate  is  acquired  by  conveyance  inter  vivos.  And  no 
equivalent  words,  which  indicate  the  intention  of  the  grantor 
to  convey  an  absolute  right  to  the  property,  will  suffice. 
If  the  conveyance  be  not  made  to  one  and  his  heirs,  the 

iCo.  Lit.  1  a.  n.;  2  Bla.  Com.  106;  1  Washburn  on  Real  Prop.  7(5. 
2  2  Bla.  Com.  106;  Co.  Lit.  1  b.;   1  Prest.  Est.  420;   1  Washburn  on 
Real  Prop.  76,  77. 

37 


§    30  ESTATE  IN  FEE  SIMPLE.  [PART   I. 

prantee  will  take  only  an  estate  for  his  life,  notwithstanding 
the  estate  is  limited  by  such  phrases,  as  "to  A.  forever,"  or 
"to  A.  and  his  successors,"  or  to  his  children^  or  issue  or 
assigns,  and  the  like.  An  express  direction  that  the  grantee 
is  to  have  a  fee  simple  estate,  will  not  supply  the  place  of 
the  word  "  heirs."*  On  the  other  hand  where  the  deed  in- 
dorsed on  another  deed  conveyed  all  the  grantor's  "right, 
title,  claim,  interest,  property,  etc.,  in  and  to  the  within 
deed,"  it  was  held  that  the  words  of  limitation  in  the  within 
deed  was  by  reference  made  a  part  of  the  indorsed  deed  of 
conveyance,  and  passed  a  fee  simple  estate  to  the  grantee,' 
And,  although  ordinarily  the  covenant  of  title  to  the  grantee 
and  his  heirs  cannot  enlarge  a  life  estate  into  a  fee,  if  the 
estate  is  not  specially  limited  in  the  premises  or  habendum 
of  the  deed,  such  a  covenant  would  have  the  effect,  by 
estoppel,  of  granting  a  fee  simple  estate,  the  word  "heirs" 
having  been  used  in  the  covenant.*'  If  it  be  shown  from  the 
context  of  the  deed,  or  otherwise,  that  the  grantor  intended 
to  convey  a  fee  simple  estate,  the  proper  words  may  be  added 
to  the  deed  by  a  decree  of  the  court  in  an  action  for  the  re- 
fonnation  of  the  deed.'  If  the  estate  be  acquired  by  devise 
or  by  legislative  grant,  the  technical  word  "heirs"  is  not 
necessary.  The  intention  to  create  a  fee  simple  estate  may  in 
such  cases  be  manifested  by  any  other  words  or  forms  of 
expression."    On  the  other  hand,  if  the  word  "heirs"  ap- 

3  But  see  Mauzy  v.  Mau^,  79  Va.  537. 

*  Co.  Lit.  8  b.;  4  Kent's  Com.  6,  note;  Adams  v.  Ross,  30  N.  J.  L.  511 
Clearwater  v.  Rose,  1  Blackf.   137;  Wilder  v.  Wheeler,  60  N.  H.  351 
Ford  r.  Johnson,  41  Ohio  St.  366;  Mattock  v.  Brown,  103  Pa.  St.   16. 
lyjrick  f.  McCreery,  20  S.  C.  424;  Truesdell  v.  Lehman,  47  N.  J.  Eq. 
218;   Oj-ster   r.   Knull,    137   Pa.   St.  448. 

5  Lemon  r.  Graham,  131  Pa.  St.  447;  25  W.  N.  C.  3391;  see  post,  §  605. 

«  Winborne  r.  Downinp.  105  N.  C.  20;  see  post,  §  612. 
Vickers  r.  Leigh,  104  N.  C.  248. 

"Rutherford  v.  Greene,  2  Wheat.  196;  Jackson  v.  Housell,  17  Johns. 
281;  Godfrey  f.  Humphrey,  18  Pick.  537;  2  Bla.  Com.  108;   1  Washburn 
on  Real  Prop.  85.     See  Long  v.  Paul,   127  Pa.  St.  456;  Doe  v.  Patten, 
38 


CII.    IV.]  ESTATE  IN  FEE  SIMPLE.  §    30 

pears  from  the  context  of  the  will  to  have  been  used  by  the 
testator  as  a  word  of  purchase,  it  will  be  given  that  construc- 
tion, and  the  devisee  will  take  only  a  life  estate,  while  his 
heirs  will  take  a  contingent  remainder,  notwithstanding  that 
ordinarily  the  rule  in  Shelley's  Case  would  make  it  a  fee 
simple  estate  in  the  first  devisee."  And  if  the  conveyance 
be  to  a  corporation  the  word  "successors"  takes  the  place  of 
heirs,  since  a  corporation  cannot  have  heirs.^°  All  technical 
quit-claim  deeds  pass  whatever  interest  the  grantor  has,  with- 
out words  of  limitation,  as  in  the  case  of  a  release  from  one 
joint  tenant  to  another,  or  by  a  disseisee  to  the  disseisor. ^^ 
But  a  partition  between  tenants  in  common  by  mutual  grants^ 
or  by  release  would  require  the  words  of  limitation.  So  would 
the  release  of  a  reversion  to  the  tenant  for  life.^-  But  where 
there  is  a  trust  imposed  upon  the  grantee  or  devisee,  a  fee 
will  be  implied,  if  the  trust  cannot  be  supported  or  per- 
formed without  a  fee.^''     And  if  by  devise    ■   2harge  is  im- 

(Del.),   16   Atl.   Rep.   558;    Nolan  r.   Chambers,   84  Ky.   576;    Craig  V. 
Ambrose,  80  Ga.   134;  House  v.  Barber,  29  S.  C.  466. 

9  Urich's  Appeal,  86  Pa.  St.  386,  27  Am.  Rep.  707 ;  Howell  V.  Acker- 
man  (Ky.),  11  S.  W.  Rep.  8-19.  See  Fountain  Co.,  etc.,  Co.  v.  Bucklc- 
heimer,  102  Ind.  76,  52  Am.  Rep.  645. 

10  City  of  Wilkesbarre  r.  Wyoming,  etc.,  Soc.  (Pa.),  134  Pa.  St.  616; 
26  W.  N.  C.  297;  Dilworth  r.  Gusky,  131  Pa.  St.  343;  Schult  V.  Moll 
(N.  Y.),  10  N.  Y.  S.  Rep.  703;  Pierce  v.  Simmons  (R.  1.),  19  All. 
Rep.  242;  Robbins  Ex'r  V.  Robbins  (Ky.),  9  S.  W.  Rep.  254;  Wood 
r.  Robertson,  113  Ind.  323;  Asheville  Division  v.  Aston,  92  N.  C.  578, 
The  word  "  heirs "  at  common  law,  was  never  required  in  grants  to 
corporations.  An  aggregate  corporation  had  perpetual  succession,  and 
no  words  of  limitation  were  necessary  and  in  a  corporation  sole,  since 
it  had  no  "  heirs,"  the  word  successors,  was  generally  used.  2  Bl.  Com. 
109;  4  Kent's  Com.  7;  Wilcox  v.  Wheeler,  47  N.  H.  488;  Wilkesbarre  v. 
Historical  Soc,  134  Pa.  St.  616;  Overseers  f.  Sears,  22  Pick.  (Mass.) 
126:  Tiffany,  Real  Prop.  Sec.  20.  Cong.  Soc.  r.  Stark,  34  Vt.  243;  Nicoll 
V.  N.  Y.  &  Erie  R.  R.,  12  N.  Y.  400. 

"  Washburn  on  Real  Prop.  54.  See  post,  Sec.  177.  The  rule  is  the 
same  in  a  release  by  the  tenant  for  life  to  the  reversioner.  2  Prest. 
Est.  58. 

12  2  Prest.  Est.  56-62,     See  post.  Sec.  172, 

"White  r.  W'oodbury,  9   Pick.    136;    Sears  v.   Russell,  8  Gray   89; 

39 


5   31  ESTATE  IN  PEE  SIMPLE.  [PART   T. 

pt)sed  upou  the  devisee  to  pay  a  certain  sura  of  money,  a  fee 
will  be  implied,  without  the  use  of  any  words  of  limitation 
whatever.  But  this  is  only  permissible  where  the  estate  of 
the  devisee  is  not  expressly  limited  otherwise,^*  or  where 
there  is  not  sufficient  personal  estate  under  the  control  of  the 
devisee  to  cover  the  expense  of  performing  the  charge '''  and 
when  the  charge  is  an  absolute  personal  liability  of  the  dev- 
isee. If  the  money  is  directed  to  be  paid  out  of  the  rents 
and  profits  of  the  estate,  and  the  devisee  assumes  no  per- 
sonal liability,  in  case  of  the  failure  of  the  rents  and  profits, 
he  will  take  only  a  life  estate,  if  there  is  nothing  else  in  the 
will  indicating  the  intention  that  he  shall  have  a  fee.^" 

§  31.  Statutes  abolishing  words  of  limitation. —  The  forego- 
ing is  a  rather  full  statement  of  the  requirements  of  the 
common  law  in  respect  to  the  employment  of  words  of 
limitation  in  the  conveyance  of  a  fee  simple.  But  in  Eng- 
land and  in  most  of  the  States  of  this  country,  the  rule  has 
been  changed,  so  that  in  a  devise  of  real  property  the  in- 
tention to  convey  a  fee  simple  will  be  presumed,  in  the  ab- 
sence of  an  express  intention  to  the   contrary.^^     In  these 

Gould  r.  Lamb,  11  Mete.  84;  Fisher  v.  Fields,  10  Johns.  505;  Koenig's 
Appeal,  57  Pa.  St.  252;  Angell  v.  Rosenbury,  12  Mich.  266.  See  post, 
Sec.  370. 

"Couch  V.  Eastham,  29  W.  Va.  784;  Hinkle's  Appeal,  116  Pa.  St. 
490;  Gankler  i\  Moran,  66  Mich.  353. 

"Curtis  r.  Fowler  (Mich.),  33  N.  W.  Rep.  804. 

"  Doe  V.  Richards,  3  T.  R.  356 ;  Godfrey  v.  Humphrey,  18  Pick.  537 ; 
Wait  f.  Belding,  24  Pick.  138 ;  Jackson  v.  Bull,  10  Johns.  148. 

17  Such  is  the  law   in  Alabama,  Arkansas,   Georgia,   Iowa,   Illinois, 
Kentucky,   Maryland,   Massachusetts,    Mississippi,    Missouri,   Nebraska, 
New  Hampshire,  New  York,  New  Jersey,  North  Carolina,  South  Caro- 
lina, Texas,  Virginia ;  1  Washburn  on  Real  Prop.  52,  note  3,  86,  note  3 
Williams  on  Real  Prop.  20,  1;  Traphagen  v.  Levy,  45  N.  J.  Eq.  448 
Doe  V.  Patten  (Del.),  16  Atl.  Rep.  558;  Grain  V.  Wright,  114  N.  Y.  307 
Little  V.  Giles,  25  Neb.  313;  Barnes  V.  Boardman,  149  Mass.  106;  Smith 
V.  Greer,  88  Ala.  414;  Cook  v.  Couch,  100  Mo.  29;  Moffat  V.  Cook,  150 
Mass.  529;  Teaney  v.  Mains   (Iowa  1901),  84  N.  W.  Rep.  953;  Kron  v. 
Kron  (1902),  195  111.  181,  62  N.  E.  Rep.  809;  Chamberlain  v.  Runkle 
40 


CH.    IV.]  ESTATE  IN  FEE  SIMPLE.  §    32 

States,  a  devise  to  A.  would  now  give  him  a  fee,  while  for- 
merly he  would  only  have  taken  a  life  estate.  But  if  the 
testator  shows  in  any  part  of  the  will  an  intention  to  give 
only  a  life  estate,  the  general  devise  of  the  estate  will  be  con- 
strued only  to  pass  the  life  estate.^*  This  abrogation  of  the 
common-law  rule  has  also  in  some  of  the  States  been  extended 
to  conveyances  inter  vivos. ^^  The  rule  had  in  the  course  of 
time  become  purely  arbitrary,  the  reasons  for  the  same  hav- 
ing long  since  passed  away  with  the  advancement  of  civili- 
zation. 

§  32.  The  power  of  disposition. —  Originally  the  greatest 
estate  granted  to  a  tenant  was  an  estate  for  life,  and  when, 
afterwards,  lands  were  granted  to  one  and  his  heirs  forever, 
the  heirs  were  deemed  to  be  co-equal  grantees,  or  donees,  with 
the  first  taker.  In  consequence,  the  power  of  alienation 
was  not  given  to  the  owner  of  such  an  estate.  Subsequently, 
he  was  allowed  to  convey  it,  with  the  consent  of  the  lord  and 
the  presumptive  heir.^"  Then,  in  the  time  of  Henry  I  and 
II,  the  right  was  given  to  defeat  the  inheritance  of  all  the 
heirs,  except  the  oldest  son.^^  The  statute  Quia  Emptores 
refers  only  to  alienations  inter  vivos  and  for  a  long  period 
in  the  history  of  the  common  law,  it  was  impossible  to  make 

(Ind.  1902),  63  N.  E.  Rep.  486;  Ball  v.  Woolfolk,  175  Mo.  378,  75  S. 
W.  Rep.  410;  Flanary  v.  Kane  (Va.  1904),  46  S.  E.  Rep.  681;  Shirley 
r.  Clark  (Ark.  1904),  81  S.  W.  Rep.  1057. 

isTillett  V.  Aydlett,  93  N.  C.  15;  Leeper  v.  Neagle,  94  N.  C.  338; 
Corby  v.  Corby,  85  Mo.  371;  Williams  V.  McKinney,  34  Kan.  514; 
Lowrie  v.  Ryland,  65  Iowa,  584 ;  Dew  v.  Kuehn,  64  Wis.  293. 

10  Such  is  the  case  in  Alabama,  Arkansas,  Georgia,  Illinois,  Iowa, 
Kentucky,  Mississippi,  Missouri,  Nebraska,  New  Hampshire,  New  York, 
Maryland,  Tennessee,  Virginia, Texas;  1  Washburn  on  Real  Prop.  52,  note 
3;  2  Greenl.  Cruise,  354;  Williams  on  Real  Prop.  19,  note  1.  See 
Jarvis  v.  Davis  (N.  C),  5  S.  E.  Rep.  227;  Warner  v.  Willard,  54  Conn. 
470  Tr.;  Utter  v.  Sidman,  170  Mo.  284,  70  S.  W.  Rep.  702;  Bain  v. 
Staab,  65  Pac,  Rep.  177. 

20  1  Washburn  on  Real  Prop.  78,  79 ;  Maine,  Anc.  Law  230. 

21  1  Washburn  on  Real  Prop.  79. 

41 


§    33  ESTATE  IN  PEE  SIMPLE.  [PART   I. 

a  disposition  of  a  freehold,  by  will.  But  in  the  thirty-second 
year  of  the  reign  of  Henry  VIII,  a  statute  was  passed,  which 
permitted  a  devise  of  real  estate.  The  power  of  devising 
lands  by  will  was  enjoyed  in  time  of  the  Saxons,  but  was 
abolished  by  the  Norman  feudal  system,  except  in  certain 
favored  localities,  which  were  exempt  from  the  burdens  and 
restrictions  of  that  system.^*  To  what  extent  the  power  of 
alienation  may  now  be  restricted,  in  fee  simple  estates,  will 
be  shown  in  the  subsequent  chapter  on  estates  upon  con- 
dition, but  since  the  statute  Quia  Emptores,  in  alienations 
inter  vivos,  as  well  as  in  devises  — 

§  33.  An  absolute  power  of  disposition  is  an  incident  of  a 
fee. —  In  the  leading  case  of  Jackson  v.  Robbins,-^  the  effect 
of  an  absolute  power  of  disposition,  in  the  devisee,  was  con- 
sidered and  it  was  said:  "  We  may  lay  it  down  as  an  in- 
controvertible rule  that  when  an  estate  is  given  to  a  person 
generally  or  indefinitely,  with  a  power  of  disposition,  it  car- 
ries a  fee,  and  the  only  exception  to  the  rule  is  that  when 
the  testator  gives  to  the  first  taker  an  estate  for  life  o)ily,  by 
certain  and  express  words,  and  annexes  to  it  a  power  of  dis- 
posal, in  that  particular  and  special  case,  the  devisee  for  life 
will  not  take  an  estate  in  fee,  notwithstanding  the  distinct 
and  naked  gift  of  a  power  of  disposition  of  the  reversion. 
This  distinction  is  carefully  marked  and  settled  in  the  cases." 
The  Court,  in  the  above  case,  was  considering  the  effect  of  a 
general  power  of  disposition  in  connection  with  the  construc- 
tion of  a  devise.  Before  the  various  statutes  abolishing  the 
necessity  for  words  of  inheritance,  in  the  creation  of  a  fee,  in 
conveyances,  no  such  formality  was  required  in  wills,  and 
since  the  enactment  of  statutes  upon  this  subject,  in  the 
various  States,  a  general  power  of  disposition  is  held,  very 
generally,  to  be  incidental  to  a  fee-simple  estate.^* 

22  See.  Chapter,  Title  by  Devise. 

23  16  Johns.  288. 

24  Green  r.  Sutton,  50  Mo.  186,  a  leading  case,  citing  Jackson  r.  Eob- 

42 


CH,    IV.]  ESTATE  IN  PEE  SIMPLE.  §    34 

§  34.  Attempted  limitation  after  void. —  A  fee  simple  estate 
includes  the  whole  interest  and  property  in  a  tract  of  land 
and  after  the  grant  of  a  fee,  since  the  grantor  would  retain 
no  interest  in  the  land  conveyed,  any  subsequent  limitation 
would  be  held  to  be  inconsistent  with  the  estate  granted  and 
would  be  void.  For  instance,  after  the  grant  of  a  tract  of 
land  to  the  grantee,  "his  heirs  and  assigns,"  a  provision  that 
the  land  should  be  exempt  from  debts  created  by  the  grantee, 
where  he  was  given  an  absolute  power  of  disposition,  was 
held  to  be  incompatible  with  the  grant  of  the  fee  simple  es- 
tate and  void."  And  so  would  be  a  provision,  after  the 
grant  of  a  fee,  that  if  the  grantee  should  die  without  issue, 
"then  said  lands,  or  the  proceeds  should  revert  to  the  grantor, 
or  his  heirs. ' '  ^®  But  where  the  grant  does  not  create  or  con- 
bins,  supra;  English  t\  Beehle  (32  Mo.  186)  ;  Fanning  v.  Doan  ( 128  Mo. 
.323),  where  the  power  of  disposal  was  presumed  from  the  use  of  the 
word  "assigns";  Johnson  r.  Morton  (Texas),  67  S.  W.  Rep.  790;  Ray 
V.  Spears  (Ky.),  64  S.  W.  Rep.  413.  In  Cornwall  v.  Wulff  (148  Mo. 
542),  counsel  contended  that  this  doctrine  rested  alone  upon  the  great 
name  of  Kent,  but  the  court,  per  Gantt,  C.  J.,  observed:  "If  so,  it 
has  no  ignoble  origin,  but  this  is  not  true,  though  his  recognition  of  the 
rule  has  no  doubt  added  to  its  stability."  Van  Home  v.  Campbell,  100 
N.  Y.  287;  4  Kent's  Com.  (12  ed.)  star  p.  270.  But  see,  Walton  v. 
Drumtra,  152  Mo.  489;  1  Prest.  Est.  477;  Bradley  v.  Peixoto,  3  Ves. 
jr.  324;  Blackstone  Bank  v.  Davis,  21  Pick.  42;  McWilliams  v.  Nisley, 
2  Serg.  &  R.  507;  Stewart  v.  Brady,  3  Bush,  623;  Greene  v.  Greene,  125 
N.  Y.  506;  Potter  V.  Couch,  141  U.  S.  296.  The  power  to  "sell  and 
convey  "  in  the  absence  of  limitation,  grants  a  fee-simple  estate.  St. 
Louis  Land  Ass'n  v.  Fueller,  182  Mo.  93;  81  S.  W.  Rep.  414.  See,  also, 
Carr  v.  Field  (Ky,  1904),  80  S.  W.  Rep.  448;  Ball  v.  Woolfolk,  175  Mo. 
378,  75  S.  W.  Rep.  410. 

25  Ricks  f.  Pope,  129  N.  C.  52,  39  S.  E.  Rep.  638;  Ray  v.  Spears  (Ky. 
1901),  65  S.  VV.  Rep.  867;  Green  v.  Sutton  (a  leading  case),  50  Mo. 
186;  Stewart  r.  Stewart,  186  111.  60;  57  N.  E.  Rep.  885;  White  v. 
Dedman  (Tex.  1900),  57  S.  W.  Rep.  870;  McMichel  v.  McMichel,  51  S. 
C.  555;  Martin  r.  Jones,  62  Ohio  St.  519,  57  N.  E.  Rep.  238. 

26  Ray  V.  Spears,  64  S.  W.  Rep.  413,  65  id.  867.  See,  also,  Kron 
V.  Kron,  195  111.  181;  62  N.  E.  Rep.  809;  Brien  v.  Robinson,  102  Tenn. 
157,  52  S.  W.  Rep.  802;  Printup  v.  Hill  (Ga.  1901),  107  Fed.  Kep. 
789. 

43 


§   35  ESTATE  IN  FEE  SIMPLE.  [PART  I. 

vey  an  absolute  estate  in  the  premises,  but  only  a  user,  or 
right  to  the  possession  for  particular  purposes,  since  the  fee 
simple  estate  would  not  be  conveyed  by  such  an  instrument, 
a  subsequent  limitation  would  not  be  inconsistent  with  the 
grant  and  would  be  upheld.^^ 

§  36.  Liability  for  debts. —  This  was  not  originally  an  inci- 
dent of  freehold  estates.  They  were  first  made  liable  to  exe- 
cution for  the  debts  of  the  owner  during  his  lifetime  by  the 
statute  13  Edw.  I,  eh.  18.  But  there  was  no  provision  in  the 
English  law,  until  Stat.  3  and  4,  Will.  IV,  ch.  104,  for  sub- 
jecting the  estates  of  decedents  to  the  satisfaction  of  all  the 
debts  of  the  ancestor.  In  this  country  lands  are  generally 
liable  for  the  debts  of  the  owner,  in  all  forms  of  actions,  be- 
fore and  after  his  death,  and  in  the  hands  of  his  heirs  and 
devisees.^* 

27Tupper  r.  Ford,  73  Vt.  85,  50  Atl.  Rep.  547;  Blain  v.  Staab  (N.  M. 
1901).  65  Pac.  Rep.  177. 

28  1  Greenl.  Cruise,  60,  n. ;  Watkins  v.  Holman,  14  Pet.  63 ;  Wyman  v. 
Briglen,  4  Mass.  150;  see  post,  Sec.  529;  Bellas  v.  McCarthy,  10  Watts 
31;  4  Kent's  Com.  420;  Williams  on  Real  Prop.  81,  Rawle's  note.  For 
enforcement  of  creditor's  rights,  in  equity,  against  land,  see,  3  Pom.  Eq. 
Jur.  Sees.  1413,  1415. 

44 


CHAPTER  V. 

ESTATES  TAIL. 

Section     36.  Base  or  qualified  fees. 

37.  Fee  conditional  at  common  law. 

38.  Estates   tail. 

39.  Necessary  words   of  limitation. 

40.  Estates  tail  created  by  implication. 

41.  Classes  of  estates  tail. 

42.  How  estates  tail  may  be  barred. 

43.  Merger  of  an  estate  tail. 

44.  Estate  tail  after  possibility  of  issue  extinct. 

45.  Estates  tail  in  the  United  States. 

§  36.  Base  or  qualified  fees. —  Whenever  a  fee  is  so  qualified, 
as  to  be  made  to  determine,  or  liable  to  be  defeated,  at  the 
happening  of  some  contingent  event  or  act,  the  fee  is  said 
to  be"  base,  qualified,  or  determinable.  There  are  four  classes 
of  such  fees,  viz:  fee  upon  condition,  fee  upon  limitation,  a 
conditional  limitation,  and  a  fee  conditional  at  common  law. 
Some  authors  apply  the  term  base  fee  solely  to  the  last  class ; 
but  for  all  practical  purposes,  either  of  the  above  names  may 
be  applied  to  either  or  all.^  The  first  three  classes  will  be 
treated  at  length  in  the  chapter  on  estates  upon  condition.^ 

§  37.  Fee  conditional  at  common  law. —  At  an  early  day,  as 
far  back  as  the  time  of  Alfred,  it  was  the  custom  to  limit 
estates  to  one  and  particular  heirs,  instead  of  his  heirs  in 
general.     Generally,  it  was  to  the  heirs  of  his  body, — i.  e.,  his 

1  1  Washburn  on  Real  Prop.  88-91;  2  Bla.  Com.  109;  1  Prest.  Est.  406- 
475;  Seymour's  Case,  10  Rep.  97;  1  Spence  Eq.  Jur.  144;  Co.  Litt.  199; 
Digby  Hist.  Real  Prop.  161.  A  base  or  qualified  fee  is  not  void,  in 
North  Carolina.     Keith  v.  Scales,  32  S.  E.  Rep.  809. 

2  See  Chapter,  Estates  upon  condition. 

45 


§    38  ESTATES   TAIL.  [PART   I. 

issue,  his  lineal  heirs.  But  it  can  be  limited  to  any  other 
class  of  heirs.  If  the  first  taker  died  leaving  no  heir  of  that 
kind,  the  estate  was  defeated  and  reverted  to  the  donor.  But 
as  soon  as  that  class  of  heirs  came  into  being,  as,  in  the  case 
of  an  estate  to  one  and  the  heirs  of  his  body,  upon  the  birth 
of  a  child,  the  condition  was  held  to  be  so  far  performed  as  to 
permit  the  tenant  to  alien  or  charge  the  land  in  fee  simple. 
And  the  subsequent  death  of  the  issue  would'  have  no  effect 
upon  the  purchaser's  title.^  But,  if  no  alienation  was  made 
during  the  life  of  such  heirs  presumptive  it  would  revert  to 
the  donor  upon  the  death  of  the  tenant,  just  as  if  they  had 
never  come  into  being.* 

§  38.  Estates  tail. —  In  consequence  of  the  readiness  with 
which  fees  conditional  could  be  converted  into  a  fee  simple, 
great  dissatisfaction  was  felt  and  manifested  by  the  nobles 
and  landed  gentry.  It  had  been  their  custom  to  settle  their 
great  estates  upon  their  oldest  sons  and  their  issue,  in  order 
to  keep  them  within  their  families,  and  prevent  their  sub- 
division into  smaller  estates.  When  fees  conditional  -^vere 
made  by  judicial  legislation  capable  of  alienation  upon  the 
birth  of  issue,  the  protection  to  their  entails  was  taken  away, 
and  the  barons  applied  to  King  Edward  I  to  grant  them  a 
remedy.  In  compliance  with  this  appeal,  the  statute  "De 
Donis  Conditionalibus "  was  passed  in  the  thirteenth  year  of 

3  2  Bla.  Com.  Ill;  2  Inst.  333;  Co.  Lit.  19  a,  note  110;  1  Spence  Eq. 
Jur.  21,  141;  Buekworth  v.  Thirkell,  3  B.  &  P.  652;  Williams  on  Real 
Prop.  42;  Nevil's  Case,  7  Coke,  34  b. 

♦  2  Inst.  332;  1  Spence  Eq.  Jur.  141;  Williams  on  Real  Prop.  42,  43. 
A  conditional  fee,  in  South  Carolina,  is  created  by  a  deed  to  the  grantee 
"  during  his  life  and  after  his  death  to  the  lawfully  begotten  issue  of 
his  body  and  should  he  die  without  such  issue,  then  said  lands  to  revert 
to  my  children."  Holman  f.  Wesner  (1903),  67  S.  C.  307;  45  S.  E. 
Rep.  206.  See,  also,  Mattison  v.  Mattison,  65  S.  C.  345,  43  S.  E.  Rep. 
874;  Shealy  v.  Wammock,  115  Ga.  913,  42  S.  E.  Rep.  239;  Methodist 
Church  V.  Young,  130  N.  C.  8,  40  S.  E.  Rep.  691 ;  Davis  r.  Hollingsworth, 
113  Ga.  210,  38  S.  E.  Rep.  827;  Calmes  v.  Jones  (Ky.),  63  S.  W.  Rep. 
583. 

46 


CH.    v.]  ESTATES   TAIL.  §    39 

the  reign  of  Edward  I.  By  this  statute  fees  conditional, 
which  were  limited  to  the  heirs  of  one's  body,  were  made 
inalienable  under  any  circumstances.  It  was  held  that  the 
heirs  do  not  take  as  purchasers,  but  as  special  heir ;  neverthe- 
less, the  ancestor  could  not  by  any  act  of  alienation  defeat 
their  interest  in  the  estate.'^  The  fee  conditional  was  then 
called  estate  tail.  Estates  tail,  therefore,  to  quote  Mr.  Wash- 
burn's definition,  "are  estates  of  inheritance,  which,  instead 
of  descending  to  heirs  generally,  go  to  the  heirs  of  the  donee's 
body,  which  means  his  lawful  issue,  his  children,  and  through 
them  to  his  grandchildren,  in  a  direct  line,  so  long  as  his 
posterity  endures  in  a  regular  order  and  course  of  descent, 
and  upon  the  death  of  the  first  owner  without  issue,  the 
estate  determines. ' '  ®  The  tenants  in  tail  cannot  alien  the 
estate,  but  it  has  all  the  other  characteristics  of  a  fee  simple. 
The  tenant  can  freely  commit  waste;  nor  is  he  under  any 
obligation  to  the  reversioner  to  pay  off  an  incumbrance  or 
keep  down  the  interest  on  it.^ 

§  39.  Necessary  words  of  limitation. —  In  the  creation  of  an 
estate  tail  words  of  limitation  must  be  used,  which  indicate 
clearly  what  heirs  are  to  take.  The  usual  form  of  limitation 
is  to  one  and  the  heirs  of  his  body.     But  any  other  equivalent 

5  2  Piest.  Est.  378-380;  2  Bla.  Com.  112-116;  2  Inst.  332,  333;  1 
Washburn  on  Real   Prop.  94,  95. 

0  1  Washburn  on  Real  Prop.  99;  2  Prest.  Est.  360;  Williams  on  Real 
Prop.  43,  44. 

7  Co.  Lit.  224  a;  2  Bla.  115;  Liford's  Case,  11  Rep.  .50;  Jervis  V. 
Benton,  2  Vern.  251;  Chaplin  v.  Chaplin,  3  P.  Wms.  229.  But  a  receiver 
may  be  appointed  to  collect  the  rents  and  profits  of  an  estate  tail  to 
keep  down  the  interest  on  incumbrances.  Story's  Eq.  Jur.,  Sec.  835; 
Bertie  v.  Abingdon,  3  Merw.  560.  Dower  and  curtesy  are  incidents  of 
estates  tail.  1  Washburn  on  Real  Prop.  107;  Co.  Lit.  224  a;  post,  Sees. 
78,  86.  Tenant  in  tail  cannot  charge  the  inheritance  with  his  debts  and 
obligations  after  his  death.  Liford's  Case,  11  Rep.  50;  Wharton  t;. 
Wharton,  2  Vern.  3;  Partridge  v.  Dorsey,  3  Har.  &  J.  302;  1  Cruise 
I>ig.  84;  Williams  on  Real  Prop.  57,  58.  But  his  interest  in  the  same, 
viz.,  his  life  estate  may  be  sold  for  the  satisfaction  of  his  debts.  1 
Washburn  on  Real  Prop.  107;  Williams  on  Real  Prop.  58,  59. 

47 


§    39  ESTATES   TAIIi.  [PART   I. 

expressions  would  be  sufficient,  provided  the  word  "heirs" 
was  not  omitted.*  The  same  distinction  as  to  construction  be- 
tween estates  created  by  deed  and  by  will,  mentioned  in  con- 
nection with  fees  simple,  applies  here.  So  that  in  the  case 
of  a  devise,  an  estate  will  be  held  to  be  one  in  tail,  whatever 
may  be  the  words  of  limitation  used.  Thus  a  devise  to  A. 
and  his  seed,  or  his  issue,  or  his  heirs  male,  etc.,  all  showing 
an  intention  to  create  an  estate  tail,  would  be  held  a  good 
limitation  of  an  estate  tail.®  And  very  often  the  gift  will  be 
con.strued  to  be  an  estate  tail,  where  there  is  no  direct  limita- 
tion to  the  heirs  of  his  body,  as  where  there  was  a  devise  to 
A.  and  if  he  should  die  without  issue  of  his  body,  then  to  B. 
The  intention  is  so  clear  that  B.  is  to  have  it  only  after  the 
termination  of  what  would  be  an  estate  tail,  that  A.  was  held 
to  have  such  an  estate  by  implication.^" 


8  2  Prest.  Est.  480-482-485;  1  Washburn  on  Real  Prop.  104,  10.5;  Co. 
Lit.  20  b;  2  Bla.  Com.  115;  Weart  v.  Cruser,  49  N.  J.  L.  75;  Lehndorf 
r.  Cope  (111.),  13  N.  E.  Rep.  505  (to  M.  "and  her  heirs  by  her  present 
husband,  H.")  ;  Ford  V.  Johnson,  41  Ohio  St.  366  (word  heirs  omitted, 
and  grantee  took  only  a  life  estate).  But  see  Fletcher  v.  Fletcher,  88 
Ind.  418,  where  the  word  "children"  was  held  to  mean  heirs  of  the 
body.  An  estate  tail  may  be  created  by  a  quit  claim  deed,  as  it  is  not 
a  mere  release,  but  a  complete  transfer.  Chew  v.  Kellar,  171  Mo.  215, 
71  S.  W.  Rep.  172.  Adopted  children  will  not  take  as  remaindermen, 
under  a  deed  to  one  and  the  "  heirs  of  his  body."  Clarkson  V.  Hatton, 
143  Mo.  47. 

0  2  Bla.  Com.  115;  Co.  Lit.  27  a;  Nightingale  v.  Burrell,  15  Pick.  104; 
Arnold  v.  Brown,  7  R.  I.  11)6;  Hill  V.  Hill,  74  Pa.  St.  173;  s.  c.  15  Am. 
Rep.  545;  Reinoehl  v.  Shirk,  119  Pa.  St.  108. 

10  Arnold  r.  Brown,  7  R.  I.  19G;  1  Washburn  on  Real  Prop.  100;  Idler, 
Cooke,  2  Ld.  Raym.  11,52;  Hayward  v.  Howe,  12  Gray,  49.  According 
to  the  intention  of  the  testator,  it  will  either  convert  it  into  an  estate 
tail,  or,  if  the  prior  limitation  has  sufficient  words  of  limitation,  the 
prior  limitation  will  be  construed  to  be  a  fee  simple,  liable  to  be  de- 
feated by  the  failure  of  issue,  and  the  limitation  over  will  take  effect 
as  an  executory  devise.  Such  was  held  to  be  the  proper  construction  in 
the  case  of  Hill  v.  Hill,  74  Pa.  St.  173,  15  Am.  Rep.  545.  See  also  Al- 
lender's  Lessee  v.  Sussan,  33  Md.  11,  3  Am.  Rep.  171. 


48 


CH.    v.]  ESTATES   TAIL,  §    41 

§  40.  Estates  tail  created  by  implication. —  Under  the  com- 
mon law  of  England,  and  in  the  United  States,  where  es- 
tates in  tail  have  not  been  abolished,  by  statute,  an  estate 
tail  may  be  created  by  implication."  The  requisites  of  an 
express  grant  or  devise,  of  an  estate  tail,  are,  that  in  ad- 
dition to  the  word  "heirs"  there  should  be  Avords  of  pro- 
creation, which  indicate  the  body  from  which  these  heirs  are 
to  proceed,  or  the  person  by  whom  begotten.  The  general 
limitation  to  a  man  and  the  heirs  of  his  body  is  sufficient,  as 
it  is  immaterial  of  whom  they  are  begotten.^-  But  since  the 
statute  I  Victoria  (ch.  26,  sec.  29,  passed  in  1837),  and  by 
many  of  the  statutes  in  the  United  States,  an  estate  tail  can- 
not arise,  by  implication,  from  words  importing  the  vesting 
of  an  estate  upon  a  failure  of  issue,  as  these  sta- 
tutes require  that  such  words  shall  be  held  to  mean  a 
failure  of  issue  in  the  lifetinie  or  at  the  death  of  the  ancestor 
named.  Hence,  where  a  remainder  in  lands  is  limited  to  take 
effect  on  the  death  of  any  person  "without  heirs"  or  "with- 
out issue"  since  such  words,  under  the  statutes  named,  are 
held  to  mean  heirs  or  issue  living  at  the  death  of  the  person 
named,  the  ground  work  upon  which  a  fee-tail  was  implied, 
in  such  a  grant  or  devise,  is  swept  away  and  no  estate  tail, 
by  implication,  can  be  created  from  the  use  of  such  words. '^ 

§  41.  Classes  of  estates  tail. —  If  the  estate  be  limited  gener- 
ally to  the  heirs  of  one's  body,  it  is  called  an  estate  tail  gen- 
eral. If  it  be  limited  to  particular  heirs  of  the  body,  as  to 
the  heirs  of  one's  body  upon  the  body  of  a  certain  named  wife 
begotten,  only  the  issue  of  that  particular  wife  can  take,  and 
it  is  called  an  estate  tail  special.     The  issue  of  any  other 

"  Yocum  r.  Siler,   1(50  Mo.  loo.  cit.  296. 

1- Den  r.  Snitdier,  14  N.  J.  L.  53;  Yocum  r.  Silor,  supra;  Barber 
r.  Pittsbur}?,  etc.  Ry.  Co.,  166  U.  S.  83,  41  L.  Ed.  !)2r>. 

13  1  Jarnian  on  Wills,  .521  and  cases  cited;  Roscbooni  r.  Koseboom.  81 
X.  Y.  3.56;  Clark  f.  I^eupp,  88  N.  Y.  228;  Yocum  f.  Siler,  160  Mo. 
p.  297;  Middlesex  Banking  Co.  v.  Field  (Miss.  1904),  37  So.  Rep.  139. 

4  49 


§   42  ESTATES  TAIL.  [PART  I. 

wife  cannot  take."  The  special  tail,  in  order  to  be  good, 
must  be  so  limited  as  not  to  be  unlawful."  But  it  does  not 
matter  how  improbable  the  marriage  is,  or  that  they  would 
have  issue  if  married,  the  limitation  will  nevertheless  be 
good.  Such  would  be  the  case  even  though  the  man  and 
woman  are  both  married  at  the  time  to  different  parties;  or 
they  are  so  old  that  according  to  the  ordinary  laws  of  nature, 
they  are  incapable  of  procreating  children.  The  law  will 
consider  it  still  possible  for  them  to  have  issue,  as  long  as 
they  both  live.^"  Another  form  of  estate  tail  special  is  that 
to  their  heirs,  male  or  female,  of  one's  body.  In  this  ease 
the  inheritance  is  confined  to  the  male  or  female  heirs  to  the 
exclusion  of  the  others.  And  each  taker  must  trace  his  de- 
scent through  an  unbroken  line  of  that  class  of  heirs.  Thus 
if  the  limitation  be  to  the  heirs  male  of  one's  body,  the  grand- 
son by  a  daughter  could  not  take,  nor  if  it  be  to  heirs  female, 
could  the  granddaughter  by  a  son  inherit.  Very  often  the 
limitation  is  to  the  heirs  male  of  the  body,  then  to  the  heirs 
female,  exhausting  the  first  class  of  heirs,  before  the  re- 
mainder to  the  latter  takes  effect.  In  such  a  conveyance, 
neither  the  grandson  by  the  daughter,  nor  the  granddaughter 
by  the  son,  could  inherit  the  estate,  and  it  would  revert  for 
failure  of  issue,"  if  there  were  no  technical  heirs,  male  or 
female. 

§  42.  How  estates  tail  may  be  barred. —  The  statute  de  donis 
made  the  ordinary  modes  of  conveyance  incapable  of  barring 
entails,  but  in  the  course  of  time,  the  restraint  upon  alienation 

»«2  Bla.  Com.  113,  114;  2  Prest.  Est.  413,  414;  1  Washburn  on  Real 
Prop.   102,   103. 

15  Thus,  if  the  limitation  is  to  the  issue  of  the  grantee  begotten  upon 
a  woman,  who  is  so  near  a  relative  as  to  render  the  marriage  unlawful, 
the  limitation  in  tail  would  be  void,  and  the  donee  would  take  only  a 
life  estate.     1  Washburn  on  Real  Prop.  103. 

J«2  Prest.  Est.  39,5;   1  Washburn  on  Real  Prop.  103. 

"2  Bla.  Com.  114;  2  Prest.  Est.  402,  403;  1  Washburn  on  Real  Prop. 
103,  104;  Williams  on  Real  Prop.  35;  Hulburt  v.  Emerson,  16  Mass.  241. 
50 


CH.    v.]  ESTATES  TAIL.  §    42 

effected  by  this  statute  became  so  burdensome,  practically  ex- 
cluding lands  from  the  market  as  objects  of  barter  or  sale, 
that  the  courts  at  last  by  a  fictitious  contrivance,  aided  by 
remedial  statutes,  secured  a  means  of  alienation.  It  was  in 
the  nature  of  a  fictitious  suit,  by  which  some  persons  laid 
claim  to  the  land,  and  the  tenant  in  tail  either  acknowledged 
the  justice  of  his  claim,  or  allowed  judgment  by  default  to  be 
entered  up  against  him.  There  were  tAvo  modes  in  use,  viz. : 
fines,  and  common  recoveries.  They  do  not  now  exist,  and 
have  at  no  time  existed  in  more  than  two  or  three  of  the 
States  of  this  country.  The  subject  therefore  deserves  no 
further  consideration.^ «     Since  then,  in  England,  it  has  not 

18  The  common  recovery  was  the  most  common  and  the  most  effectual 
mode  of  barring  the  entail :  "  This  was  a  fictitious  suit  brought  in  the 
name  of  the  person  who  was  to  purchase  the  estate,  against  the  tenant 
in  tail  who  was  willing  to  convey.  The  tenant,  instead  of  resisting  this 
claim  himself,  under  the  pretense  that  he  had  acquired  his  title  of 
some  third  person,  who  had  warranted  it,  vouched  in,  or  by  a  process 
from  the  court  called  this  third  person,  technically  the  vouchee,  to  come 
in  and  defend  the  title.  The  vouchee  came  in,  as  a  part  of  the  dramatis 
personce  of  his  judicial  farce,  and  then,  without  saying  a  word,  dis- 
appeared and  was  defaulted.  It  was  a  principle  of  the  fuedal  law,, 
adopted  thence  by  the  common  law,  that  if  a  man  conveyed  lands  witlc 
a  warranty,  and  the  grantee  lost  his  estate  by  eviction  by  one  having  a 
better  title,  he  should  give  his  warrantee  lands  of  equal  value  by  way  of 
recompense.  And  as  it  would  be  too  barefaced  to  cut  off  the  rights  of 
the  reversion  as  well  as  of  the  issue  in  tail  by  a  judgment  between  the 
tenant  and  a  stranger,  it  was  gravely  adjudged,  (1)  that  the  claimant 
should  have  the  land  as  having  the  better  title  to  it,  and  (2)  that  the 
tenant  should  have  judgment  against  his  vouchee  to  recover  lands  of 
equal  value  on  the  ground  that  he  was  warrantor,  and  th..s,  theoretic- 
ally, nobody  was  harmed.  If  the  issue  in  tail,  reversioner  or  remainder- 
man, lost  that  specific  estate,  he  was  to  have  one  of  equal  value  through 
this  judgment  in  favor  of  the  tenant  in  tail;  whereas,  in  fact,  the- 
vouchee  was  an  irresponsible  man,  and  it  was  never  expected  that  he- 
was  anytliing  more  than  a  dummy  in  the  game."  1  Washburn  on  ReaV 
Prop.  97,  98.  Taltarum's  Case,  Year  Book,  12  Edw.  IV  19  is  the  lead> 
ing  case  on  the  subject;  2  Bla.  Com.  116;  Williams  on  Real  Prop.  45-48; 
Taylor  i".  Horde.  1  Burr.  84;  Page  V.  Hayward,  2  Salk.  570.  See  the 
following  American  cases,  in  which  fines  and  common  recoveries  are  dis- 
cussed and  recognized,  but  declared  to  be  abolished.    McGregor  v.  Com- 

51 


§  44  ESTATES  TAIL.  [PAI;t  1. 

l)oen  po&sible  to  keep  the  estate  entailed  for  any  great  length 
of  time,  at  the  most  only  during  the  minority  of  the  tenants. 
As  soon  as  the  tenant  became  of  age,  he  was  able  to  bar  it. 
This  gave  rise  to  what  are  known  as  marriage  settlements,  in 
which  the  lands  were  settled  on  the  husband  and  wife  for  life, 
remainder  to  the  first  and  other  sons  in  tail,  etc.  In  such  a 
case  the  estate  tail  in  remainder  would  be  locked  up  until  the 
eldest  son  has  reached  his  majority.^" 

§  43.  Merger  of  an  estate  tail. —  It  is  a  general  rule,  which 
will  receive  constant  illustration  in  the  following  pages,  that 
where  a  less  and  a  greater  estate  unite  in  one  person,  the 
former  is  merged  and  lost  in  the  latter.  But  this  is  not  al- 
ways the  case.  A  man  may  have  an  estate  tail  and  the  rever- 
sion in  fee  upon  failure  of  issue,  but  the  estate  tail  will  re- 
main intact,  and  cannot  be  barred  except  in  the  mode  here 
indicated.^** 

§  44.  Estate-tail  after  possibility  of  issue  extinct. —  When 
the  legal  possibility  of  issue  has  ceased,  it  leaves  to  the  tenant 
in  tail  a  life  estate  of  a  peculiar  character,  which  is  denomi- 
nated an  estate  tail  after  possibility  of  issue  extinct.  He  is 
not  liable  to  an  action  for  waste  by  the  reversioner,  although 

stock,  17  N.  Y.  162;  Croxhall  v.  Sherard,  5  Wall.  268.  In  Pennsylvania 
they  apparently  exist  still.  Richman  v.  Lippincott,  29  N.  J.  L.  44; 
Lyle  r.  Richards,  7  S.  &  R.  .322;  Dewitt  v.  Eldred,  4  Watts  &  S.  421; 
Taylor  r.  Taylor,  63  Pa.  St.  48.5.  They  never  existed  in  Missouri. 
Moreau  r.  Detchemendy,  18  Mo.  527.  An  estate  tail  by  statute  in 
Massachusetts,  is  barred  by  a  deed  in  common  form.  Gilkie  v.  Marsh 
(1904),  186  Mass.  336,  71  N.  E.  Rep.  703. 

19  Williams  on  Real  Prop.  .50,  .51;   1  Washburn  on  Real  Prop.  90. 

2oWi.scot's  Case,  2  Rep.  61;  Roe  V.  Baldwere,  5  T.  R.  110;  Poole  V. 
Morris,  29  Ga.  374;  Altham's  Case,  8  Rep.  154  b;  Corbin  v.  Healy,  20 
Pick.  515.  In  determininf^  questions  of  merger,  the  principle  by  which 
the  court  is  guided  is  the  intention  of  the  parties ;  in  the  absence  of  the 
expression,  either  documentary  or  verbal,  of  any  intention,  the  court 
looks  to  the  benefit  of  the  person  in  whom  the  two  estates  are  vested. 
fngle  V.  Vaughan  Jenkins  (Eng.  1900),  09  I^aw  J.  Ch.  618,  83  Law  T. 
(N.  S.),  155;  Cole  v.  Beale,  89  111.  App.  426. 
52 


CH.    v.]  ESTATES   TAIL.  §    45 

he  may  be  restrained  by  an  equitable  injunction  from  the 
commission  of  willful  and  malicious  waste.  It  is  apparent 
that  this  can  only  happen  in  the  case  of  an  estate  tail  special. 
If  the  limitation  be  to  the  heirs  of  one's  body  generally,  there 
is  a  legal  possibility  of  issue,  as  long  as  the  tenant  is  living.-'^ 

§  45.  Estates  tail  in  the  TJnited  States. —  In  the  early  colo- 
nial period,  estates  tail  prevailed  in  this  country  very  gen- 
erally, and  they  could,  in  some  of  the  States,  be  barred  by 
fines  and  recoveries.^^  But  at  the  present  time  they  have 
been  abolished  in  most  of  the  States.  In  some  they  are 
changed  into  fees  simple,  while  in  others  they  are  divided 
into  a  life  estate  and  remainder  to  issue,  or  easy  modes 
of  converting  them   into  fees  simple   are  provided.^' 

21  1  Washburn  on  Real  Prop.  110,  111;  Williams  on  Real  Prop.  54,55; 
2  Sharwood's  Bla.  Com.  125 ;  Soe  V.  Audley,  1  Cox,  324 ;  List  V.  Rodney, 
2  Norris,  483;  Co.  Lit.  27  b,  28  a.  In  Tennessee,  it  is  held  that  a  re- 
mainder to  the  children  of  a  woman  is  not  extinguished  until  her  death, 
although  she  may  be  very  old  and  childless,  as  the  law  does  not  assume 
that  there  is  an  impossibility  of  issue  at  any  age,  however  great.  Big- 
ley  V.  Watson,  98  Tenn.  353,  39  S.  W.  Rep.  525,  38  L.  R.  A.  679.  As  the 
grantee  of  a  tenant  in  tail  would  take  nothing  but  the  life  estate  of 
such  tenant,  under  the  Missouri  statute,  it  would  be  immaterial,  as  to 
such  grantee,  whether  the  living  female  grantor  has  reached  such  age 
that  the  possibility  of  having  further  heirs  of  her  body  is  extinct  or  not, 
or  whether  her  heirs  are  contingent  or  vested  remaindermen.  Utter 
f.  Sidman,  170  Mo.  285,  70  S.  W.  Rep.  702.  But  see,  Jackson  v. 
Everett  (Tenn.),  58  S.  W.  Rep.  340. 

22  Hawley  v.  Northampton,  8  Mass.  ."4;  Perry  v.  Kline,  12  Cush.  120; 
Corbin  v.  Healey,  20  Pick.  515;  Jewell  v.  Warner,  35  N.  H.  170;  Den- 
nett V.  Dennett,  40  N.  H.  500;  Jackson  t?.  Van  Zandt,  12  Johns.  149; 
Croxhall  v.  Sherard,  5  Wall.  283;  Dewitt  v.  Eldred,  4  Watts  «fe  S.  421; 
4  Kent's  Com.  14;  Walker  Am.  Law.  299;  1  Washburn  on  Real  Prop. 
111. 

23  In  Alabama,  California,  Connecticut,  Plorida,  Georgia,  Kentucky, 
Maryland,  Michigan,  Minnesota,  Mississippi,  North  Carolina,  Tennessee, 
Texas,  Wisconsin,  Virginia,  and  West  Virginia,  estates  tail  are  converted 
into  fees  simple.  Wheatley  v.  Barker,  79  Ga.  790,  4  S.  E.  Rep.  387, 
note;  Ewing  r.  Shropshire,  80  Ga.  374;  East  v.  Gari'ett,  84  Va.  .523; 
Smith  V.  Greer,  88  Ala.  414;  Bait.  &  O.  R.  R.  Co.  r.  Patterson,  08  Md. 
606;  Leather  v.  Gray   (N.  C),  7  S.  E.  Rep.  657;   Bingham  v.  Weller 

53 


5    45-  ESTATES  TAIL.  [PxVRT   I. 

(Tenn.  1904),  81  S.  W.  Rep.  843;  Viely  V.  Frankfort,  etc.,  Co.,  51  S.  W. 
Hep.  173;  Hertz  r.  Abrahams,  110  Ga.  707,  50  L.  R.  A.  361,  36  S.  E.  Rep. 
409.  In  Maryland,  only  estates  tail  general  are  converted  into  fees 
simple.  An  estate  tail,  male  or  female,  remains  unaffected  by  the  stat- 
ute. Pennington  f.  Pennington,  70  Md.  118.  In  Arkansas,  Illinois, 
Kansas,  Missouri,  New  Jersey,  and  Vermont,  the  tenant  in  tail  takes 
a  life  estate  and  the  heirs  of  his  body  the  remainder  in  fee  per  formam 
(ioni.  Lehndorf  r.  Cope  (III.),  13  N.  E.  Rep.  505;  Horsley  v.  Hilburn, 
44  Ark.  458;  Weart  V.  Cruser,  49  N.  J.  L.  75;  Wood  V.  Kice  (Mo.), 
15  S.  \V.  Rep.  623;  Lewis  V.  Earnhardt,  43  Fed.  Rep.  854;  Black  V. 
Webb  (Ark.  1904),  80  S.  W.  Rep.  307;  Utter  v.  Sidman,  170  Mo.  284, 
70  S.  W.  Rep.  702.  Under  the  Illinois  statute,  where  the  grantee  of 
a  fee  tail  refuses  to  take,  he  does  not  become  "  seised  in  fee  tail,"  so 
that  the  land,  or  any  part  of  it  would  vest  in  fee,  in  his  heirs.  Spencer 
r.  Spruel,  196  111.  119,  63  N.  E.  Rep.  621.  In  Indiana  (Allen  v.  Craft, 
109  Ind.  476)  and  New  York,  the  tenant  takes  a  fee  simple,  if  there  is 
no  limitation  in  remainder,  after  the  estate  tail  and  a  life  estate,  when 
there  is  such  a  limitation.  And  while  in  Delaware,  Maine,  Massa- 
chusetts, Pennsylvania  and  Rhode  Island,  estates  tail  are  not  expressly 
abolished,  and  presumably  if  not  aliened  they  would  descend  to  the 
special  heirs,  and  revert  to  the  grantor  upon  failure  of  such  heirs,  it  is 
now  provided  by  statute  in  those  States  that  a  conveyance  in  common 
form  will  pass  a  fee  simple  estate,  and  bar  the  entail.  Titzell  v.  Coch- 
ran (Pa.),  10  Atl.  Rep.  9;  Coombs  V.  Anderson,  138  Mass.  376; 
I^wrence  v.  Lawrence,  105  Pa.  St.  335;  Rowland  v.  Warren,  10  Oreg. 
129;  Pierson  f.  Lane,  60  loAva,  60;  1  Washburn  on  Real  Prop.  112,  note; 
Williams  on  Real  Prop.  35,  Rawle's  note;  Gilkie  v.  Marsh  (1904),  186 
Mass.  336,  71  N.  E.  Rep.  703;  Simpson  v.  Reed,  205  Pa.  St.  53,  54  Atl. 
Rep.  53;  Stanch  v.  Ziegler,  196  Pa.  St.  489,  46  Atl.  Rep.  486;  Stone  V. 
Bradlee  (Mass.  1903),  66  N.  E.  Rep.  708.  In  South  Carolina,  the 
statute  de  donis  has  never  been  recognized  as  a  part  of  the  common  law, 
and  fees  conditional  still  exist  there.  3  S.  C.  Stats,  at  Large,  341; 
Archer  v.  Ellison,  28  S.  C.  238;  Powers  t?.  Bull  winkle,  33  S.  C.  293.  See, 
also,  Keith  v.  Scoles  (N.  C.)  32  S.  E.  Rep.  809;  Holman  v.  Wesner 
(1903),  67  S.  C.  307,  45  S.  E.  Rep.  206;  Mattison  v.  Matllson,  65  S.  C. 
345,  43  S.  E.  Rep.  874;  Methodist  Church  v.  Young,  130  N.  C.  8,  40  S.  E. 
Rep.  691. 

54 


CHAPTER  VI. 

ESTATES   FOR   LIFE. 

Section     46.  Definition  and  classes  of  life  estates. 

47.  Peculiarities  of  an  estate  per  auter  vie. 

48.  Words  of  limitation  in  estates  for  life. 

49.  Estates  tail,  converted  into  life  estates  by  statute 
60.  The  merger  of  life  estate  in  a  greater. 

51.  Alienation  by  tenant  for  life. 

52.  Power  given  life  tenant  to  convey  the  fee. 

53.  Tenure  between  tenant  for  life  and  reversioner. 

54.  Apportionment  between  life  tenant  and  reversioner,  of  ia» 

cumbrances. 

55.  Snme  —  Of  rent. 

56.  Claim  for  improvements. 

57.  Estovers. 

58.  Emblements  —  What  they  are. 

59.  Same  —  Who  may  claim  them. 

60.  Definition  and  history  of  waste. 

61.  What  acts  constitute  waste  —  General  rule. 

62.  Waste  —  In  respect  to  trees. 

63.  Property  in  timber  unlawfully  cut. 

64.  Continued  —  In  respect  to  minerals  and  other  deposits. 

65.  Continued  —  Management  and  culture  of  land. 

66.  Continued  —  In  respect  to  buildings. 

67.  Exemption  from  liability. 

68.  Remedies  for  waste. 

§  46.  Definition  and  classes  of  life  estates. —  An  estate  for 
life  is  strictly  one  whose  duration  is  limited  by  the  life  or 
lives  of  certain  persons;  it  may  be  the  life  of  the  tenant, 
the  life  of  another,  or  the  joint  lives  of  the  tenant  and 
others.  But  the  term  has  been  generally  extended  so  as  to 
include  all  freeholds  not  of  inheritance.^     It  will,  therefore, 

iThe  life  estates  above  referred  to  are  frequently  termed  "  conven- 

55 


I   40  UPE   ESTATES.  [PART    I. 

embrace  an  estate  for  an  uncertain  period,  which  may  oon- 
tinue  during  a  life  or  lives.  Such  would  be  a  grant  to  a 
woman  during  widowhood.  If  she  marries,  her  estate  would 
terminate;  but  it  may  endure  as  long  as  she  lives.^  And 
it  is  of  no  consequence  how  uncertain  the  duration  of  the 
estate  may  be,  or  how  likley  it  will  terminate  in  a  given 
number  of  years;  if  it  can,  and  may,  continue  during  a 
life,  it  is  considered  a  freehold  estate  for  life.  Such  is  a 
grant  to  one,  until  he  can,  out  of  the  rents  and  profits,  pay 
the  debts  of  the  grantor.  But  if  the  conveyance  be  a  devise 
to  executors,  until  the  devisor's  debts  are  paid,  they  would 
take  only  a  chattel  interest.'  An  estate  for  one's  own  life 
is  considered  by  the  law  to  be  the  highest  and  best  estate 
for  life  that  one  can  have.  Consequently  the  courts,  in  con- 
struing a  doubtful  grant  for  life,  would  hold  it  to  be  for  the 
life  of  the  tenant,  rather  than  for  the  life  of  the  grantor.* 
An  estate  for  the  life  of  another  is  called  in  the  Norman- 
French,  an  estate  per  outer  vie,  and  the  one  whose  life  limits 
its  duration  is  called  the  cestui  que  vieJ^  In  the  present 
chapter  we  shall  speak  only  of  estates  for  life  in  general 
and  of  those  incidents  which  pertain  to  the  estates  for  life, 
which  are  created  by  the  act  of  the  parties,  or  in  other  words, 
of  conventional  life  estates.  There  are  other  classes  of  life 
estates,  which  come  into  being  by  operation  of  law,  as  in  the 
case  of  dower  and  curtesy;  these  will  be  treated  in  a  sepa- 
rate chapter,® 

tjonal  "  life  estates,  to  distinguish  them  from  life  estates  created  by 
operation  of  law.  4  Kent's  Com.  2.5,  where  such  estates  are  treated  as 
"  estates  for  life  by  agreement."     TifTany,  Real  Prop.  30. 

2  Co.  Lit.  42  a;  Hurd  v.  Cushing,  7  Pick.  179;  Jackson  v.  Myers,  3 
Johns.  388;  Roseboom  V.  Van  Vechten,  5  Dcnio  414;  Hatfield  v.  Sneden. 
54  N.  Y.  28.'>;  Clark  v.  Owens,  18  N.  Y.  434;  Hewlins  v.  Shippam,  5 
B.  &  C.  221,  2  Bla.  Com.  121;  McArthur  v.  Scott,  113  U.  S.  340,  2S  L. 
Ed.  101.5;  Holt  V.  Lamb,  17  Ohio  St.  374;  Hayward  V.  Kinnev,  84  Mich, 
591. 

3  Co.  Lit.  42  a;   1  Washburn  on  Real  Prop.  110. 

«Co.  Lit.  42  a;  2  Bla.  Com.  121;   1  Washburn  on  Real  Prop.   115. 
»Co.  Lit.  41  b;  2  Bla.  Com.  120. 
"See  post,  ch.  VII,  Sees.  69,  127. 

56 


CH.    VI.]  LIFE   ESTATES  §   47 

§  47.  Peculiarities  of  an  estate  per  anter  vie. —  An  estate 
for  the  life  of  another,  as,  for  example,  an  estate  for  the 
life  of  the  grantor,  is  a  freehold,  but  is  not  an  estate  of  in- 
heritance. Perhaps  during  the  earlier  existence  of  the  feudal 
system,  it  was  not  considered  as  strictly  a  freehold  interest; 
but  it  is  now,  and  has  long  been,  included  in  that  class  of 
estates.  The  estate  terminates  with  the  death  of  the  cestui 
que  vie,  and  does  not  expire  with  the  death  of  the  tenant. 
If,  therefore,  the  tenant  dies  during  the  life  of  the  cestui  que 
vie,  the  estate  continues  and  must  vest  in  some  one.  If  he 
has  conveyed  it  away,  his  grantee  will  hold  it,  unaffected  by 
his  death.  But  if  he  dies  in  possession,  a  question  of  some 
difficulty  arises.  At  common  law,  it  could  not  descend  to 
his  heirs,  for  the  law  of  descent  applies  only  to  estates  of  in- 
heritance; and  this  is  not  such  an  estate.  It  could  not  de- 
scend to  the  executor  or  administrator,  for  they  could  take 
only  chattel  interests,  and  this  was  a  freehold.  It  was  also 
not  devisable,  for  it  was  a  freehold  interest.  At  common  law 
it  was  permitted  for  any  one  who  first  took  possession  to 
hold  it,  and  he  was  called  the  general  occupants  This  right 
of  general  occupancy  could  only  be  exercised  where  there 
were  no  persons  designated  in  the  grant  who  could  take  as 
special  occupants.  If  the  grant  was  to  A.  and  his  heirs  dur- 
ing the  life  of  B.,  the  heirs  would  take  as  special  occupants, 
to  the  exclusion  of  the  general  occupant.*  But  these  special 
occupants  had  not  the  interest  of  purchasers  during  the  life 
of  the  tenant.     They  only  took  what  was  left  undisposed  of, 

7  Co.  Lit.  41  b;  2  Bla.  Com.  259. 

8  2  Bla.  Com.  2.59.  260;  Atkinson  v.  Baker,  4  T.  R.  229.  A  tenant 
at  will  of  the  tenant  per  outer  vie,  in  possession  at  the  death  of  the 
latter,  will,  as  against  the  general  occupant,  have  a  superior  claim  as 
one  species  of  special  occupant,  though  he  would  have  to  yield  posses- 
sion to  the  Sipecial  occupant,  who  was  also  heir  of  the  tenant.  Co.  Lit. 
41b,  note  232.  And  in  like  manner,  the  executor  or  administrator 
might  have  taken  the  estate  as  special  occupant,  if  the  grant  had  been 
to  the  tenant  and  his  executors  and  administrators,  instead  of  to  him 
and  bia  heirs.     See  authorities,  supra. 

57 


§    48  LIFE  ESTATES.  [PART   I, 

and  could  not  prevent  its  alienation  by  the  tenant.  On  the 
other  hand,  the  tenant  could  not  bar  them  by  a  devise  of  the 
estate."  This  peculiarity  of  the  common  law  has  since  been 
done  away  with  by  statute  in  England,^**  and  in  almost  every 
State  in  this  country.  In  some,  estates  per  auter  vie  are 
made  to  descend  to  heirs  in  common  with  other  real  estate; 
while  in  others  it  is  treated  as  a  chattel  interest,  and  con- 
stitutes assets  in  the  hands  of  the  personal  representatives.^^ 

§  48.  Words  of  limitation  in  estates  for  life. —  There  are  no 
words  of  limitation  required  at  common  law.  A  grant  of 
an  estate  was  construed  to  be  for  the  life  of  the  grantee, 
where  there  was  no  express  limitation.^^  But  in  those  States 
where  now  by  statute  all  grants  and  devises  are  made  to  con- 
vey a  fee  simple  estate,  unless  a  less  estate  is  exi)ressly 
limited,  it  would  be  necessary  to  limit  the  estate  for  the  life 
of  the  grantee  in  express  words.^^  And  in  devises,  a  life 
estate  is  often  raised  by  implication.  Thus  where  A.  de- 
vised his  lands  to  his  heirs  after  the  death  of  B.,  it  was 
held  that  B.  took  an  estate  for  life  by  necessary  implication, 
since  no  one  cottld  take  the  estate  except  the  heir,  and  he 
was  postponed  by  the  will  until  B.'s  death.  But  if  the  de- 
vise had  been  to  a  stranger  after  the  death  of  B.,  the  heirs 

»  Doe  V.  Robinson,  8  B.  &  C.  296 ;  Doe  v.  Luxton,  6  T.  R.  289 ;  Allen 
V.  Allen,  2  Dru.  &  War.  307;  1  Washburn  on  Real  Prop.  121. 

10  1  Vict.  c.  26;  14  Geo.  II  e.  20;  4  Davy's  Case,  38,  56. 

11  In  Missouri,  Arkansas,  Rhode  Island,  North  Carolina,  Massa- 
chusetts and  some  others,  it  is  real  estate ;  while  in  New  York,  New  Jer- 
sey, Pennsylvania,  Indiana,  Kentucky,  Minnesota,  Maryland,  Michigan, 
Wisconsin,  Texas,  it  is  personal  property.  In  all  the  States  it  can  now 
be  disposed  of  by  will.  In  Maryland,  the  right  of  special  occupancy  is 
still  recognized,  so  that  if  the  estate  per  auter  vie  is  expressly  limited 
to  the  heirs,  the  heirs  will  take  as  special  occupants.  In  the  other 
States,  the  limitation  does  not  give  them  a  superior  title,  if  the  statute 
makes  the  estate  personal  property.  See  1  Washburn  on  Real  Prop.  121; 
Williams  on  Real  Prop.  21,  Rawle's  note. 

"Co.  Lit.  42  a;  5  Bla.  Com.  121;  Truesdell  v.  Lehman,  47  N.  J.  Eq. 
218 ;  Domey's  Estate,  136  Pa.  St.  142. 
"  See  ante,  Sec.  30. 
58 


CJI.    VI.]  LIFE    ESTATES.  §    49 

would  have  taken  by  descent  during  the  life  of  B.    instead 
of  the  latter." 

§  49.  Estates  tail,  converted  into  life  estates  by  statute. — 
In  many  of  the  United  States,  a  grant  or  devise  of  an  es- 
tate to  the  grantee  or  devisee  and  to  the  "heirs  of  his  body," 
or  to  his  "issue,"  or  to  his  "children,"  which,  at  common 
law,  would  be  held  to  create  an  estate  in  tail,  is  by  statute, 
et)nverted  into  an  estate  for  life  in  the  first  taker,  with  re- 
mainder over,  on  his  death,  to  his  heirs.^^  A  life  estate  is 
held,  by  operation  of  law,  to  result  from  any  grant  or  de- 
vise, that  at  common  law,  would  be  held  to  create  an  estate 
tail,  and  in  some  jurisdictions,  even  though  the  premises  in 
a  deed  attempt  to  convey  an  absolute  estate  in  fee,  if  a 
limitation  appears  in  the  habendum,  evincing  an  intention  to 
limit  the  estate  granted  or  devised  to  the  first  taker  and  to 
his  "heirs"  or  "issue"  the  conveyance  is  held  to  create  only 
a  life  estate  in  the  first  taker,  with  remainder  over  to  his 
heirs.^®  "If  the  limitation  in  one  part  of  a  conveyance  is  to 
A.  and  his  heirs  generally,  and  in  the  other  part  the  estate 
is  limited  to  A.  and  to  the  "heirs  of  his  body,"  the  two 
descriptions  of  the  estate  are  not,  necessarily  contradictory, 
and  the  specific  limitation  will  prevail  over  the  general 
limitation."  In  such  case,  the  estate  granted  will  be  an  es- 
tate tail,  which,  by  operation  of  law,  in  jurisdictions  where 
such  statutes  are  in  force,  would  convey  only  a  life  estate 
in  the  grantee,  with  remainder  to  his  heirs.^® 

!♦  1  Washburn  on  Real  Prop.  116,  117. 

IB  Wagner's  Stat.  Mo.  1872,  page  1351 ;  R.  S.  1899,  Sees.  4592,  4594. 
Statutes  to  this  effect  exist  in  Arkansas,  Illinois,  Kansas,  Missouri, 
New  Jersey  and  Vermont,  ante,  Sec.  45. 

i«Clarkson  v.  Clarkson,  125  Mo.  381;  Clarkson  v.  Hatton,  143  Mo. 
47;  McGinnis  v.  McGinnis  (Ky.),  29  S.  W.  Rep.  333;  Wilmers  v.  Robin- 
son (Ark.),  55  S.  W.  Rep.  950;  Hunt  t;.  Searcy  (Mo.),  67  S.  W.  Rep. 
206;  Utter  c.  Sidman,  170  Mo,  284;  Davidson  v.  Manson,  146  Mo.  608; 
Walton  V.  Drumtra,  152  Mo.  480. 

"  Hunter  v.  Patterson,  142  Mo.  310. 

!•  Hunter  v.  Patterson,  supra. 

59 


§    51  LIFE   ESTATES.  [PART   I. 

§  50.  The  merger  of  life  estate  in  a  greater. —  If  a  life  es- 
tate is  conveyed  to  one  having  a  reversion  or  any  other 
greater  estate,  or  the  tenant  acquires  the  reversion,  the  life 
estate  is  merged  in  the  latter.^®  So  would  an  estate  for  the 
life  of  another  merge  in  an  estate  for  one's  own  life.^''  But 
if  the  tenant  for  life  conveys  to  the  reversioner  an  estate  for 
the  life  of  the  latter,  a  possible  reversionary  interest  being 
left  in  the  tenant,  there  will  be  no  merger,  and  the  tenant 
would  take  the  estate  again,  if  the  reversioner  should  die 
during  his  life-time.^^  The  two  estates  must  also  be  of  the 
same  character.  A  legal  life  estate  will  not  merge  into  an 
equitable  estate  in  remainder.^'' 

§  51.  Alienation  by  tenant  for  life. —  Unless  there  is  a  con- 
dition in  restraint  of  alienation,^'  the  tenant  for  life  may 
convey  his  estate  as  freely  as  the  tenant  in  fee.  He  may 
alien  his  entire  interest,  which  would  become^  in  his  grantee, 
an  estate  per  auter  vie.  Or  he  may  grant  any  smaller  es- 
tate, and  may  carve  up  his  estate  into  any  number  of  smaller 
estates,  as  long  as  they  do  not  together  exceed  his  life 
estate.^*    If  the  life  tenant  attempted  to  convey,  by  a  com- 

19  2  Bla.  Com.  177;  Co.  Lit.  41  b;  Mudd  v.  MuUican  (Ky.),  12  S.  W. 
Rep.  263. 

20  1  Washburn  on  Real  Prop.  117;  1  Spence  Eq.  Jur.  144;  Williams 
on  Real  Prop.  22 ;  Boykin  v.  Ancrum,  28  S.  C.  486,  6  S.  E.  Rep,  305,  13 
Amer.  St.  Rep.  698. 

21  1  Washburn  on  Real  Prop.  117,  118;  Co.  Lit.  42,  218  b. 

22  Davis  V.  Townsend  (S.  C),  10  S.  E.  Rep.  837.  Where  life  tenants, 
in  a  legal  life  estate,  under  a  will,  are  entitled  to  vested  remainders  in 
such  property^  the  two  estates  coalesce  and  such  tenants  take  the  fee. 
Graham  v.  Whitridge  (Md.  1904),  57  Atl.  Rep.  609,  58  id.  36.  See 
Hollenberger  r.  Youkee,  145  Pa.  St.  179,  22  Atl.  Rep.  821;  Sheldon  v. 
Hallock,  62  Conn.  143,  25  Atl.  Rep.  483;  Turk  v.  Skiles,  45  W.  Va,  82, 
30  S.  E.  Rep.  234.     But  see,  Re  RadcliflT  (C.  A.),  1  ch.  227. 

28Hayward  v.  Kinney,  84  Mich.  591;  Criswell  v.  Grumbling,  107  Pa. 
St.  408. 

24  1  Cruise  iHg.  Iftft;  Stewart  v.  Clark,  13  Mete.  79;  Jackson  v.  Van 
Hoesen,  4  Cow.  325;    Williams  on  Real  Prop.  26;   Lehndorf  v.   Cope 
(lU.),  13  N.  E.  Rep.  605. 
60 


CH.    VI.  j  LIFE    ESTATES.  §    52 

mon-law  feoffment,  a  greater  estate  than  he  had,  it  worked 
a  forfeiture  of  his  estate,  his  grantee  received  nothing,  and 
the  estate  in  remainder  or  in  reversion  vested  in  possession. 
This  rule  follows  as  a  consequence  from  the  feudal  notion 
that  the  wrongful  feoffment  of  the  life  tenant  was  a  renun- 
ciation of  the  feudal  tenure  between  him  and  the  lord,  an 
act  of  disseisin,  which  divested  the  remainder-man  or  re- 
versioner, of  his  seisin  by  its  livery  to  the  grantee.-^  And 
this  rule  applies  to  this  day,  wherever  it  has  not  been  changed 
by  statute.  But  if  he  attempts  the  conveyance  of  a  greater 
estate  by  any  other  mode  of  conveyance,  such  as  a  grant, 
lease,  and  release,  or  bargain  and  sale,  which  operate  under 
special  statutes  or  under  the  Statutes  of  Uses,  it  will  only 
have  the  effect  of  conveying  what  interest  he  has,  and  no 
forfeiture  results  therefrom.-**  These  deeds  do  not  operate 
by  transmutation  of  possession,  and  therefore  do  not  divest 
the  tenant  in  remainder  or  reversion  of  his  seisin.  The  na- 
ture and  effect  of  these  various  deeds  will  be  more  par- 
ticularly considered  in  subsequent  pages.^^ 

§  52.  Power  given  life  tenant  to  convey  the  fee. —  The  ques- 
tion is  decided  differently  in  different  jurisdictions  as  to  the 
right  of  a  life  tenant  to  convey  the  fee,  where  a  general 
power  of  sale  is  given  to  such  tenant  by  the  testator.  In 
the  absence  of  a  limitation  over,  the  courts  very  generally 
hold  that  such  a  power,  on  the  part  of  a  tenant  for  life, 
will  enable  him  to  convey  the  fee,  as  this  would,  manifestly, 
carry  out  the  intent  of  the  testator  or  donor,^'  but  where 

25  2  Bla.  Com,  274,  275;  1  Cruise  Dig.  108;  1  Washburn  on  Real 
Prop.  1 18,  1 19 ;  Jackson  v.  Mancius,  2  Wend.  365 ;  Stump  v.  Findlay,  2 
Rawle,  168;  Matthews  v.  Ward's  Lessee,  10  Gill  &  J.  449;  Redfern  v. 
Middleton,  1  Rice  459;  Faber  v.  Police,  10  S.  C.  376,  See  post,  Sees. 
317,  536, 

2«  1  Washburn  on  Real  Prop.  119.     See  post,  Sec.  317. 

27  See  post,  Sees.  540,  549. 

2'*  In  Cummings  v.  Shaw  (108  Mass.  159),  the  court  say:  "If  a 
question  had  arisen  as  to  the  validity  of  a  devise  over,  it  might  be 

61 


§    53  LIFE   ESTATES.  [PART   I. 

there  is  a  devise  over,  after  the  life  estate,  the  decisions  are 
not  in  complete  harmony  as  to  the  construction  of  such  a 
power.  The  federal  supreme  court,  basing  its  holding  upon 
a  loading  early  case,-"  uniformly  holds  that  such  a  power 
does  not  have  the  effect  of  enabling  the  life  tenant  to  con- 
vey the  fee,  as  this  would  have  the  effect  of  enlarging  the 
life  estate  into  a  fee,  where  a  contrary  intent  is  evidenced 
by  the  creation  of  the  life  estate.'"  But  many  of  the  courts 
of  the  different  States  construe  such  a  power,  upon  the  part 
of  the  tenant  for  life,  as  an  authority  upon  his  part  to  con- 
vey an  estate  in  fee,  even  though  there  may  be  a  limitation 
over,  after  the  termination  of  the  life  estate,  upon  the  theory 
that  a  power  of  alienation  of  the  life  estate  was  an  incident 
to  such  estate,  without  expi'ess  grant  thereof,  and  to  restrict 
the  right  of  sale  to  the  life  estate  would  not  effectuate  the  in- 
tention of  the  testator,  wHo  would  not  be  presumed  to  have 
intended  the  idle  ceremony  of  granting  a  power  already  en- 
joyed.'^ 

§  53.  Tenure  between  tenant  for  life  and  reversioner. —  The 
relation  of  tenure  so  far  exists  between  the  life  tenant  and 
his  reversioner,  as  that  the  possession  of  the  former  is  never 
deemed  to  be  adverse  to  the  latter.  That  is,  during  the  ex- 
important  to  determine  whether  the  plaintiff  took  an  estate  for  life,  or 
in  fee,  but  it  cannot  be  so  in  this  case." 

20  Smith  r.  Bell,  6  Pet.  68;  8  L.  Ed.  322.  The  authority  of  this 
case  is  somewhat  impaired  by  the  fact  that  counsel  for  the  grantee  of  the 
power  did  not  appear  in  the  supreme  court.  Gifford  v.  Choate,  100 
Mass.  340. 

30  Brant  r.  Coal  Co.,  93  U.  S.  326,  23  L.  Ed.  927;  Giles  f.  Little,  104 
U.  S.  291,  26  L.  Ed.  745. 

siTarks  r.  Robinson  (N.  C),  50  S.  E.  Bep.  649;  Troy  r.  Troy.  60 
N.  C.  623;  Wright  r.  Westbrook,  121  N.  C.  156,  28  S.  E.  Rep.  209; 
White  r.  White,  21  Vt.  250;  Underwood  ?•.  Cave  (Mo.),  75  S.  W.  Rep. 
455,  60  Cent.  T^w  Jour.  441.  It  is  held,  in  Tennessee,  that  where  the 
life  tenant  sells  the  entire  estate  and  sets  aside  a  portion  of  the  pro- 
ceeds for  the  remainderman,  the  latter  may  ratify  the  sale  and  re- 
cover the  portion  so  set  aside  from  the  life  tenant's  administrator. 
Russr'l  r.  State  Nat.  Bank,   104  Tenn.  614,  58  S.  W.  Rep.  245. 


CH.    VI.]  LIFE   ESTATES.  §    53 

istence  of  the  life  estate  he  cannot  disseise  his  reversioner  by 
any  adverse  claim  of  title.  Nor  will  the  disseisin  of  the  life 
tenant  by  a  stranger  affect  the  rights  of  the  reversioner  dur- 
ing the  life  of  the  former.  He  may  recover  possession  of 
the  disseisor  at  any  time  after  the  death  of  the  life  tenant 
within  the  statutory  period  of  limitation.  The  statute  only 
runs  from  the  death  of  the  tenant.^^  And  where  the  life 
tenant  has  granted  the  fee,  his  grantee  becomes  a  trespasser 
from  his  death,  and  may  be  ousted  by  the  reversioner,  it 
matters  not  how  long  he  may  have  been  in  possession  during 
the  life  of  the  tenant  for  life.^^  But  the  common-law  real 
actions,  when  brought  against  the  life  tenant  for  recovery  of 
the  land  under  a  claim  of  title  adverse  to  both  reversioner 
and  life  tenant,  barred  the  claims  of  the  reversioner  as  well 
as  the  life  tenant,  even  though  the  former  was  not  made  a 
party  to  the  suit.  These  real  actions  could  only  be  brought 
against  the  tenant  in  possession,  who  was  called  the  tenant  of 
the  prcBcipe.  The  life  tenant  was,  therefore,  under  obliga- 
tion to  the  reversioner  to  defend  the  title  in  such  actions; 
but  he  could  relieve  himself  of  the  duty  by  calling  in  the 
reversioner  to  assist  in  the  defense.  This  was  called  "pray- 
ing in  aid."    He  could,  however,  defend  without  calling  in 

82Varney  v.  Stephens,  22  Me.  334;  Austin  v.  Stevens,  24  Me.  526; 
Foster  v.  Marshall,  22  N.  H.  491;  Jackson  v.  Schoonmaker,  4  Johns. 
390;  McCorry  v.  King's  heirs,  3  Humph.  367;  Archer  v.  Jones,  26  Miss. 
583;  Kirksey  v.  Cole,  47  Arkr  504;  Parker  v.  Osnum  (Mich.  1904), 
97  N.  W.  Rep.  756;  Chicago,  P.  &  St.  L.  Ry.  Co.  v.  Vaughan,  206 
111.  234,  69  N.  E.  Rep.  113.  No  adverse  possession  by  a  grantee  can  be 
predicated  during  the  life  of  the  life  tenant.  Hauser  V.  Craft,  134  N.  C. 
319,  46  S.  E.  Rep.  756;  Beatty  v.  Clymer  (Tex.  1903),  75  S.  W.  Rep. 
540;  Hamilton  r.  Wickson  (Mich.  1902),  90  N.  VV.  Rep.  1032;  Hall 
V.  French,  165  Mo.  430,  65  S.  W.  Rep.  769;  Cook  v.  Collier  (Tenn. 
1901),  62  S.  W.  Rep.  658.  Where  land  was  devised  to  two  for  life, 
with  remainder  to  the  heirs  of  one,  the  possession  of  a  grantee  of  all 
but  one  of  such  remaindermen  held  not  adverse  as  to  him  until  the 
death  of  both  life  tenants.  Bullin  V.  Hancock  (N.  Car.),  50  S.  E.  Rep. 
621. 

83  Williams  v.  Caston,  1  Strobh.  130.  See  Moore  v.  Luce,  29  Pa.  St. 
263. 


§    54  LIFE   ESTATES.  [PAHT   I. 

such  assistance,  and  the  judgment  would  be  equally  con- 
clusive against  the  reversioner.'*  These  actions  have  now 
been  abolished  in  England  and  in  this  country,  and  since 
the  principle  did  not  prevail  in  any  other  forms  of  actions, 
a  judgment  for  recovery  of  land  only  affects  the  parties  to 
the  suit.*^ 

§  54.  Apportionment,  between  life  tenant  and  reversioner  of 
incumbrances. —  The  life  tenant  is  bound  to  pay  all  ihe  accru- 
ing interest  on  existing  incumbrances  upon  the  estate ;  but 
he  is  not  compelled,  as  against  the  reversioner,  to  pay  oif  the 
principal  of  the  debt.  The  payment  of  the  principal  falls 
upon  the  reversioner.*®  If  the  life  tenant  pays  off  the  en- 
tire debt,  he  becomes  a  creditor  of  the  reversioner  for  the 
share  of  the  latter,  and  vice  versa.  The  payment  is,  in  such 
a  case,  apportioned  between  them.     The  tenant  would  have 

34  1  Prest.  Est.  207,  208;  1  Washburn  on  Real  Prop.  73,  74,  122. 

33  1  Spcnce  Eq.  Jur.  225;  1  Washburn  on  Real  Prop.  122,  123. 

30  1  Story  Eq.,  Sec.  486 ;  4  Kent's  Com.  76 ;  Kensington  V.  Bouverie, 
31  Eng.  Law  &  Eq.  345;  Mosely  v.  Marshall,  25  Barb.  42;  Doane  V. 
Doane,  46  Vt.  496;  Warley  v.- Warley,  1  Bailey  Eq.  397.  But  this  is 
not  a  personal  claim  against  the  life  tenant,  which  the  incumbrancer 
can  enforce.  He  is  only  obliged  to  pay  the  interest,  if  he  desires  to  save 
the  estate  from  forfeiture.  Morley  v.  Sanders,  L.  R.  8  Eq.  594;  Ken- 
sington V.  Bouverie,  supra;  Doane  V.  Doane,  supra;  Plympton  v.  Bos- 
ton Dispens.,  106  Mass.  544;  Downing  v.  Hartshorn  (Neb.  1903),  95 
N.  W.  Rep,  801;  Tyndall  v.  Peterson,  99  N.  W.  Rep.  659;  Parrish  v. 
Ross  (Ky.),  44  S.  W.  Rep.  134;  Bowen  v.  Brogau,  119  Mich.  218,  77 
N.  W.  Rep.  942.  It  is  different  in  respect  to  the  liability  of  the  tenant 
for  life  for  accruing  taxes.  These  he  is  obliged  to  pay;  if  he  does  not, 
and  purchases  the  tax  title  given  for  default  of  taxes,  he  cannot  set 
it  up  in  opposition  to  the  reversioner.  Cairns  v.  Chabert,  3  Edw.  Ch. 
312;  Fleet  r.  Dorlond,  11  How.  Pr.  489;  Patrick  V.  Sherwood,  4  Blatchf. 
\\2;  Crawford  v.  Meis  (Iowa  1904),  123  Iowa  610,  99  N.  W.  Rep.  186, 
60  L.  R.  A.  154;  Pruitt  v.  Holly,  73  Ala.  369;  Varney  v.  Stevens,  22 
Me.  331;  Defreese  v.  Lake,  109  Mich.  415,  67  N.  W.  Rep.  505,  63 
Amer.  St.  Rep.  584,  32  L.  R.  A.  744;  Stewart  v.  Matheny,  GO  Miss.  21 
5  So.  Rep.  387,  14  Amer.  St.  Rep.  538;  Trimmer  v.  Dorden,  61  S.  C. 
220,  39  S.  E.  Rep.  373;  Hall  t\  French,  165  Mo.  430,  65  S.  W.  Rep.  769; 
.TeflTers  v.  Sydnam  (Mich.  1902),  89  N.  W.  Rep.  42. 
64 


CII.    VI.]  LIFE   ESTATES.  §    54 

to  pay  such  a  sum,  as  would  equal  the  present  value  of  the 
amount  of  interest  he  would  probably  have  paid  during  his 
life,  if  the  mortgage  had  continued  so  long  in  existence,  esti- 
mating his  probable  length  of  life  by  the  ordinary  tables  of 
mortality.  The  balance,  after  deducting  this  sum,  would 
be  the  amount  due  from  the  reversioner.^^  Formerly  it  was 
arbitrarily  apportioned  between  them,  the  tenant  paying  one- 

37  Saville  v.  Saville.  2  Atk.  403 ;  Eastabrook  v.  Hapgood,  10  Mass. 
315,  note;  Foster  v.  Hilliard,  1  Story,  87;  Newton  V.  Cook,  4  Gray,  46; 
Gibson  r.  Crehore,  5  Pick.  146;  Bell  V.  Mayor  of  New  York,  10  Paige 
Ch.  71;  House  r.  House,  lb.  158;  Swaine  v.  Perine,  5  Johns.  Ch.  482; 
Cogswell  r.  Cogswell,  2  Edw.  Ch.  231 ;  Dorsey  v.  Smith,  7  Har.  &  J.  367; 
Snyder  r.  Snyder,  6  Mich.  470;  Abercronibie  f.  Riddle,  3  Md.  Ch.  324; 
Tyndall  r.  Peterson  (Neb.  1904),  99  N.  W.  Rep.  659.  The  tables  usually 
employed  are  Wiggleworth's  and  the  Carlisle  tables,  the  latter  being 
considered  the  more  accurate. 

The  following  algebraic  formula  will  be  very  helpful,  if  not  actually 
necessary,  to  an  accurate  computation  of  the  tenant's  share  of  contri- 
bution : 

_S 


S  (  (H-r)n_i  ^ 
"f  (  (l+r)n  5 


p  =  amount   of  contribution. 

8  z=  annual  interest. 

r  =  rate  per  cent,  of  interest. 

n  =  number  of  years  of  duration  of  life. 
The  calculation  with  the  aid  of  this  formula  can  be  simplified  by  the 
use  of  logarithms. 

When  it  is  stated  in  the  text,  that  the  reversioner  is  obliged  to  pay 
the  balance  remaining,  after  deducting  the  sum  to  be  liquidated  by  the 
tenant  for  life,  it  is  not  meant  that  he  is  under  a  personal  obligation 
to  pay  it.  He  may  refuse,  and  allow  the  tenant  for  life  to  enforce  the 
incumbrance  against  him.  See  post.  Sec.  149.  The  tenure  existing 
between  them  only  prevents  the  tenant  from  holding  the  incumbrance, 
so  acquired,  adversely  to  the  reversioner,  if  he  should  desire  to  obtain 
the  benefit  of  the  purchase  by  contributing  his  share  towards  the  ex- 
penses. Foster  v.  Hilliard,  1  Story  77;  Davies  v.  Myers,  13  B.  Mon.  511. 
In  Nebraska  it  is  held  that  a  life  tenant  who  pays  off  an  encumbrance, 
will  be  entitled  to  be  reimbursed  by  the  remainderman  for  the  amount 
paid,  less  such  sum  as  will  equal  the  present  value  of  the  annual  in- 
stallments of  interest  he  would  have  paid,  during  his  life,  if  the  en- 
cumbrance had- so  long  continued,  with  lawful  interest  on  the  residue, 
so  aieertained,  from  the  date  of  piyment.  Tyndall  v.  Peterson  (Neb. 
1904).  99  N.  W.  Rep.  659. 

5  65 


§    55  I^IPE   ESTATES.  [PARl    1. 

third,  and  the  reversioner  two-thirds.  But  this  rule  h  > 
now  generally  been  superseded  by  the  rule  of  apportiou- 
ment,  just  explained.'* 

§  56.  Same  —  Of  rent. —  It  was  the  common-law  rule  thai, 
if  a  tenant  for  years  was  ousted  by  one  holding  a  bett(;r 
title  before  the  expiration  of  his  lease,  or  between  the  days 
of  payment  of  his  rent,  he  was  not  liable  for  any  rent,  since 
the  rent  could  not  be  apportioned  to  the  time  during  which 
he  enjoyed  the  possession  under  the  lease.  So,  if  a  tenant 
for  life  grants  a  lease  for  years,  the  rent  to  be  paid  on  a 
fixed  day,  and  he  dies  before  the  rent  becomes  due,  his 
personal  representative  would  have  no  right  of  action  for 
rent  accruing  between  the  last  pay-day  and  the  day  of  his 
death."  And  if  the  lease  was  given  by  virtue  of,  and  under, 
a  power,  so  that  it  did  not  terminate  with  the  death  of  the 
life  tenant,  the  entire  rent  would  be  payable  to  the  rever- 
sioner, and  the  personal  representatives  of  the  life  tenant 
would  get  nothing.  This  rule  was  so  strictly  enforced  that 
in  one  case  the  rent  lacked  one  hour  of  falling  due,  whei 
the  life  tenant  died,  and  the  reversioner  took  the  rent.***     Bi.t 

S8  1  Story  Eq.  487.  See  Jones  v.  Sherrard,  2  Dev.  &  B.  Ch.  171/; 
Downing  v.  Hortshorn  (Neb.  1903),  C5  N.  W.  Rep.  801;  Tyndall  r. 
Peterson,  99  N.  W.  Rep.  659;  Parrish  v.  Ross,  44  S.  W.  Rep.  134; 
Bowen  v.  Brogau,  119  Mich.  218,  77,  N.  W.  Rep.  942.  But  it  is  si  ill 
the  rule  of  law  in  South  Carolina,  that  the  tenant  is  to  pay  one-thii  1. 
and  the  reversioner  two-thirds.  Wright  v.  Jennings,  1  Bailey,  277.  in 
Garland  v.  Crow,  2  Bailey,  24,  the  court  say:  "In  contemplation  if 
law,  an  estate  for  life  is  equal  to  seven  years'  purchase  of  the  fee.  '.'o 
estimate  the  present  value  of  an  estate  for  life,  interest  must  be  cori- 
puted  on  the  value  of  the  whole  property  for  seven  years;  and  perhafyy. 
interest  on  the  several  sums  of  annual  interest  from  the  present  time 
to  the  periods  at  which  they  respectively  fall  due,  ought  to  be  abated  " 
Following  this  rule,  and  calculating  the  interest  at  seven  per  cent.,  it 
(vould  be  a  little  more  than  thirty-five  per  cent,  of  the  value  of  tne 
estate.     See  post.  Sec.   104. 

8»2  Bla.  Com,  124;  1  Washburn  on  Real  Prop.  126;  Fitchburg  Cotton 
Co.  r.  Melvin,  15  Miss.  268;  Perry  v.  Aldrich,  13  N.  H.  343;  Hoag- 
land  V.  Crum,  112  111.  365    (.55  Am.  Rep.  424).     See  post,  Sec.   149. 

♦0  Strafford  v.  Wentworth,  1  P.  Wms.  180;  Rickingham  v.  Penrice,  /6. 
66 


CH.  VI.]  LIFE  ESTATES.  §    56 

this  injustice  of  the  common  law  has  now  been  remedied  by 
statutory  changes,  so  that  now  generally,  the  rent  is  appor- 
tioned between  the  life  tenant  and  reversioner,  giving  each 
his  pro  rata  share  according  to  the  time  of  enjoyment  of  the 
lease  before,  and  after  the  tenant's  death.  And  the  per- 
sonal representatives  of  the  life  tenant  may  sue  the  tenant 
for  years  for  the  rent  which  may  be  apportioned  to  him.*^ 

§  56.  Claim  for  improvements. —  The  tenant  for  life  has  no 
claim  for  any  improvements  which  he  may  have  made  upon 
the  premises.  He  is  bound  to  keep  the  premises  in  repair, 
but  is  under  no  legal  obligation  to  undertake  any  improve- 

178;  1  Washburn  on  Real  Prop.  127;  post.  Sec.  149.  In  England  by  the 
Settled  Estates  Act,  1877,  every  tenant  for  life,  unless  expressly  declared 
to  the  contrary  in  the  deed  to  him,  may  demise  the  premises  for 
twenty-one  years,  which  shall  not  determine  at  the  death  of  the  tenant, 
provided  the  lease  takes  effect  in  possession  within  one  year  after  its 
execution,  and  the  rent  reserved  is  made  an  incident  of  the  reversion. 
Williams  on  Real  Prop.  (,5  ed.)  26,  27.  But  in  the  United  States,  as 
a  general  rule,  there  are  no  such  statutes,  and  an  express  power  to  make 
leases  is  necessary,  in  order  to  have  the  term  continue  after  the  ex- 
piration of  the  life  estate. 

♦1  Williams  on  Real  Prop.  27;  1  Washburn  on  Real  Prop.  127;  Price 
r.  Pickett,  21  Ala.  741;  3  Kent's  Com.  469,  470.  Under  the  Iowa  code, 
where  the  life  tenant  leased  a  farm  for  a  year  and  died  within  four 
months,  his  executor  cannot  recover  any  portion  of  the  rent,  in  the 
absence  of  a  showing  of  what  proportion  had  then  accrued,  or  that  any 
rer.t  had  then  accrued.  Gudgel  v.  Southerland  (1902),  90  N.  W.  Rep. 
623.  A  lease  of  a  life  tenant,  under  the  West  Virginia  statute,  in  case 
of  the  life  tenant's  death,  is  continued  in  effect  until  the  end  of  the 
current  year,  unless  revived  by  the  attornment  of  the  tenant  and  the 
affirmation  of  the  remainderman.  Kolden  V.  Boring  (1903),  52  W.  Va. 
37,  43  S.  W.  Rep.  86.  Under  the  Tennessee  Code,  a  recovery  of  rent 
due  on  the  termination  of  the  life  estate,  may  be  had,  but  the  creation 
of  a  lease  to  extend  beyond  the  life  estate  is  not  authorized.  Collins 
r.  Crownover  (1900),  57  S.  W.  Rep.  357.  See  also,  Hoagland  r.  Crum, 
113  111.  .365,  55  Amer.  St.  Rep.  424;  Lowery  v.  Reef  (Ind.),  27  N.  E. 
Rep.  626;  Carmen  V.  Mosier,  105  Iowa,  367,  75  N.  W.  Rep.  323;  Outh. 
man  r.  Vallery,  51  Neb.  824.  71  N.  W.  Rep.  734;  Fields  v.  Bush.  94 
Oa.  064,  21  S.  E.  Rep.  827;  Lehndorf  v.  Cope,  122  111.  317,  13  N.  E.  Rep. 
505, 

67 


I   57  lAFE   ESTATES.  [PART   I. 

ments.  If  he  does,  it  is  a  voluntary  act  of  his  own,  which 
pives  ruse  to  no  claim  a<?ainst  the  reversion  for  the  payment 
of  his  share  of  the  expenses/-  On  the  other  hand,  the  tenant 
for  life  is  obligred  to  pay  all  the  taxes  of  every  kind  which 
may  be  assessed  upon  tlie  land  *^  and,  if  Jie  fails  to  do  so, 
a  receiver  may  be  appointed  to  take  charge  of  the  estate, 
and  pay  the  taxes  out  of  accruing  rents  and  profits.**  If 
the  life-estate  is  held  in  trust,  the  trustee  must  charge  the 
life-estate  with  the  expense  of  the  administration.*^ 

§  57.  Estovers. —  This  word  signifies  the  timber  that  a 
tenant  is  allowed  to  cut  upon  the  land  for  use  upon  the  prem- 
ises, and  for  keeping  them  in  repair.  They  were  divided  by 
the  common  law  into  three  kinds,  viz. :  house-hote,  plough- 
bote,  and  hay-bote.  Ilouse-bote  included  the  wood  necessary 
for  the  repair  of  the  buildings  and  for  the  purpose  of  fuel. 
Plough-bote  covered  such  as  was  needed  for  the  manufacture 
or  repair  of  all  instruments  of  husbandry;  while  hay-bote 
was  what  was  used  in  the  erection  and  maintenance  of  fences 
and  hedges.  The  tenant,  whether  he  is  one  for  life,  or  for 
years,  has  this  right  as  a  compensation  for  the  duty  of  keep- 

■»2  1  Washburn  on  Real  Prop.  123 ;  Parsons  v.  Winslow,  16  Mass.  361 ; 
Sohier  v.  Eldridge,  103  Mass.  351;  Corbet  V.  Laurens,  5  Rich.  Eq.  301; 
Elam  r.  Parkhill,  60  Tex.  581 ;  Van  Bibber  v.  Williamson,  37  Fed.  Rep. 
756;  Hancox  v.  Meeker,  95  N.  Y.  528;  Trimmer  v.  Dorden,  61  S.  C. 
220.  39  S.  E.  Rep.  373;  Pulse  v.  Osborne,  60  N.  E.  Rep.  374;  Brodie  V. 
Parsons  (Ky.),  64  S.  W.  Rep.  426;  but  see  apparently  contra,  Appeal 
of  Datesman,  127  Pa.  St.  348. 

♦••iReyburn  V.  Wallace,  93  Mo.  326. 

<*  Varney  r.  Stevens,  22  Me.  331;  Cairns  v.  Chabert,  3  Edw.  Ch.  312; 
Prettyman  v.  Walston,  34  111.  192;  McCook  v.  Harp  (Ga.),  7  S.  E.  Rep. 
174;  Stewart  v.  Matheny  (Miss.),  5  So.  Rep.  387;  see  In  re  Detmole,  4 
N.  Y.  Supp.  903;  Pruitt  v.  Holly,  73  Ala.  .369;  JeflFers  v.  Sidman  (Mich. 
1902),  89  N.  W.  Rep.  42;  Hall  v.  French,  165  Mo.  430,  65  S.  W.  Rep. 
769.  A  life  tenant's  agreement  to  buy  improvements,  erected  by  his 
lessee,  is  not  binding  on  the  remainderman.  Chilvers  v.  Race,  196  111. 
71.  63  \.  E.  Re,n.  701. 

«•'•  Cammann  r.  Cammann,  2  Demarest  (N.  Y.),  211. 

68 


CH.    VI.]  LIFE   ESTATES.  §.  57 

ing  the  premises  in  repair  and  so  does  his  assignee.**  But 
the  right  is  limited  to  only  what  is  reasonably  necessary  for 
present  use.  If  the  tenant  exceeds  this  amount,  and  cuts 
timber,  for  the  purpose  of  sale,  or  even  cuts  a  reasonable 
amount  of  wood,  which  is  not  suitable  for  estover,  and  ex- 
changes it  for  what  is,  he  is  deemed  guilty  of  waste,  and 
is  liable  to  the  reversioner  for  damages.*^  Nor  can  he  use 
them  on  any  other  place  but  the  one  from  which  they  are 
taken.  Thus  a  widow,  who  had  two  places  set  out  to  her 
as  dower  out  of  two  separate  estates,  was  not  allowed  to  cut 
wood  on  one  place  for  use  on  the  other,  even  though  the 
latter  has  no  woodland.  But  if  she  obtained  both  parcels 
of  land  from  the  same  estate,  it  would  not  be  waste  for  her 
to  use  wood  on  one,  which  was  cut  on  the  other.**  In  Eng- 
land the  rule  in  regard  to  the  right  of  estovers  is  much 
stricter  than  it  is  in  this  country,  on  account  of  the  difference 
in  the  economic  necessities  of  the  two  countries.  In  this 
country  woodland  is  very  abundant,  and  what  would  be 
waste  in  England,  would  not  necessarily  be  so  here.  The 
rule  as  applied  in  this  country  is  that  the  life  tenant  may 
cut  as  much  timber  as  he  may  need  for  use  upon  the  prem- 
ises, provided  it  does  not  materially  injure  the  value  of  the 
reversion.  Nothing  but  actual  injury  would  be  considered 
waste,  and  there  can  be  no  general  rules  laid  down  in  detail 

«  1  Washburn  on  Real  Prop.  128,  129;  Co.  Lit.  416;  2  Bla.  3.5;  Mor- 
ris r.  Knight  (1900),  14  Pa.  Sup.  Ct.  324;  Flener  v.  Flener  (Ky.  1902),. 
69  S.  W.  Rep.  954. 

47  1  Washburn  on  Real  Prop.  129;  2  Bla.  Com.  122;  Webster  v.  Web- 
ster, 33  N.  H.  21;  Smith  v.  Jewett,  40  N.  H.  532;  Hubbard  V.  Shaw.  12 
Allen  122;  White  v.  Cutler,  17  Pick.  248;  Padelford  v.  Padelford.  7 
Pick,  152;  Series  r.  Sarles,  3  Sandf.  Ch.  601 ;  Gardiner  v.  Dering,  1  Paige 
Ch.  573;  Doe  v.  Wilson,  11  East,  56;  Chapman  V.  Epperson  Co.,  101 
111.  App.  161.  A  purchaser  of  timber  wrongfully  cut  would  be  liable  to 
the  remainderman  for  its  value,  if  he  had  notice  of  the  facts,  Berger 
V.  Meehan  Co.   (Ky.  1902),  67  S.  W.  Rep.  1002. 

48  Cook  f.  Cook,  11  Gray  123;  Padelford  v.  Padelford,  7  Pick.  152; 
Phillips  V.  Allen,  7  Allen,  117;  Dalton  v.  Dalton,  7  Ired.  Eq.  197;  Owen 
c.  Hyde,  6  Yerg.  334 ;  Webster  v.  Webster,  33  N.  H.  26. 

69 


§    58  LIFE   ESTATES.  [PART    I. 

which  would  be  applicable  to  each  case  which  may  arise. 
The  determination  of  the  question  depends  upon  the  circum- 
stances of  each  case.*' 

§  58.  Emblements  —  What  they  are. —  Emblements  are  the 
profits  which  the  tenant  of  an  estate  is  entitled  to  receive 
out  of  the  crops  which  he  has  planted,  and  which  have  not 
been  harvested,  when  his  estate  terminates.  Under  the  term 
emblements  are  only  included,  as  a  rule,  such  products  of 
the  soil  as  are  of  annual  growth  and  cultivation.  Such  would 
be  the  different  cereals  and  vegetables,  wheat,  corn,  beans, 
hay,  flax,  potatoes,  melons,  etc.  Hops  are  also  included,  al- 
though they  are  not  planted  annually.^"  But  they  do  not 
include  the  grasses,  which  are  only  planted  perennially,  nor 
the  fruit  of  trees,  because  in  these  cases,  the  tenant  cannot 
expect  to  reap  such  benefit  in  one  year,  and  he  is  aware  of 
the  fact  when  he  plants  them.'^  This  does  not,  of  course, 
refer  to  the  right  which  nurserymen  have  to  trees  and  shrubs, 
which  they  plant  for  the  purpose  of  sale.  As  has  been  shown, 
in  such  cases  the  plants  are  fixtures,  which  he  is  entitled  to 
remove,  tree  and  plant,  as  well  as  the  fruit  thereof.^-  And 
to  entitle  one  to  the  crops,  they  must  be  planted  by  him. 
If  the  crop  has  been  planted  by  another,  the  tenant  will  not 
be  entitled  to  them,  however  much  care  he  may  have  be- 
stowed upon  them."     As  an  incident  to  the  right  of  emble- 

40  Padelford  V.  Padelford,  7  Pick.  152;  Pynchon  v.  Stearns,  11  Mete. 
304;  Webster  v.  Webster,  32  N.  H.  26;  Jackson  v.  Brownson,  7  Johns. 
227;  Crockett,  2  Ohio  St.  180;  Board  Sup.  Warren  Co.  v.  Gans,  80  Miss. 
76;  31  So.  Rep.  539. 

BO  Co.  Lit.  55  a.  b.  note  364;  2  Bla.  Com.  122;  Stewart  v.  Doughty,  9 
Johns.  108 ;  1  Washburn  on  Real  Prop.  132,  133.  See  also  Gardiner  V. 
Tate,  110  Ga.  456,  35  S.  E.  Rep.  697. 

51  1  Washburn  on  Real  Prop.  133;  Reiff  v.  Reiff,  64  Pa.  St.  134;  2 
Bla.  Com.  123;  Evans  v.  Inglehart,  6  Gill  &  J.  1888,  Co.  Lit.  55  b.,  4 
Kent's  Com.  73. 

52  Taylor's  L.  &  T.  81;  1  Washburn  on  Real  Prop.  11,  133;  Penton  v. 
Robart,  2  East  88;  Miller  v.  Baker,  1  Mete.  27;  Whitmarsh  v.  Walker, 
lb.  313;   Wyndham  v.  Way,  4  Taunt.  316. 

53  Grantham  v.  Hawlcy,  Hob.  132;  Stewart  v.  Doughty,  9  Johns.  108; 

70 


CH.    VI.]  LIFE   ESTATES,  §    59 

ments,  the  tenant  or  his  representatives  have  a  right  of  entry 
upon  the  land,  after  the  termination  of  the  tenancy,  for  the 
purpose  of  attending  to  the  crop  while  growing,  and  for 
harvesting  it  when  ripe.  The  right  of  ingress  and  egress, 
however,  is  limited  to  what  is  necessary  for  these  purposes.^* 
But  it  has  been  asserted  and  claimed  by  some  authorities, 
tliat  the  tenant  would  be  liable  for  rent  for  such  occupation 
of  the  land.''  It  does  not,  however,  seem  to  be  the  general 
custom  to  pay  it  or  demand  it.'^  In  some  of  the  States  it 
i»  provided  by  statute  that  the  tenant  must  pay  rent  for 
tlie  time  during  which  he  holds  over.'^  The  common  law  as 
tn  what  constitutes  emblements,  and  the  extent  of  the  right, 
has  been  very  accurately  and  definitely  settled.  But  it  will 
b3  found  that  local  usages  and  customs  will  cause  the  local 
law  to  vary  somewhat  from  the  common  law.  Still  the  more 
important  principles  are  found  to  be  uniformly  applied 
throughout  the  country."* 

§  59.  Same  —  Who  may  claim  them. —  In  order  that  a 
tenant  may  claim  emblements,  he  must  show  that  his  es- 
tate was  one  of  uncertain  duration.  This  would,  of  course, 
iuclude  the  representatives  of  all  tenants  for  life,  whether 
they  are  conventional  or  legal  life  estates,  and  because  they 
constitute  the  larger  class  of  those  who  are  entitled  to  them, 
the  subject  has  been   discussed  in   this  connection.'"     Ten- 

iiee  V.  Young,  1  Hayw.  17;  Thompson  V.  Thompson,  7  Munf.  514;  Price 
1.  Pickett,  21  Ala.  741, 

54  1  Washburn  cm  Real  Prop.  136,  137;  Forsythe  V.  Price,  8  Watts 
£82;  Humphries  v.  Humphries,  3  Ired.  362. 

08  1  Washburn  on  Real  Prop.  137. 

5«McClellan  v.  Krall,  43  Kan.  216, 

"King  V.  Foscue,  91  N.  C.  116. 

r.8  1  Washburn  on  Real  Prop.  137.  Tn  several  of  the  States,  the  tenant 
for  years  under  special  circumstances  is  by  local  custom  allowed  cmble- 
rients,  although  generally,  as  will  be  explained  in  Sec.  59,  tenants  for 
jiears  have  no  right  to  emblements.  See  Van  Doren  v.  Everitt,  5  N.  J.  L. 
460;  Howell  v.  Schenck,  24  N,  J.  L.  89;  Templeman  v.  Biddle,  1  Harr. 
522;  Dorsey  r.  Eagle,  7  Gill  &  J.  331;  Foster  v.  Robinson,  6  Ohio  St.  95. 

60  Taylor's  L.  &  T.  81;   Chesley  v.  Welch,  37  Me.  106;   Kittredge  v. 

71 


§   59  LIFE   ESTATES.  [PART  1. 

ants  at  will  also  have  the  right,***  but  not  tenants  for  years 
or  at  snff^rance."^  And  as  an  outcome  of  the  law  of  emble- 
ments the  executors  of  the  tenants  in  fee  are  entitled  to  the 
crops  if  they  are  ripe  for  harvest,  in  preference  to  the  heirs."- 
But  if  the  estate  is  terminated  througrh  the  fault  of  the  ten- 
ant, as  when  he  abandons  the  premises,  or  voluntarily  de- 
stroys his  estate,  by  failure  to  perform  a  condition,  or  where 
the  party  is  in  wrongful  possession,  without  color  of  title, 
he  is  not  entitled  to  emblements.®^  Thus,  a  widow  has  no 
claim  to  emblements,  where  she  terminates  her  tenancy  dur- 
ing widowhood  by  marriage  ;°*  nor  has  a  mortgagor,  where 
the  mortgage  is  foreclosed  by  the  mortgagee,  since  he  could 
have  avoided  its  destruction  by  payment  of  the  mortgage."' 
But  if  the  purchaser  under  a  foreclosure  sale,  permits  the 
mortgagor,  or  one  claiming  under  him,  to  retain  possession 

Woods,  3  X.  H.  503;  Whitmarsh  v.  Cutting,  10  Johns.  360;  Graves  v. 
Weld,  5  B.  &  Ad.  105;  Debow  V.  Colfax,  10  N.  J.  L.  128;  Harris  v.  Car- 
son, 7  Leigh  632;  Spencer  v.  Lewis,  1  Houst.  223;  Haslett  v.  Glesin,  7 
Har.  &  J.  17;  King  v.  Whittle,  73  Ga.  482. 

60  Davis  V.  Thompson,  13  Me.  209;  Sheeburn  V.  Jones,  20  Me.  70; 
Chandler  V.  Thurston,  10  Pick.  205;  Stewart  v.  Doughty,  9  Johns.  108; 
Harris  v.  Frink,  49  N.  Y.  24. 

61  Doe  r.  Turner,  7  M.  &  W.  226;  Wheeler  v.  Kirkendall,  67  Iowa  612. 

62  Penhallow  V.  Dwight,  7  Mass.  34 ;  Kingsley  V.  Holbrook,  45  N.  H. 
319;  Howe  V.  Batchelder,  49  N.  H.  208;  Pattison's  Appeal,  61  Pa.  St. 
29.  But  they  will  pass  with  the  land  under  a  devise.  Bradner  v.  Faulk- 
ner, 34  N.  Y.  349.  In  Mississippi  a  contrary  rule  is  maintained,  and 
the  crops  pass  to  the  heir  upon  the  death  of  the  tenant  in  fee.  Mc- 
Cormick  l".  McCormick,  40  Miss.  763.  See  also  on  the  general  subject, 
2  Redf.  on  Wills,  143.  As  to  the  right  of  a  vendee  of  the  tenant  to 
emblements,  see  Sievers  v.  Brown,  34  Oregon  454,  56  Pac.  Rep.  171,  45 
L.  R.  A.  642. 

63  2  Bla.  Com.  123;  Chesley  v.  Welch,  37  Me.  106;  Chandler  V.  Thurs- 
ton, 10  Pick.  210;  Whitmarsh  v.  Cutting,  10  Johns.  360;  Rowell  v.  Klein, 
44  Ind.  290;  Richard  v.  Liford,  11  Rep.  51;  McLean  v.  Bovee,  24  Wis. 
295. 

0*  Debow  V.  Colfax,  10  N.  J.  L.  128;  Hawkins  v.  Skegg,  10  Humph.  31. 

65  Doe  V.  Mace,  7  Black  2;  McCall  v.  Lenox,  9  Serg.  &  R.  302;  Jones 
r.  Thomas,  8  Blackf.   428.     But  see.   World   Bldg.   Co.   v.  Martin,   151 
Ind.  630,  52  N.  E.  Rep.  198;  Varnun  v.  Winslow,  106  Iowa  287,  76  N.  W. 
Rep.  708. 
72 


CH.    VI.]  LIFE  ESTATES.  §    60 

for  any  length  of  time,  and  plant  crops,  as  a  tenant  at  will 
he  would  have  a  right  to  the  emblements.""  The  right  to 
emblements  is  not  only  enjoyed  by  the  parties  above  enu- 
merated, but  also  by  their  assignees  and  sublessees,  un- 
less the  tenant  is  restricted  from  alienating  the  land."^  And 
very  often  sublessees  and  assignees  would  be  entitled  to 
emblements,  when  the  original  parties  would  not.  Thus,  if  a 
widow,  having  an  estate  during  widowhood,  leases  the  prem- 
ises, and  then  marries,  her  tenant  would  be  entitled  to  emble- 
ments, while  she  would  not  have  been  if  she  had  been  in 
possession.'^ 

§  60.  Definition  and  history  of  waste. —  Every  tenant  of  a 
particular  estate  is  prohibited  from  doing  anything  with 
the  land  which  would  constitute  waste  in  the  legal  accep- 
tation of  the  term.  The  subject  applies,  therefore,  to  all  ten- 
ants, whether  for  life  or  for  years,  or  at  sufferance.  In  early 
times  this  disability  was  attached  by  law  only  to  estates  of 
dower  and  curtesy,  it  being  supposed  that,  since  they  were 
created  by  the  act  of  the  law,  the  law  should  in  all  cases 
provide  for  the  due  protection  of  the  inheritance.  But  in 
the  case  of  conventional  estates  less  than  a  fee,  if  the  grantor 
did  not  expressly  provide  such  a  protection,  it  was  his  own 
fault,  and  he  was  left  without  a  remedy.  Subsequently,  by 
the  statute  of  Marlbridge,  the  disability  of  committing  waste 

••Allen  V.  Carpenter,  15  Mich.  38.  And  the  same  rule  applies  to  a 
mortgagor's  tenant,  who  holds  subject  to  the  mortgage.  Mayo.  f. 
Fletcher,  14  Pick.  525;  Lynde  v.  Rowe,  12  Allen  101;  Lane  r.  King, 
8  Wend.  584.  But  where  the  crops  are  already  harvested,  when  the 
mortgage  is  foreclosed,  the  tenant  is  entitled  to  them;  they  do  not 
pass  to  the  purchaser  under  the  mortgage.     Johnson  r.  Camp,  51  III.  220, 

67  King  r.  Whittle,  73  Ga.  482;  King  v.  Foscue,  91  N.  C.  116. 

«8Bla.  Com.  124;  Bulwer,  2  B.  &  Aid.  470;  Davis  v.  Eyton,  7  Bing. 
154;  Bevans  V.  Briscoe,  4  Har.  &  J.  139;  contra,  Oland's  Case,  5  Rep. 
116;  Debow  V.  Colfax,  10  N.  J.  L.  128;  Bittinger  r.  Baker,  29  Pa  St.  70. 
See  also  contra,  not^  1,  supra,  in  reference  to  mortgagors'  tenant.  As  to 
right  of  assignee  for  creditors,  to  emblements,  ace  Huber's  Estate,  10 
Lane.  L.  Rev.  45. 

73 


§    61  LIFE   ESTATES.  [pART   I, 

was  made  an  ordinary  and  general  incident  to  all  kinds  of 
estates  for  life  and  for  years.  And  the  statute  of  Gloucester 
imposed  upon  the  guilty  party  the  penalty  of  treble  dam- 
ages, together  with  the  forfeiture  cf  his  estate.""  Waste  is 
Jin  unlawful  act  or  omission  of  duty,  which  results  in  per- 
manent injury  to  the  inheritance.  It  may  consist  in  either 
diminishing  its  value,  in  increasing  its  burdens,  or  destroy- 
ing and  changing  the  evidences  of  title  to  the  inheritance.^" 
"Waste  may  therefore  be  voluntary,  as  by  an  act  of  commis- 
sion, and  involuntarily,  by  an  act  of  omission.^^ 

§  CI.  What  acts  constitute  waste  —  General  rule. —  Whether 
a  particular  act  constitutes  waste  is  a  question  of  fact  for 
the  jury  to  determine.  If  it  does  damage  to  the  rever- 
sioner, and  is  not  one  of  the  ordinary  uses,  to  which  the 
land  is  put,  it  is  a  waste.  And  the  same  act  might  be  waste 
in  one  part  of  the  country,  while  in  another  it  is  a  legitimate 
use  of  the  land.  The  usages  and  customs  of  each  com- 
munity enter  very  largely  into  the  settlement  of  this  ques- 
tion." 

o»  1  Washburn  on  Real  Prop.  139,  140.  At  common  law  only  tenants 
by  act  of  the  law  could  commit  waste.  Palmer  f.  Young,  108  111.  App. 
252.  Statutes  providing  for  double  damages  now  exist  in  many  of  the 
United  States.     Isom  i;.  Oil  Co.,  140  Cal.  678,  74  Pac.  Rep.  294. 

TOBla.  Com.  281;  Huntley  v.  Russell,  13  Q.  B.  588;  Doe  v.  Burlington, 
5  B.  &  Ad.  517;  Jones  v.  Chappell,  L.  R.  20  Eq.  539;  McGregor  v.  Brown, 
10  N.  Y.  117;  PrefRt  v.  Henderson,  29  Mo.  327.  And  in  some  cases  the 
law  raises  a  conclusive  presumption  that  the  act  complained  of  is  an 
injury  to  the  inheritance,  and  therefore  constitutes  waste.  McGregor  V. 
Brown,  supra;  Agate  v.  Lowenbein,  57  N.  B.  604.     See  post,  Sec.  62. 

Ti  Bla.  Com.  281 ;  1  Washburn  on  Real  Prop.  140.  Thus,  to  alter  a 
building,  so  as  to  change  the  manner  of  using  it,  is  voluntary  waste. 
To  let  it  fall  into  decay,  is  permissive  or  involuntary  waste.  Converting 
windows  into  doors  is  waste,  in  New  Jersey.  Peer  v.  Wadsworth 
(1904),  58  Atl.  Rep.  379.  Anything  is  waste  which  changes  the  charac- 
ter of  the  inheritance.  Palmer  v.  Young,  108  111.  App.  252.  The  owner 
of  a  contingent  remainder  cannot  sue  for  waste.  ^Taylor  v.  Adams,  93 
Mo.  App.  277;  Palmer  v.  Young,  108  111.  App.  252. 

"See  Drown  r.  Smith,  52  Me.  143;  Jackson  v.  Tibbits,  3  Wend.  341; 
Pynchon  v.  Stearns,  11  Mete.  304;  Lynon's  Appeals,  31  Pa.  St.  46; 
74 


CH.    VI.]  LIFE  ESTATES.  ?    C2 

§  62.  Waste  —  In  respect  to  trees. —  The  tenant  has  no  right 
to  cut  down  any  trees,  or  to  injure  them  in  any  way,  beyond 
the  amount  he  is  entitled  to  as  estovers.  And  at  common  law 
certain  trees,  which  were  used  for  timber,  could  not  be  cut 
for  any  purpose."  But  in  this  country  the  question  would 
depend  upon  whether  the  cutting  of  a  particular  tree  would 
be  consonant  with  good  husbandry,  in  its  relation  to  the  in- 
heritance and  the  surrounding  circumstances.^*     In  the  case 

Webster  v.  Webster,  33  N.  H.  25;  Morehouse  v.  Cotheal,  22  N.  J.  L.  521; 
Jackson  v.  Brownson,  7  Johns.  227;  Sarles  V.  Sarles,  3  Sandf.  Ch.  601; 
Adams  v.  Brereton,  3  Har.  &,  J.  124;  Davis  v.  Gilliam,  5  Ired.  Eq.  311. 

73  2  Bla.  Com.  281;  1  Washburn  on  Real  Prop.  141;  Honywood  V. 
Honywood,  L.  R.  18  Eq.  306.  Mr.  Washburn  mentions  oak,  ash  and  elm. 
as  being  timber  trees  in  all  parts  of  England,  while  others  constitute 
timber  in  some  sections,  and  not  in  other  sections,  according  to  local 
usages  and  customs,  p.  65  supra.  Timber  trees  are  those  which  are 
ussd  for  building  and  repairing  houses.  Chandos  v.  Talbot,  2  P.  Wms. 
606;  Alexander  v.  Fisher,  7  Ala.  514.  The  only  purpose  for  which  the 
tenant  may  cut  timber  is  for  the  repair  of  the  buildings  on  the  land, 
which  be  is  under  obligation  to  keep  in  repair.  22  Vin.  Abr.  453 ;  Doe 
V.  Wilson,  11  East  56.  And  he  cannot  cut  timber  unsuitable  for  repair, 
to  sell  and  with  the  proceeds  to  procure  other  timber  which  is  suitable. 
Chapman  v.  Epperson  Co.  (1902),  101  111.  App.  161;  Berger  V.  Meehan 
Co.  (Ky.  1902),  67  S.  W.  Rep.  1002.     See  ante.  Sec.  57. 

T4Keeler  v.  Eastman,  11  Vt.  293;   Chas.  v.  Hazelton,  7  N.  H.  171 
Hickman  v.   Irvine,  3   Dana   121;    Sarles  v.  Sarles,  3   Sandf.   Ch.  601 
Givens  v.  McCalmont,  4  Watts,  460;  Shine  V.  Wilcox,  1  Dev.  &  B.  Eq 
631;  Smith  v.  Poyas,  2  DeS.  65;  Sayers  v.  Hoskinson,  110  Pa.  St.  473 
Duncome  v.  Felt,  45  N.  W.  Rep.  1004;  Davis  v.  Clark,  40  Mo.  App.  515 
But  it  is  an  almost  universal  rule,  that  shade  and  ornamental  trees 
cannot  be  cut  down  by  the  tenant.     Honeywood  v.  Honeywood,  L.  R.  18 
Eq.  306;  Hawley  v.  Wolverton,  5  Paige,  522;  Dunn  v.  Bryan,  7  Ired. 
Eq.  143;  Marker  V.  Marker,  9  Hare  1.     So  also  is  it  waste  to  cut  young 
trees.     Dunn  v.  Bryan,  supra.     In  conformity  with  the  rule  enunciated 
in  the  text,  it  has  been  held  in  Massachusetts  that  the  cutting  of  oak 
for  firewood  is  not  waste  according  to  the  common  usage  and  custom 
in  that  State.     Padelford  r.  Padelford,  7  Pick.   162.     A  remainderman 
is  held,  in   Roby  r.  Newton    (Ga.),  68  L.  R.  A.  601,  to  bo  entitled  to 
the  forfeiture  of  the   life  tenant's  interest  because  of  waste  only  when 
it  appears  that  there  has  been  both  permissive  and  voluntary  waste  by 
the  tenant,  or  one  for  whom  he  was  responsible,  and  that  the  voluntary 
waste  was  committed  wantonly. 

75 


§  62  UPE  ESTATES.  [PART  ]. 

of  wild  and  uncultivated  lands,  the  tenant  would  have  the 
right  to  clear  the  land  of  the  trees,  whatever  they  may  be, 
if  such  clearing  was  necessary  for  the  purpose  of  cultivating 
it."  And  the  timber  cut  by  the  tenant  in  clearing  belongs 
to  him,  which  he  may  sell  for  his  own  profit.^**  But  in  no 
case  is  the  tenant  allowed  to  cut  timber  for  sale,  unless  this 
is  the  customary  mode  of  using  the  land." 

T5  Drown  r.  Smith,  52  Me.  141;  Keeler  v.  Eastman,  11  Vt.  293; 
Jackson  r.  Brownson,  7  Johns.  227;  Harder  i'.  Harder,  20  Barb.  414; 
Morehouse  v.  Cotheal,  22  N.  J.  L.  521;  Hastings  v.  Crunckleton.  3 
Yeates  261;  Davis  v.  Gilliam,  5  Ired.  Eq.  311;  Woodward  v.  Gates, 
38  Ga.  205;  Adams  v.  Brereton,  3  Har.  &  J.  114;  Crockett  V.  Crockett, 
2  Ohio  St.  180;  I^roffitt  V.  Henderson,  29  Mo.  327.  And  the  same  rule 
is  now  applied  to  a  dowress,  although  formerly  under  the  old  rule,  that 
the  tenant  of  a  particular  estate  could  under  no  circumstances  change 
woodland  into  arable  land,  the  widow  was  held  not  to  have  dower  in 
wild  lands.  4  Kent's  Com.  76;  Ballantine  i".  Poyner,  2  Hayw.  110; 
Perkins  v.  Coxe,  lb.  339;  Hastings  v.  Crunkleton,  3  Yeates,  261;  Owen 
r.  Hyde,  6  Yerg.  334;  Findlay  v.  Smith,  6  Munf.  134;  Alexander  r. 
Fisher,  7  Ala.  514.  See  contra,  Connor  f.  Shepherd,  15  Mass.  164. 
But  it  must  be  with  the  bona  fide  intention  to  clear  the  land.  If  under 
this  pretense,  the  tenant  is  really  cutting  for  the  purpose  of  profiting 
by  the  sale  of  the  wood,  it  will  be  waste,  notwithstanding  the  land  is 
made  more  valuable  by  being  cleared.  See  Kidd  r.  Dennison,  6  Barb.  8 ; 
Davis  f.  Gilliam,  supra. 

7«  Davis  V.  Gilliam,  5  Ired.  Eq.  311;  Crockett  r.  Crockett,  2  Ohio  St. 
180. 

77  Chase  v.  Hazleton,  7  N.  H.  171;  Clcmence  r.  Stcere,  1  R.  I.  272; 
Parkins  r.  Coxe,  2  Hayw.  339;  Kidd  r.  Dennison,  6  Barb.  9;  Davis  v. 
Clark,  40  Mo.  App.  515.  But  if  the  land  is  customarily  used  in  culti- 
vating trees  for  sale,  the  tenant  may  follow  the  custom,  and  continue 
to  cut  and  sell  the  wood.  Bagot  V.  Bagot,  32  Beav.  509 ;  Clemence  f. 
Steere,  supra;  Ballentine  V.  Poyner,  2  Hayw.  110.  So  also  if  the  land 
is  let  with  a  furnace  or  turpentine  still,  wood  may  be  cut  for  use  in 
the  furnace,  or  the  pine  may  be  tapped  for  resin  to  be  used  in  the  still, 
if  that  had  been  the  custom  with  former  owners.  Den  v.  Kenny,  5  N. 
J.  L.  652;  Findlay  r.  Smith,  6  Munf.  134;  Carr  r.  Carr,  4  Dev.  &  B.  179; 
The  unauthorized  cutting  of  timber  by  tenants  has  been  held  to  be 
waste,  in  the  following  recent  cases:  Butts  v.  Fox  (Mo.  1904).  81 
S.  \V.  Rep.  493;  Dix  v.  Jaquay,  88  N.  Y.  S.  228;  94  App.  Div.  554; 
Chapman  v.  Epperson  Co.,  101  111.  App.  161 ;  Bergan  r.  Meehan  Co. 
(Ky.  1902),  67  S.  W.  Rep.  1002;  Morris  v.  Knight,  14  Pa.  Sup.  Ct.  324; 
76 


en.   VI.]  LIFE   ESTATES.  ^    Li 

§  63.  Property  in  timber  unlawfully  cut. —  If  timber  is  un- 
lawfully cut  from  the  premises,  the  reversioner  in  fee  con- 
tinues to  have  the  property  in  it,  and  he  may  recover  dam- 
ages or  the  possession  of  the  timber  and  for  that  purpose  he 
may  maintain  any  of  the  personal  actions  of  trover,  re- 
plevin or  trespass  de  honis.''^  And  the  same  principle  is 
applied  to  any  article  of  a  personal  nature,  which  has  been 
unlawfully  severed  from  the  freehold.^® 

§  64.  Continued  —  In  respect  to  minerals  and  other  deposits. 
—  The  tenant  is  not  permitted  to  dig  and  sell  gravel,  clay 
and  other  deposits,  which  may  be  found  thereon,  or  to  use 
the  clay  for  the  purpose  of  making  bricks.***  If,  however, 
it  had  been  the  custom  with  previous  owners  to  make  such 
use  of  the  land,  the  tenant  may  continue  to  use  what  pits 
and  mines  are  already  opened,  but  he  cannot  open  new 
ones.*^     In  the  case   of  minerals  he  may  follow  the  same 

White  I'.  Fox,  125  N.  C.  544;  34  S.  E.  Rep.  645;  Chase  v.  Driver,  92 
Fed.  Rep.  780,  34  C.  C.  A.  6G8. 

78  Lewis  Bowie's  Case,  11  Rep.  82;  Seagram  V.  Knight,  L.  R.  2  Ch. 
App.  631;  Richardson  t'.  York,  14  Me.  216;  Jones  v.  Hoar,  5  Pick.  285; 
Lane  v.  Thompson,  43  N.  H.  324;  Mooers  v.  Wait,  3  Wend.  104;  Berri- 
mann  v.  Peacock,  9  Bing.  386;  Channon  v.  Patch,  5  B.  &,  C.  897;  Froth- 
ingham  v.  McKusick,  24  Me,  403 ;  Langdon  r.  Paul,  22  Vt.  205. 

79  1  Washburn  Real  Prop.  155.  See  also.  Smith  v.  Smith,  105  Ga. 
106,  31  S.  E.  Rep.  135;  Davis  V.  Gilliam,  40  N.  C.  308;  Davis  t\  Clark, 
40  Mo.  App.  515;  Webster  v.  Peet,  97  Mich.  327;  Modlin  v.  Kennedy,  53 
Ind.  267;  Brashear  v.  Macey,  3  J.  J.  Marsh  93;  Weatherby  v.  Wo(M, 
29  How.  Pr.  404. 

80  Co.  Lit.  53  b;  Huntley  v.  Russell,  13  Q.  B.  572;  Livingston  v.  Rey- 
nolds, 2  Hill  157.  So  also  to  open  new  mines,  or  to  make  excavations 
in  search  for  mines,  would  be  waste,  unless  the  right  is  expressly 
granted.  2  Bla.  Com.  282;  Saunder's  Case,  5  Rep.  12;  Darcy  v.  Askwith, 
Hob.  234;  Stoughton  v.  Leigh,  1  Taunt.  410;  Viner  v.  Vaughan,  2  Beav. 
466;  Irwin  v.  Covode,  24  Pa.  St.  162;  Owings  v.  Emery,  6  Gill  260. 
See  White,  Mines  &  Min.  Rem.,  Sec.  22. 

81  Huntley  v.  Russell,  13  Q.  B,  591;  Moyle  v.  Moyle,  Owen  66;  Knight 
V.  Moseley,  Amb.  176;  Stoughton  v.  Leigh,  1  Taunt.  410;  Kier  v.  Peter- 
son, 41  Pa.  St.  361;  Billings  v.  Taylor,  10  Pick.  460;  Coates  v.  Cheever, 
1  Cow.  460;  Lenfers  v.  Henke,  73  HI.  405;  24  Am.  Rep.  263;  Hendrix 
V.  McBeth,  61  Ind.  473;  28  Am.  Rep.  680. 

77 


§    65  LIFE   ESTATES.  [PART   I. 

vein  and  for  the  purpose  may  make  new  shafts,  railroads, 
and  other  improvements.*^ 

§  65.  Continued  — Managfement  and  culture  of  land. —  At 
common  law  it  was  not  permitted  of  the  tenant  of  a  par- 
ticular estate  to  change  the  character  of  the  land,  as  wood, 
pasture  or  arable  land,  and  put  it  to  a  different  use.  Any 
such  change  in  the  management  or  culture  of  the  land  con- 
stituted waste,  for  which  the  tenant  would  be  answerable 
to  the  reversioner.®'  The  rule,  however,  in  this  country  is, 
that  no  such  change  will  be  waste  unless  it  results  in  a  per- 
manent injury  to  the  inheritance.  In  each  case  it  is  a  ques- 
tion of  fact,  whether  a  particular  act  is  waste,  and  it  is  very 
largely  governed  by  the  usages  and  customs  of  the  place  in 
which  the  question  arises.**     The  tenant,  however,  is  obliged 

82  Clavering  v.  Clavering,  2  P.  Wms.  388 ;  Billings  v.  Taylor,  10  Pick. 
460;  Coates  v.  Cheever,  1  Cow.  460;  Irwin  v.  Covode,  24  Pa.  St.  162; 
Lynn's  Appeal,  31  Pa.  St.  45;  Kier  v.  Peterson,  41  Pa.  St.  361;  Crouch 
V.  Puryear,  1  Rand.  258;  Findlay  v.  Smith,  6  Munf.  134.  Sayers  v. 
Hoskinson,  110  Pa.  St.  473.  A  tenant  for  life  cannot  operate  oil  or 
gas  wells  that  were  not  open  when  he  came  into  possession.  MarshaU 
r.  Mellon,  170  Pa.  St.  371;  Williamson  v.  Jones,  39  W.  Va.  256.  But 
open  oil  or  gas  wells  can  be  worked  by  life  tenant  the  same  as  a 
tenant  without  impeachment  for  waste.  In  re  Chaytors  Set.,  69  L.  J. 
Ch.  837,  2  Ch.  804;  White,  Mines  &  Min.  Rem.,  Sec.  22,  p.  30.  The 
right  to  work  mines  may  either  be  justified  by  the  terms  of  the  settk- 
ment  or  the  fact  that  they  were  opened  when  the  life  estate  attached. 
In  re  Chaytors  settlement  (Eng.  1900),  69  Law.  J.  Ch.  837;  2  Ch.  804. 
But  see  Maher's  Admr.  v.  Maher,  73  Vt.  243,  50  Atl.  Rep.  1063.  A 
devisee  of  a  life  estate,  in  Indiana,  is  entitled  to  the  royalties  from  oil 
wells  opened  by  the  testator's  lessee,  though  after  the  life  estate  accrued. 
Andrews  v.  Andrews  (1903),  67  N".  E.  Rep.  461.  See,  as  to  right  to 
royalty,  in  Texas,  Lone  Acre  Oil  Co.  V.  Swayne  (Tex.  1903),  78  S.  W. 
Rep.  380.  After  the  death  of  the  life  tenant,  his  tenant  would  be  a 
trespasser,  if  he  continued  to  work  the  mines.  Crawford  v.  Forest 
Oil  Co.,  208  Pa.  5,  57  Atl.  Rep.  47;  Eckin  v.  Hawkins,  52  W.  Va.  124. 

83  2  Bla.  Com.  282;  Co.  Lit.  53;  Darcy  v.  Askwith,  Hob.  234a,  1 
Washburn  on  Real  Prop.  145. 

8«Keeler  v.  Eastman,   11  Vt.  293;  Clemence  v.  Steere,  1  R.  I.  272; 
Webster  r.  Webster,  33  N.  H.  25;  Jones  v.  Whitehead,   1  Pars.   304; 
78 


C-I.    VI.]  LIFE  ESTATES.  §    66 

to  use  the  land  in  the  manner  required  by  the  rules  of  good 
husbandry,  and  it  will  be  waste  if  he  permits  the  arable  or 
meadow  land  to  be  overgrown  with  brushwood,  or  if  he  ex- 
hausts the  lands  by  unwise  tillage.^^ 

§  66.  Continued  —  In  respect  to  buildings. —  In  like  manner 
at  common  law,  the  strict  rule  was  applied,  that  any  change 
in  the  character  of  the  building,  even  though  it  resulted  in 
a  benefit  to  the  inheritance,  would  be  considered  waste.  Thus 
the  removal  of  wainscots,  the  opening  of  new  doors  and  win- 
dows, as  well  as  the  more  important  change  of  the  building 
from  a  dwelling  house  to  a  store,  or  a  change  in  the  location 
of  the  building,  was  held  to  be  waste.*"  A  more  liberal  rule 
is  now  applied,  and  actual  damage  must  be  shown,  in  order 
that  the  action  might  lie.*^     And  although  even  now  a  ma- 

Sarles  v.  Sarles,  3  Sandf.  601;  Owen  v.  Hyde,  6  Yerg.  334;  Proffitt  f 
Henderson.  29  Mo.  327;  Sayres  v.  Hoskinson,  110  Pa.  St.  473. 

85  Clemens  v.  Steere,  1  K.  I.  272 ;  Clark  v.  Holden,  7  Gray  8 ;  Sarles  r. 
Sarles,  3  Sandf.  Ch.  601.  Likewise  the  removal  of  grasses,  manure 
made  upon  the  land,  and  the  digging  of  turf,  which  by  the  rules  of 
good  husbandry  should  be  left  upon  the  land  to  enrich  it,  would  be 
waste.  Sarles  v.  Sarles,  supra;  Daniels  V.  Pond,  21  Pick.  371;  Moulton 
V.  Robinson,  27  N.  H.  550;  Plumer  v.  Plumer,  30  N.  H.  558;  Middlebrook 
V.  Corwin,  15  Wend.  169;  Lewis  V.  Jones,  17  Pa.  St.  262;  Harris  V.  Mins, 
20  W.  R.  999.  Where,  in  an  action  for  waste,  committed  by  the  as- 
signee of  the  life  tenant,  it  was  shown  not  only  that  the  orchards  and 
sugar  bush  had  been  cut,  but  that  the  farm  had  been  permitted  to 
grow  up  with  weeds  and  that,  while  capable  of  supporting  20  cows  and 
producing  1,500  bushels  of  grain,  before  the  waste,  it  was  thereafter 
practically  worthless,  the  measure  of  damages  was  held  to  be  the 
difference  in  value  of  the  farm,  per  acre,  before  and  after  the  waste. 
Cole  r.  Bickelhaupt   (N.  Y.  1901),  71  N.  Y.  S.  636;  64  App.  Div.  6. 

8«Co.  Lit.  53a,  note  344;  City  of  London  V.  Greyme,  Cro.  Jac.  181; 
1  Washburn  on  Real  Prop.  146;  Huntley  i'.  Russell.  13  Q.  B.  588; 
Greene  v.  Cole,  2  Saund.  252;  Jackson  v.  Cator,  5  Ves.  688;  Douglass 
r.  Wiggins,  1  Johns.  Ch.  435;  Agate  f.  Lowenbein,  57  N.  Y.  504;  Mann- 
sell  r.  Hart,  11  Ired.  Eq.  478;  Thatcher  v.  Phinney,  7  Allen's  Tel.  Cas. 
156;  Austin  v.  Stevens,  24  Me.  .520;  Wall  v.  Hinds,  4  Gray  256.  But  ha 
may  tear  down  a  ruinous  building,  which  is  dangerous  to  his  cattle  or 
to  life  and  limb.    Clemence  V.  Steere,  1  R.  I.  272. 

«T  Young  V.  Spencer,  10  B.  &  C.  145;  Doe  v.  Curlington,  5  B.  &  Ad. 

79 


§    G6  LIFE   ESTATES.  [PART   I. 

terial  and  permanent  change  in  the  character  of  the  build- 
ing, and  the  uses  to  which  it  might  be  put,  will  not  be  per- 
mitted, yet  any  slight  or  immaterial  change,  as  the  cutting 
of  a  door  or  the  opening  of  two  rooms  into  one,  will  be  per- 
missible, whenever  it  is  possible  for  the  premises  to  be  re- 
stored to  their  original  condition  at  the  end  of  his  term, 
and  in  no  case  is  it  likely  that  the  erection  of  new  buildings 
will  be  considered  waste.®*  The  tenant  is  also  under  obliga- 
tion to  keep  the  buildings  in  repair,  and  is  responsible  in 
damages,  if  he  permits  them  to  fall  into  decay.  Tenants  for 
life  or  for  years,  are  required  to  make  all  the  repairs  neces- 
sary to  keep  the  premises  in  as  good  condition  as  they  were 
when  they  entered  into  possession;  and  for  that  purpose 
they  may  use  the  timber  to  be  found  on  the  land.*®  But 
the  tenant   is  obliged  to   repair,   even  though  there   be  no 

507 ;  Webster  V.  Webster,  33  N.  H.  25 ;  McGregor  v.  Brown,  10  N.  Y.  118; 
Jackson  V.  Tibbits,  3  Wend.  341;  Phillips  v.  Smith,  14  Mees.  &  W.  595; 
Jackson  v.  Andrew,  18  Johns.  431.  Making  doors  out  of  windows,  is> 
waste.  Peers  r.  Wordsworth  (1904),  58  Atl.  Rep.  379. 
•  88  Jones  V.  Chappelle,  L.  R.  20  Eq.  539 ;  Winship  v.  Pitts,  3  Paige  259 ; 
Jackson  v.  Tibbits,  3  Wend.  341;  Sarles  v.  Sales,  3  Sandf.  Ch.  601; 
Beers  V.  St.  John,  16  Conn.  329.  But  see  Dooley  v.  Stringham,  4  Utah 
107,  where  the  tearing  down  of  an  old  building  and  erection  of  a  new 
one  was  considered  an  act  of  waste.  See  cases  cited  in  notes  86  and  87, 
supra.  And  if  the  structure  is  an  agricultural  fixture,  which  the  tenant 
may  remove  according  to  the  law  of  fixtures,  it  is  certainly  no  act  of 
waste  for  him  to  put  it  there;  and  he  may  remove  it  at  the  expiration 
of  the  estate,  if  he  can  do  so  without  materially  injuring  the  inheritance. 
Van  Ness  v.  Pacard,  2  Pet.  137;  Austin  v.  Stevens,  24  Me.  520;  Clemence 
V.  Steere,  1  R.  I.  272 ;  Dozier  V.  Gregory,  1  Jones  L.  100.  But  see  Mad- 
igan  V.  McCarthy,  108  Mass.  376;  Benney  v.  Foss,  62  Me.  251;  Conklin 
V.  Foster,  57  111.  104.  For  change  of  building,  see  Smith  v.  Chopple. 
25  Pa.  Sup.  Ct.  81;  held,  not  to  be  waste,  to  move  building,  in  Mels  t". 
Babst  Brew.  Co.,  104  W'is.  7,  79  N.  W.  Rep.  738,  46  L.  R.  A.  478. 

89  1  Washburn  on  Real  Prop.  149 ;  Long  V.  Fitzsimmons,  1  Watts  &  S. 
530;  Darcy  v.  Askwith,  Hob.  235;  Miles  V.  Miles,  32  N.  H.  147;  Harder 
V.  Harder,  26  Barb.  409;  Sticklebone  V.  Hatchman,  Owen  43;  Walls  f. 
-Hinds,  4  Gray  266;  Griffith's  Case,  Moore  69;  Co.  Lit.  53  a;  Wilson  f. 
Edmunds,  24  N.  H.  517;  Kearney  v.  Kearney,  17  N,  J.  Eq.  504;  Harvey 
V.  Harvey,  41  Vt,  373. 
80 


CH.    VI.]  LIFE   ESTATES.  §    67 

timber  on  the  land.®'*  He  will  not,  however,  be  forced  to 
expend  any  very  large  sums  of  money,  where  there  has  been 
any  extraordinary  decay  or  destruction  of  the  buildings. 
And  if  the  buildings  were  in  a  state  of  decay  at  the  time 
when  his  term  begun,  he  will  not  be  called  upon  to  repair."^ 
The  tenant  is  not  responsible  for  damage  done  by  the  act  of 
God,  the  public  enemies,  or  by  the  law.  But  he  is  obliged 
to  protect  the  premises  from  waste  by  strangers,  and  for  the 
acts  of  such  persons  he  is  responsible  to  the  reversioner."^ 
If  the  buildings  are  destroyed  by  fire  through  the  careless- 
ness of  the  tenant  or  his  servants,  he  is  responsible  in  dam- 
ages, but  he  is  not  liable  if  it  is  the  result  of  an  accident, 
and  he  is  free  from  fault.®^ 

§  67.  Exemption  from  liability. —  Although  the  liability  for 
waste  is  an  ordinary  incident  of  all  kinds  of  particular  es- 
tates, the  lessor  or  reversioner  may  by  grant  exempt  the  ten- 
ant from  such  liability.  He  is  then  said  to  have  an  estate 
for  life  or  for  years  "without  impeachment  of  waste." 
Such  a  tenant  may  do  any  of  those  things  enumerated  above, 

»o  Co.  Lit.  53  a ;  1  Washburn  on  Real  Prop.  149. 

91  Co.  Lit.  53,  54  b;  Wilson  v.  Edmonds,  24  N.  H.  517;  Clemcncc  v. 
Steere,  1  R.  I.  272. 

92  Co.  Lit.  53  a,  54  a;  Huntley  v.  Russell,  13  Q.  B.  591;  Attersoll  r. 
Stevens,  1  Taunt.  198;  Fay  v.  Brewer,  3  Pick.  203;  Pollard  v.  ShaflFer, 
1  Dall.  210;  Wood  v.  Griffin,  46  N.  Y.  237;  Cook  v.  Champlain  Trans. 
Co.,  1  Denio  91;  Austin  v.  Hudson  R.  R.,  25  N.  Y.  341;  White  v.  Wag- 
ner, 4  Har.  &  J.  373;  Beers  v.  Beers,  21  Mich.  464. 

93  By  statute  (6  Anne,  Ch.  31)  the  English  common  law  of  liability 
for  loss  by  fire  was  limited  to  cases  where  the  fire  occurred  through 
the  negligence  of  the  tenant  or  his  servant;  and  although  there  has 
been  no  general  express  re-enactment  of  it,  the  statutory  qualification 
seems  to  have  been  generally  adopted,  in  conformity  with  the  statement 
in  the  text.  See  Filliter  V.  Phippard,  11  Q.  B.  347;  Barnard  t'.  Poor, 
21  Pick.  378;  Clark  v.  Foot,  8  Johns.  421;  Lansing  v.  Stone,  37  Barb. 
15;  Althorf  v.  Wolfe,  22  N.  Y.  366;  Maull  v.  Wilson,  2  Harr.  433;  4 
Kent's  Com.  82;  1  Washburn  on  Real  Prop.  150,  151;  Spaulding  v.  Chi- 
cago and  C.  R.  R.,  30  Wis.  110. 

«  81 


§    68  LIFE   ESTATES.  [PAKT    I. 

which  is  usually  denied  to  a  tenant  of  a  particular  estate."* 
But  he  cannot  commit  willful  and  malicious  waste,  and  will 
be  restrained  from  doing  so  if  he  attempts  it;  or,  if  he  has 
already  done  so,  he  will  be  made  to  respond  in  damages.*" 

§  68.  Remedies  for  waste. —  If  the  waste  is  already  com- 
mitted, the  tenant  is  liable  to  an  action  at  law  for  damages. 
At  common  law,  under  the  statute  of  Marlbridge  and  Glou- 
cester, the  judgment  was  given  for  treble  the  actual  dam- 
age, and  the  land  wasted  was  forfeited  to  the  reversioner.*'' 
The  forms  of  the  common-law  actions,  as  well  as  the  nature 
of  the  judgment,  are  now  regulated  in  the  different  States 
by  statute,  and  for  detail  the  reader  is  referred  to  the.se 
statutes.®^  If  the  waste  is  only  threatened,  or  there  is  danger 
of  its  repetition  in  the  future,  the  equitable  remedy  by  in- 
junction is  more  salutary.  The  tenant  is  enjoined  from  the 
commission  of  the  waste,  upon  pain  of  punishment  for  con- 
tempt of  court."^     An  injunction  will  be  granted  in  every 

•4  2  Bl.  283;  1  Cruise  Dig.  128;  Lewis  Bowie's  Case.  11  Rep.  83;  Pyne 
T.  Dor.,  1  T.  R.  56;  Cholmeley  v.  Paxton,  2  Bing.  207. 

05  1  Washburn  on  Real  Prop.  155;  Vane  v.  Barnard,  2  Vern.  738; 
Marker  V.  Marker,  4  Eng.  Law  &  Eq.  95.  A  devise  of  the  use  and 
full  control  of  real  estate,  where  the  context  of  the  will  shows  that  the 
testator  intended  the  devisee  to  have  absolute  control,  free  from  inter- 
ference by  the  remainderman,  gives  an  estate  without  impeachment  of 
waste.     Wiley  v.  Wiley  (Neb.  1901),  95  N.  W.  Rep.  702. 

»8Bla.  Com.  283;  1  Washburn  on  Real  Prop.  152. 

87  1  Washburn  on  Real  Prop.  153,  157,  note;  4  Kent's  Com.  79.  The 
treble  damages  may  still  be  obtained  in  some  of  the  States.  Sackett  V. 
Sackett,  8  Pick.  306;  Harder  v.  Harder,  26  Barb.  409;  Chipman  v. 
Emeric,  3  Cal.  283.  W^hile  single  damages  only  can  be  obtained  in 
others.  Smith  v.  Follansbee,  13  Me.  273;  Harker  V.  Chambliss,  12  Ga. 
?35;  Woodward  v.  Gates,  38  Ga.  205.  In  most  of  the  States  the  amount 
of  damages  is  regulated  by  statute. 

88  Bla.  Com.  283;  Jones  v.  Hill,  1  Moore,  100;  Tracy  v.  Tracy,  1  Vern 
23;  Kane  f.  Vanderburgh,  1  Johns.  Ch.  11;  Harris  v.  Thomas,  1  Hen.  & 
M.  18;  Mayo  v.  Feaster,  2  McCord  Ch.  137;  Mollineaux  V.  Powell,  3  P. 
Wms.  268;  Basore  v.  Henkle,  82  Va.  474.  An  injunction  would  not  be 
granted,  unless  timely  and  the  waste  willful.  Gormon  v.  Peterson 
(1901),  193  m.  375,  62  N.  E.  Rep.  210,  55  L.  R.  A.  701.     Or  when  the 

82 


CH.   VI.]  LIFE   ESTATES.  §    68 

case  of  waste,  where  irreparable  injury  is  feared.  The  in- 
jury need  not  perhaps  be  very  material  where  the  question 
arises  between  persons  in  privity  of  estate;  but  as  between 
strangers  it  is  necessary  to  show  that  the  danger  is  im- 
mediate and  the  probable  injury  material  before  the  court 
will  interpose.®®  And  if  injury  has  already  been  done,  the 
court  will  not  only  grant  an  injunction  against  future  wastCj 
but  it  is  competent  for  the  court  to  inquire  into  the  amount 
of  damage  suffered,  and  give  judgment  for  the  same.^  At 
common  law  the  technical  action  for  waste  and  treble  dam- 
ages could  only  be  maintained  by  the  tenant  of  an  estate  of 
inheritance  immediately  succeeding  the  particular  estate. 
And  the  interposition  of  a  freehold  estate  in  remainder  would 
take  away  his  action.^  But  the  common-law  action  upotf 
the  case  in  the  nature  of  waste  could  be  maintained  by  any- 
one who  had  a  reversionary  interest  in  the  land,  and  had 
been  injured  thereby.' 

right  of  the  tenant  is  in  doubt.  Butts  V.  Fox  (Mo.  1904),  81  S.  W.  Rep. 
493.  But  it  has  been  held  that  statutory  remedies,  when  they  afford 
ample  protection,  supersede  the  equitable  remedy.  Cutting  v.  Carter, 
4  Hen.  &  M.  424;  Poindextcr  v.  Henderson,  Walk.      (Mich.)    176. 

»9Leighton  v.  Leighton,  32  Me.  399;  Attaquin  v.  Fish,  5  Mete.  140  j 
Atkins  V.  Chilson,  7  Mete.  398;  Rodgers  v.  Rodgers,  11  Barb.  595;  Liv- 
ingston V.  Reynolds,  26  Wend.  115;  Storm  v.  Mann,  4  Johns.  Ch.  21?, 
London  v.  Warfield,  5  J.  J.  Marsh.  196;  WTiite  Water  Canal  v.  Comegysy 
2  Ind.  469;   Field  V.  Jackson,  2  Dick.  599. 

»  Story's  Eq.  Jur.,  Sees.  517,  518;  1  Washburn  on  Real  Prop.  161; 
Watson  V.  Hunter,  5  Johns.  Ch.  170;  Ware  v.  Ware,  6  N.  J.  Eq.  117. 

2  Co.  Lit.  218  b,  note  122';  Williams  v.  Balton,  3  P.  Wms.  268;  Bacon 
V.  Smith,  1  Q.  B.  345;  Hunt  V.  Holl,  37  Me.  363;  Peterson  v.  Clark,  15 
Johns.  205,  206;  Palmer  v.  Young,  108  111.  App.  252.     Nor  can  a  con- 
tingent remainderman  maintain  the  action.     Taylor  v.  Adams,  93  Mo., 
App.  277.  ; ; 

8  Chase  v.  Hazelton,  7  N.  H.  175;  Williams  v.  Bolton,  3  P.  Wms.  268. 
But  in  the  Code  States  this  distinction  between  trespass  and  trespass  on 
the  case  has  been  abolished.  Brown  r.  Bridges,  30  Iowa  145;  Hine  V. 
Railroad  Co.,  59  Hun  625;  Macy  v.  R.  R.  Co.,  59  Hun  365.  An  allega- 
tion that  an  injury  resulted  to  the  use  and  interest  of  plaintiff  in  the 
premises,  is  sufficiently  broad  to  base  damages  for  injury  to  the  in- 
heritance thereon.     Dix  v.  Jaquay,  88  N.  Y.  S.    (1904),  94  App.  Div. 

83 


§    68  LIFE   ESTATES.  [PART   I. 

554.  It  is  discretionary  with  the  court,  under  the  California  statute, 
whether  treble  damages  should  be  allowed  or  not.  Isom  v.  Book,  142 
Cal.  006,  70  Pac.  Rop.  506;  Isom  v.  Crude  Oil  Co.,  140  Cal.  678,  74 
Pac.  Rep.  294.  The  insolvency  of  the  party  in  possession  is  not  an 
essential  to  an  injunction  restraining  waste.  Palmer  V.  Young,  108  111. 
App.  252.  As  to  right  of  administrator  to  enjoin  the  commission  of 
waste,  see  Halstead  V.  Coen  (Ind.  1903),  67  N.  E.  Rep.  957.  Possession 
by  the  plaintiff  is  not  essential  to  an  injunction.  Peck  v.  Ayers,  &c.,  Tie 
Co..  no  Fed.  Rep.  273;  Peterson  v.  Ferrell,  127  N.  C.  169,  37  S.  E.  Rep. 
180.  In  a  suit  for  damages  for  removal  of  trees,  it  must  be  shown  how 
many  trees  were  cut  and  the  number  of  stumps  appearing  is  not  evi- 
dence that  defendant  cut  the  trees  growing  thereon.  Learned  v.  Ogden, 
80  Miss.  769;  32  So.  Rep.  278.  And  the  tenant  can  show  that  trees 
were  in  a  dying  condition.  Morris  v.  Knight,  14  Pa.  Super.  Ct.  324. 
Evidence  that  an  orchard  was  destroyed  through  inattention  is  such 
permissive  waste  as  to  render  the  tenant  liable.  Cole  v.  Bicklehaupt, 
71  N.  Y.  S.  636,  64  App.  Div.  6.  Statutes  conferring  a  right  of  action 
for  waste,  do  not,  generally,  effect  the  common  law  right  of  action  on 
the  case,  for  waste.  Thackery  v.  Edigan,  44  Atl.  Rep.  689;  Smith  v. 
Smith,  105  Ga.  106;  Tate  v.  Field,  57  N.  J,  Eq.  53;  White  v.  Fox,  125 
N.  C.  544,  34  S.  E.  Rep.  645. 
84 


CHAPTER  VII. 

ESTATES  ARISING  OUT  OP  THE  MARITAL  RELATIOH 

Section  I.  —  Estate  of  husband  during  coverture. 

II.  —  Curtesy.  ' 

III.  —  Dower. 

IV.  —  Homestead. 

SECTION  I. 
ESTATE  OF  HUSBAND,   DURING  COVERTURE. 

Section  69.  Effect  of  marriage  upon  wife's  property. 

70.  Husband's  rights  in  equity. 

71.  How  husband's  rights  may  be  barred. 

72.  How  prevented  from  attaching. 

73.  Restrictions  upon  alienation  of  wife's  separate  property. 

74.  Statutory  changes  in  the  United  States. 

§  69.  Effect  of  marriage  upon  wife's  property. —  The  legal 
personality  of  the  wife  is  lost  by  marriage  in  that  of  the 
husband.  In  the  eye  of  the  common  law  they  are  considered 
and  treated  as  one  person,  the  husband  being  the  head  and 
representative  of  the  duality.  According  to  the  common  law, 
therefore,  the  wife  cannot,  during  coverture,  hold  and  be 
possessed  of  property,  either  real  or  personal,  independent  of 
her  husband.  Her  rights  become  merged  for  the  time  be- 
ing in  his.  If  the  property  is  real  estate,  the  husband  is 
entitled  to  the  rents  and  profits  which  accrue  during  cover- 
ture.*    If  the  rents,  which  are  due,  remain  uncollected  at 

1  1  Bla.  Com.  442;  1  Washburn  on  Real  Prop.  328,  329;  VVilliama  on 
Real  Prop.  223,  224. 

85 


§  69  husband's  estate  during  coverture.        [part  r. 

his  death,  his  personal  representatives  are  entitled  to  thenx, 
in  preference  to  the  widow.*  The  husband  is  also  alone 
authorized  to  sue  for  accruing  rents.'  He  can  also  alien  his 
w^ife's  lands  or  the  rents  and  profits  thereof  during  cover- 
ture.* His  estate  is  a  freehold  estate  of  uncertain  duration, 
which  is  limited  by  the  continuance  of  the  coverture,  and 
which  may  last  during  his  life.''  But,  notwithstanding  this 
almost  unrestricted  control  over  her  lands,  the  husband 
is  not  treated  as  having  the  sole  seisin  thereof.  They  are 
regarded  as  being  jointly  seised  in  fee,  and  in  an  action  for 
injury  to  the  inheritance,  the  pleadings  should  be  in  their 
joint  names,  and  contain  a  declaration  of  their  joint  seisin.® 
The  husband,  however,  cannot  incumber  or  alien  his  wife's 
estate  in  reversion.  She  takes  it  at  his  death,  unaffected 
by  any  disposition  he  might  have  made  of  it  during  cover- 
ture.^ 

2  Shaw  V.  Partridge,  17  Vt.  626;  Jones  v.  Patterson,  11  Barb.  572;  1 
Washburn  on  Real  Prop.  329;   Williams  on  Real  Prop.  223. 

3  Babb  V.  Perley,  1  Me.  6;  Mattocks  v.  Stearns,  9  Vt.  326;  Fairchild  V. 
Chastelleaux,  1  Pa.  St.  176.  And  this  is  true  of  all  actions  for  protec- 
tion of  the  freehold,  where  the  inheritance  is  not  materially  affected. 
But  where  the  trespass  affects  the  inheritance,  the  action  should  be  in 
their  joint  names.  Babb  v.  Perley,  supra;  Dippers  at  Tunbridge  Wells, 
2  Wils.  423;  2  Kent's  Com.  131. 

<  Co.  Lit.  325  a,  note  280;  Robertson  V.  Norris,  11  Q.  B.  916;  Trask 
V.  Patterson,  29  Me.  499;  McClain  v.  Gregg,  2  A.  K.  Marsh.  454; 
Mitchell  V.  Sevier,  9  Humph.  146;  Williams  on  Real  Prop  227;  Jones  V. 
Field,  42  Ark.  357.  But  in  Massachusetts  a  different  doctrine  is  held, 
t.  e.,  that  the  husband  has  no  power  to  convey  the  wife's  property 
without  her  assent,  not  even  the  estate  he  has  during  coverture.  Walsh 
i;.  Young,  110  Mass.  396. 

5  Co.  Lit.  351  a;  Babb  v.  Perley,  1  Me.  6;  Melvin  v.  Proprietors,  16 
Pick.  165;  1  Washburn  on  Real  Prop.  329. 

6  Co.  Lit.  77a;  Poole  v.  Longueville,  2  Saund.  283;  Polybank  v.  Haw- 
kins, Dougl.  314;  Moore  V.  Vinten,  12  Sim.  Ch.  164;  Melvin  v.  Pro- 
prietors, 16  Pick.  165;  Cole  V.  Wolcottville  Mfg.  Co.,  35  Conn.  178;  Hall 
r.  Sayre,  10  B.  Mon.  46;  Babb  v.  Perley,  1  Me.  6;  2  Kent's  Com.  131; 
1  Washburn  on  Real  Prop.  330. 

-  1  Washburn  on  Real  Prop.  333 ;  Williams  on  Real  Prop.  226,  227 ; 
Millrr  r.  Snowman.  21  Mp.  201;  Bruce  V.  Wood,  1  Mete.  542;  Cleary  r. 
McDow.nll.  1  Cheves  139. 

86 


CH.  VII.]        husband's  estate  during  coverture,  §  70 

§  70.  Husband's  rights  in  equity. —  The  foregoing  statement 
of  the  common  law  rights  of  the  husband,  in  the  real  estate 
of  the  wife,  during  coverture,  were  so  far  modified,  after 
the  creation  of  the  English  Court  of  Chancery,  that  when- 
ever the  husband  sought  recourse  to  a  court  of  equity,  for 
the  enforcement  of  his  common  law  rights  in  regard  to  his 
wife's  real  estate,  in  the  application  of  the  more  humane 
principles  which  obtained  in  courts  of  chancery,  the  wife's 
rights  were  also  taken  into  consideration  and  she  was  held 
entitled  to  a  settlement,  known  as  her  "equity  to  a  settle- 
ment,*^' and  the  court  compelled  the  husband  to  provide  for 
the  maintenance  and  support  of  the  wife  and  her  children, 
out  of  her  property.*  The  common  law  powers  of  the  hus- 
band, in  regard  to  his  wife's  property,  being  at  war  with 
the  equitable  rights  of  a  married  woman,  by  an  enlarge- 
ment of  her  equitable  right  to  a  settlement  out  of  her  sepa- 
rate estate,  courts  of  equity  finally  came  to  a  recognition  of 
her  right  to  hold  and  enjoy  property  that  was  given  her 
for  her  exculsive  use,  free  from  the  claims  of  her  husband." 
This  equitable  recognition  of  the  rights  of  the  married 
woman,  in  regard  to  her  separate  estate,"*  with  the  progress 
of  our  civilization,  has  finally  resulted  in  her  almost  com- 
plete emancipation,  so  far  as  her  property  rights  are  con- 
cerned, by  the  various  statutes  of  the  United  States,  here- 
after discussed.^^ 

8  2  Pom.  Eq.  Jur.  1114;  2  Story  Eq.  Jur.  1378;  2  Kent's  Com.  162; 
Kenny  v.  Udell,  5  Johns.  Ch.  464.  "  In  equity  she  has  a  separate  ex- 
istence from  her  husband,  and  on  account  thereof,  she  may  have  the 
possession  and  ownership  of  property  separate  from  her  husband." 
Boot  f.  Gooch,  97  Mo.  88,  per  Black,  J.  See  also,  Welch,  Admr.,  v. 
Welch,  63  Mo.  57. 

0  1  Tiffany,  Real  Prop.,  Sec.  177,  p.  413;  Richardson  t?.  DeGiverville, 
107  Mo.  435;  Williamson  v.  Yeager,  91  Ky.  282;  2  Kent's  Com.  162; 
2  Pom.  Eq.  Jur.   1114. 

10  See  post,  Sec.  72. 

nPo8t,  Sec.  74. 


87 


§  72  husband's  estate  during  coverture.        [part  I. 

§  71.  How  husband's  rights  may  be  barred. —  His  rights 
during;  coverture  are  barred  if  the  wife's  inheritance  is 
forfeited  for  any  cause;  and  he  is  divested  of  them  by  a 
divorce  a  vinculo,  and  also  by  a  statutory  divorce,  where  it 
is  decreed  for  his  fault.^^ 

§  72.  How  prevented  from  attaching. —  The  husband 's  mari- 
tal rights  will  attach  to  all  kinds  of  real  property,  both 
legal  and  equitable,  where  there  is  no  express  prohibition  or 
release  of  the  same.  But  equity  very  often  treats  a  married 
woman  as  if  she  were  single,  and  will  protect  her  property 
against  the  claims  of  the  husband,  whenever  it  is  expressly 
provided  by  the  donor  that  she  should  hold  and  enjoy  the 
land  to  her  "sole"  and  "separate"  use  and  free  from  the 
control  of  her  husband.  And  if  there  be  no  special  trustee 
appointed,  equity  will  compel  the  husband  and  his  privies 
to  hold  the  legal  estate  as  trustees  for  the  separate  use  of 
the  wife.^^  No  particular  forms  of  expression  are  required, 
but  the  intention  to  exclude  the  husband's  rights  must  be 
clearly  manifested,  and  for  that  purpose  it  is  advisable  to 
append  to  the  habendum  clause  of  the. deed  the  words  "to 
her  sole  and  separate  use,"  or  others  of  a  similar  import.^* 

12  Co.  Lit.  3.51  a;  1  Washburn  on  Real  Prop.  330;  Bxirt  v.  Hnrlburt,  16 
Vt.  292;  Oldham  f.  Henderson,  5  Dana  257;  Cizek  v.  Cizek  (Neb.  1904), 
96  N.  W.  Rep.  6,'57,  99  ib.  28;  Van  Deet  v.  Devvitt,  200  111.  153,  65  N.  E. 
Rep.  677;  Becklenberg  v.  Becklenberg,  102  111.  App.  504;  Whitton  V. 
Whitton  (Enar.  1901),  71  Law  J.  10,  85  Law  T.  646;  Page  V.  Page.  86 
Law  T.  638.  The  husband's  right  to  his  wife's  property  during 
coverture  also  ends  with  the  birth  of  a  child  of  the  marriage,  when  his 
estate  of  courtesy  attaches.  2  Kent's  Com.,  130;  Tiffany,  Real  Prop.,. 
See.  176,  p.  412. 

13  1  Washburn  on  Real  Prop.  330;  Williams  on  Real  Prop.  224;  Major 
r.  Lansley,  2  Russ.  &  Mylne,  355;  Stuart  r.  Kissam,  3  Barb.  493; 
Cochrane  v.  O'Hern,  4  Watts  &  R.  95;  Heath  r.  Knapp.  4  Birr  228; 
Shirley  v.  Shirley,  9  Paige  364;  Blanehard  v.  Blood.  2  Barb.  3.52;  Fears, 
r.  Brooks,  12  Ga.  195;  Steele  v.  Steele,  1  Ired.  Eq.  452;  Knight  r.  Bell, 
22  Ala.  198;  Griffith  r.  Griffith,  5  B.  Mon.  113;  Long  c.  White,  5  J.  J. 
Marsh,  226;   Richardson  v.  DeGiverville,   107  Mo.  435. 

1*1   Washburn  on  Real  Prop.  331;  Tritt  v.  Colwell,  31  Pa.   St.  228; 
88 


CH.  VII.]       husband's  estate  during  coverture.  §  73 

§  73.  Restrictions  npon  alienation  of  wife's  separate  prop- 
erty.—  According  to  the  English  rule  of  equity,  the  wife  is  so 
far  considered  a  feme  sole  that  she  has  the  power  freely  to 
dispose  of  her  separate  property  by  joining  with  her  trustee 
in  the  deed  of  conveyance.*'  This  English  rule  has  been 
followed  in  some  of  the  States  of  this  country/*  while  in 
other  States  the  contrary  rule  has  been  adopted  that  no 
disposition  of  the  wife's  separate  property  can  be  made  by 
her  or  her  husband,  unless  a  power  of  disposition  is  expressly 
granted  to  her."  In  the  latter  States,  therefore,  the  wife's 
separate  property  is  amply  protected  against  the  control 
or  influence  of  the  husband.  But  in  England,  and  in  those 
States  which  have  adopted  the  English  rule,  he  may  still  gain 
control   of  her  property   by  the  exercise  of  his   persuasive 

Fears  v.  Brooks,  12  Ga.  195;  Goodrum  v.  Goodrum,  8  Ired.  Eq.  313; 
Welch  V.  Welch,  14  Ala.  76;  Kenny  v.  Udell,  5  Johns.  Ch.  464;  Books 
V.  Gooch,  97  Mo.  88.  See  Tidd  v.  Lister,  17  Eng.  Law  &  Eq.  560;  s.  c. 
23  Id.  578. 

15  1  Washburn  on  Real  Prop.  331;  Williams  on  Real  Prop.  224, 
Rawle's  note;  White  v.  Hulme,  1  Bro.  C.  C.  16;  Brandon  v.  Robinson, 
18  Ves.  434;  Tullett  r.  Armstrong,  1  Beas.  1;  Scarborough  v.  Borman, 
lb.  34.  The  statement  in  the  text  that  the  trustee  must  join  in  the 
conveyance  with  the  married  woman  is  not  true  when  the  married  wom- 
an's separate  estate  is  a  passive  use.  It  is  only  true  when  it  is  an 
active  use.  For  recent  cases  holding  joinder  of  husband  necessary  in 
conveyances  of  the  wife  of  her  statutory  separate  estate,  see  note  to  Sec. 
74.     See  post.  Sec.  348. 

10  In  New  Jersey,  Connecticut,  Kentucky,  Ohio,  North  Carolina,  Ala- 
bama, Georgia,  Missouri,  Vermont  and  Maryland.  Leaycraft  r.  Hedden, 
4  N.  J.  Eq.  55;  Imlay  r.  Huntington,  20  Conn.  175;  Wooley,  10  B.  Mon. 
320;  Feary  f.  Booth,  4  Am.  Law  Reg.  (N.  S.)  141,  note;  Frazier  r. 
Brownlow,  3  Ired.  Eq.  237.  In  New  York,  the  English  rule  formerly 
prevailed.  Dyett  t*.  North  American  Coal  Co.,  20  Wend.  570.  But  now 
the  matter  is  regulated  by  local  statute,  and  the  wife's  power  over  her 
separate  estate  has  been  greatly  restricted.  Rogers  f.  Ludlow,  3  Sandf. 
Ch.   104;  Leggett  V.  Perkins,  2  N.  Y.  297.     See  post,  Sec.  348. 

IT  In  Pennsylvania,  Rhode  Island,  Virginia,  South  Carolina,  Missis- 
sippi, and  Tennessea  Wright  v.  Brown,  8  Wright,  204;  Metcalf  r. 
Cooke,  2  R.  I.  355;  Williamson  v.  Beekham,  8  Leigh  20;  Ewing  r.  Smith, 
3  DeSau.  417;  Doty  V.  Mitchell,  9  Smed.  &  M.  447;  Marshall  v.  Stephens, 
8  Humph.  159.     See  post,  Sec.  348. 

89 


§  74  husband's  estate  during  coverture.        [part  I. 

powers  over  her.  In  order  to  afford  her  complete  protection, 
it  is  permitted  in  those  States  to  impose  restrictions  upon 
her  power  to  alien  the  estate  or  to  anticipate  the  income 
thereof." 

§  74.  Statutory  changes  in  United  States. —  The  foregoing 
paragraphs  present  the  law  as  it  obtains  at  common  law 
and  in  this  country,  in  the  absence  of  remedial  statutes. 
The  common-law  rights  of  the  husband  in  the  wife's  prop- 
erty during  coverture,  have  been  entirely  taken  away  in  some 
of  the  States,  the  married  woman  being  vested,  by  statutes, 
with  all  the  rights  and  capacities,  in  respect  to  her  prop- 
erty, of  a  single  woman,  while  in  other  States  they  are  more 
or  less  modified  and  regulated  by  statute.^"  In  the  limited 
space,  which  can  be  given  to  the  subject,  it  is  impossible  to 
give  the  law  of  each  State  in  detail,  as  it  has  been  modified 
by  statute.  But  the  following  brief  and  general  statement 
may  be  taken  as  reasonably  accurate :  In  California,  Colo- 
rado, Dakota,  Delaware,  Florida,  Illinois,  Indiana,  Iowa, 
Kansas,  Michigan,  Mississippi,  Minnesota,  New  Jersey,  Ne- 
vada, New  York,  Pennsylvania,  South  Carolina,  Texas,  and 
Wisconsin,  the  common  law  estate  during  coverture  has  been 
practically  abolished,  except  that  in  Florida,  Indiana,  Mis- 
sissippi, Minnesota,  New  Jersey,  Nevada  and  Pennsylvania, 
in  order  to  convey  her  property,  the  husband  must  join  in 
the  deed,  and  in  Texas  he  is  held  to  have  the  management  of 
her  lands  during  coverture.  In  Alabama,  Arkansas,  Con- 
necticut, Maryland,  Missouri,  Rhode  Island,  Tennessee  and 
Vermont,  the  common-law  rights  of  the  husband  in  his  wife's 
property  have  been  more  or  less  modified,  the  chief  provision 
being,  that  his  creditors  cannot  levy  upon  it  for  his  debts. 
In  New  Hampshire  and  Ohio,  all  lands  acquired  by  the  wife 
by  devise,  conveyance,  or  purchase  with  her  own  funds,  shall 

"  1  Washburn  on  Real  Prop.  331;  Williams  on  Real  Prop.  225;  cases 
cited  in  notes  (11,  12,  13).     See  also  post,  Sec.  348. 
"See  1  Washburn  on  Real  Prop.  335-341,  note. 
90 


cii.  VII.]        husband's  estate  during  coverture.  §  74 

be  l.or  soparalo  property  free  from  the  common-law  rifjhts 
of  the  husband,  but  she  cannot  convey  her  lands,  without 
joining  with  the  husband.  In  California,  Dakota,  Nevada, 
and  Texas,  the  "partnership"  theory  of  marriage,  borrowed 
from  the  civil  or  Roman  law,  and  in  force  in  Louisiana,  has 
been  adopted,  and  a  statute  declares  that  all  lands  purchased 
by  the  husband  or  wife  with  funds  earned  by  their  labor 
shall  be  the  common  property  of  both,  and  one-half  goes 
to  the  heirs  of  each,  or  it  may  be  conveyed  away  during  his 
or  her  lifetime,  without  the  co-operation  of  the  other.  It 
is  evident  from  this  brief  synopsis,  that  an  accurate  knowl- 
edge of  the  law  of  married  women,  in  any  given  State,  can 
only  be  had  by  a  careful  study  of  the  statutes  and  decisions 
of  that  State.  A  general  treatise  of  limited  scope  oan  only 
give  an  outline  of  the  subject.^^ 

20  See  1  Washburn  on  Real  Prop.  335-41,  note.  In  Arkansas  (Rudd  '". 
Peters,  41  Ark.  177),  Illinois  (Dean  V.  Bailey,  50  111.  481),  Maine 
(Stratton  v.  Bailey,  80  Me.  345),  Missouri  (Hach  v.  Hill,  106  Mo.  18), 
and  Wisconsin  (Martin  v.  Remingtpn,  100  Wis.  540),  the  statutory 
separate  estate  of  a  married  woman  has  been  held  free  from  the  debts 
of  her  husband.  1  Tiffany,  Real  Prop.,  Sec.  178,  p.  416.  Husband  must 
join,  in  conveyances  of  the  wife,  in  Indiana,  Shipley  v.  Smith,  162  Ind. 
526,  70  N.  E.  Rep.  803;  and  in  North  Carolina,  Vann  V.  Edwards,  135 
N.  C.  661,  47  S.  E.  Rep.  784;  Alabama,  Young  v.  Sheldon,  36  So.  Rep. 
27;  Kentucky,  Deusch  V.  Questa,  76  S.  W.  Rep.  329;  Louisiana,  Caldwell 
V.  Trezevant,  111  La.  410,  35  So.  Rep.  619;  Texas,  McAnulty  v.  Ellison, 
71  S.  W.  Rep.  670;  Missouri,  Peter  v.  Byrne,  175  Mo.  233,  75  S.  W.  Rep. 
433.  But  see,  Farmers  Bank  v.  Hageluken,  165  Mo.  443,  65  S.  W.  Rep. 
728;  Arkansas,  Jones  V.  Hill,  70  Ark.  34,  66  S.  W.  Rep.  194;  and 
Penn.sylvania,  Holliday  v.  Hively,  198  Pa.  St.  335,  47  Atl.  Rep.  988. 
And  in  Missouri,  as  to  land  held  as  separate  trust  property,  of  the  wife, 
in  which  the  trustee  joins.  Cadematori  v.  Gauger,  160  Mo.  352;  61 
S.  W.  Rep.  195. 

91 


SECTION  11. 

ESTATE  BY   CURTESY. 

Section  75.  Definition. 

76.  Marriage. 

77.  Estate  of  inheritance  necessary  in  the  wife. 

78.  Curtesy  in  fees  determinable. 

79.  Curtesy  in  equitable  estates. 

80.  Seisin  in  wife  during  coverture. 

81.  Curtesy   in  reversion. 

82.  Necessity  of  issue. 

83.  Liability  for  husband's  debts. 

84.  Haw  estate  may  be  defeated. 

§  75.  Definition. —  An  estate  by  the  curtesy  is  a  freehold 
estate,  limited  by  operation  of  law  to  the  husband  for  life 
in  the  lands  and  tenements  of  the  wife,  in  which  she  was 
seized  of  an  estate  of  inheritance  during  coverture.  The  es- 
tate by  curtesy  becomes  initiate  upon  the  birth  of  issue, 
bom  alive  and  capable  of  inheriting  the  estate,  and  takes 
effect  in  possession  upon  the  death  of  the  wife.^  Until  the 
death  of  the  wife,  the  husband  cannot  by  reason  of  his  curtesy 
initiate  make  any  claim  to  the  land  or  to  the  rents  and  profits 
which  she  receives  therefrom.^  It  does  not  exist  in  Louisiana, 
California,    Indiana,    Michigan,    South    Carolina,    Georgia, 

1  Co.  Lit.  30a;  2  Bla.  Com.  126;  1  Washburn  on  Real  Prop.  163; 
Williams  on  Real  Prop.  227. 

2  Moore  v.  Darby  (Del.),  18  Atl.  Rep.  768.  The  death  of  the  wife  is 
an  essential  requisite  before  the  husband's  estate  of  curtesy  attaches. 
Guernsey  v.  Lazier,  51  W.  Va.  328,  41  S.  E.  Rep.  405. 

92 


CH.    VII.]  ESTATE   BY   CURTESY.  ,  §    76 

Kansas,  Texas  ^  and  Illinois.*  The  requisites  of  the  estate 
by  curtesy  are:  1.  Lawful  marriage;  2.  Seisin  of  wife  dur- 
ing coverture;  3.  Birth  of  a  living  child  in  the  life-time  of 
the  wife;  4.  The  death  of  the  wife. 

§  76.  Marriage. —  The  marriage  must  be  a  lawful  one.  If 
the  marriage  be  void  because  of  some  illegality,  curtesy 
does  not  attach ;  but  if  the  marriage  is  only  voidable,  the  hus- 
band will  have  curtesy,  unless  it  be  actually  declared  void 
during  the  life  of  the  wife."^     And  in  some  of  the  States,  a 

3  1  Washburn  on  Real  Prop.  164;  Tong  v.  Marvin,  15  Mich.  73;  Portis 
r.  Parker,  22  Texas  699.  But  it  is  either  recognized  by  the  courts,  or 
expressly  given  by  statute,  in  the  other  States.  Adair  V.  Lott,  3  Hill 
186;  Thurber  v.  Townshend,  22  N.  Y.  517;  Armstrong  v.  Wilson,  60  111. 
226;  Malone  v.  McLaurin,  40  Miss.  162;  Morris  v.  Morris,  94  N.  C.  613; 
Luntz  V.  Greve,  102  Ind.  173.  In  South  Carolina,  it  has  been  decided 
that  the  statute  of  1791  only  abolished  curtesy  in  fees  simple;  and 
that  it  still  exists  in  a  fee  conditional.  Withers  v.  Jenkins,  14  S.  C. 
697;  Gaffney  v.  Peeler,  21  S.  C.  55;  Frost  v.  Frost,  21  S.  C.  501.  The 
position  of  the  South  Carolina  court  that  curtesy  in  fees  simple  is 
abolished,  is  based  upon  an  erroneous  construction  of  the  act  of  1791. 
That  act  gave  the  husband  the  same  interest  in  the  lands  and  other 
property  of  his  deceased  wife,  as  was  given  to  the  wife  in  her  deceased 
husband's  property,  that  is,  he  was  included  in  the  Statute  of  Descent 
as  an  heir  of  the  wife.  The  court  holds  that  the  estate  by  curtesy  was 
impliedly  abolished,  whereas  the  proper  construction  is  that  he  is  put  to 
his  election,  and  cannot  take  both  the  curtesy  and  the  statutory  pro- 
vision. This  construction  is  universally  recognized  and  adopted  in  the 
parallel  case  of  the  widow,  who  is  entitled  to  dower  and  is  also  made 
statutory  heir.  She  may  take  her  dower,  but  cannot  take  both.  The 
husband's  right  to  possession,  as  tenant  by  curtesy,  may  be  enforced  by 
ejectment.  Towns  r.  Towns,  121  Ala.  422,  25  So.  Rep.  715;  Gregg  v. 
Tesson,  1  Black.  150,  17  L.  Ed.  74.  But  see  Coquard  v.  Pearce,  68 
Ark.  93.  But  before  the  death  of  the  wife,  the  right  of  the  husband 
is  not  such  an  estate  as  will  pass  to  trustees  in  bankruptcy.  Haseltine 
f.  Prince,  95  Fed.  Rep.  802;  Lynde  v.  McGregor,  13  Allen  182;  90 
Amer.  Dec.  188.  Like  other  life  tenants,  a  tenant  by  curtesy  commits 
waste,  who  cuts  and  sells  trees  on  the  land  to  which  his  estate  attache?. 
Learned  v.  Ogden.  80  Miss.  769,  32  So.  Rep.  278. 

*  .\bolishpd  in  1874  and  a  dower  trust  substituted  therefor.  Com.  v. 
P'Rear.  24  N.  E.  Rep.  9.56. 

s  1  Washburn  on  Real  Prop.  165. 

93 


§    77  ESTATE   BY    CURTESY.  [PART   1. 

dissolutiou  of  the  marriage  by  decree  of  court  at  the  suit 
of  the  wife  for  the  fault  of  the  husband,  will  take  away  the 
husband  s  estate  by  curtesy.' 

§  77.  Estate  of  inheritance  necessary  in  the  wife. —  In  order 
that  curtesy  may  attach,  the  estate  of  the  wife  must  be  a 
freehold  of  inheritance,  and  no  form  of  conveyance  of  a 
common-law  le^al  estate  of  inheritance  can  be  devised  by 
which  the  husband  may  be  deprived  of  his  curtesy  therein.^ 
But  the  legal  estate,  of  which  the  wife  may  be  possessed 
as  trustee,  is  not  subject  to  the  husband's  curtesy.® 

«  This  is  the  law  in  Maine,  Massachusetts,  Vermont,  Connecticut,  New 
York,  Delaware,  Indiana,  Kentucky,  Rhode  Island,  Arkansas,  New 
Hampshire,  Missouri,  Minnesota,  Ohio,  New  Jersey,  Illinois,  Maryland. 
1  Washburn  on  Real  Prop.  309-12,  note;  Bishop's  Mar.  &  Div.,  Sec.  (566; 
1  Greenl.  Cruise  150.  See  also  Neff  v.  Turkic,  4  Ohio  Dec.  314.  By 
statute,  in  Illinois,  the  Chancellor  granting  the  divorce  is  given  full 
discretion  to  "  settle  and  adjust  the  property  rights  of  the  parties." 
Heynian  v.  Heyman,  210  111.  524,  71  N.  E.  Rep.  591.  In  Missouri,  the 
guilty  party  forfeits  all  rights  and  claims  by  virtue  of  the  marriage. 
Schlemmer  r.  Schlemmer  (1904),  81  S.  W.  Rep.  636.  In  Oregon,  the 
successful  party  in  divorce  is  given  one-third,  in  fee,  in  the  lands  of 
the  guilty  party.  Benficld  v.  Benfield,  44  Ore.  94,  74  Pac.  Rep.  495.  In 
England,  on  divorce  of  the  wife,  the  court  has  power  to  extinguish  the 
life  estate  of  the  husband  in  her  land.  Blood  r.  Blood  (1902),  71  Law 
J.  97,  86  Law  T.  641;  Kaye  r..  Kaye  (1902),  86  Law  T.  6.38;  Whitton 
r.  Whitton  (1902),  71  I^aw  J.  10,  85  Law  T.  646.  In  Texas,  neither 
party  can  be  divested  of  the  title  to  real  estate.  Long  v.  Long  (1902), 
69  S.  W.  Rep.  428.  A  divorce  was  held  to  bar  the  curtesy  of  the 
husband,  in  the  following  cases:  Doyle  V.  Rolwing,  165  Mo.  231.  65 
S  W.  Rep.  315,  55  L.  R.  A.  332;  Moran  V.  Somes,  1.54  Mass.  200,  28 
N.  E.  Rep.  152;  Clark  v.  Slaughter,  38  Miss.  64;  Davis  v.  Davis,  68 
N.  C.  180.  But  see,  Meecham  v.  Bunting,  156  111.  586,  41  N.  E.  Rep. 
175.  28  L.  R.  A.  618,  47  Amer.  St.  Rep.  239. 

TMildmay's  Case.  6  Rep.  41;  Mullany  f.  Mullany,  4  N.  J.  Eq.  16; 
Williams  on  Real  Prop.  328;  1  Washburn  on  Real  Prop.  169.  A  con- 
tract of  purchase  does  not  give  the  wife  such  an  "  estate  of  inheritance." 
as  to  entitle  the  husband  to  curtesy  therein.    Hall  r.  Crabb,  55  Neb.  392, 

8  Chew  r.  Commissioners,  5   Rawle,  160.     And  this  is  true,  whether 

«Chew  r.  Commissiovners.  5    Rawle,   160.     And  this  is  true,  whether 
the  trust  is  expressed  or  implied  by  law  from  the  wife's  contract,  en- 
94 


CH.    Vn.]  ESTATE   BY    CURTESY.  §    79 

§  78.  Cnrtesy  in  fees  determinable. —  In  respect  to  the  right 
of  curtesy  in  fees  simple  and  fees  tail,  no  question  can 
arise,  as  explained  in  a  preceding  paragraph.  And  the  same 
may  be  said  of  a  fee  conditional  at  common  law,  where  such 
an  estate  has  not  been  converted  by  the  statute  de  donis  into 
an  estate  tail."  If,  however,  the  estate  be  a  fee  upon  con- 
dition, upon  limitation,  or  a  conditional  limitation,  some 
difficulty  is  experienced  in  determining  what  effect  the  hap- 
pening of  the  condition  or  contingency  would  have  upon  the 
husband's  curtesy.  The  following  may  be  stated  as  the 
prevailing  rule:  If  the  estate  of  the  wife  be  one  upon  con- 
dition or  upon  limitation,  estates  which  take  effect  and  are 
determined  according  to  the  rules  of  the  common  law,  and 
the  limitation  over  takes  effect  as  common-law  estates,  as 
in  the  case  of  a  remainder  after  an  estate  upon  limitation, 
the  husband's  curtesy  is  defeated.^"  But,  by  a  refinement 
of  distinction,  which  is  difficult  to  comprehend,  if  the  estate 
be  a  fee  determinable  upon  the  happening  of  some  future 
event,  and  the  limitation  over  be  by  way  of  executory  de- 
vise, or  shifting  use,  or  in  other  words  a  conditional  limi- 
tation, the  estate  by  curtesy  still  exists,  unaffected  by  the 
happening  of  the  contingency.^^ 

§  79.  Curtesy  in  equitable  estates. —  It  was  once  held  that 
the  husband  was  not  entitled  to  curtesy  out  of  the  equi- 
table estates  of  the  wife.  But  it  is  now  very  generally  con- 
ceded that  he  has  curtesy  in  all  equitable  as  well  as  legal 

tered  into  before  marriage,  to  sell  the  land.     Welsh  v.  Chandler,  13  B. 
Mon.  431. 

»Odom  V.  Beverly  (S.  C),  10  S.  E.  Rep.  835. 

"Co.  Lit.  241,  Butler's  note,  70;  1  Washburn  on  Real  Prop.  167,  168, 
170. 

11  Buckworth  v.  Thirkell,  3  B.  &  P.  6.52;  Moody  v.  King,  2  Ring.  447; 
Hatfield  V.  Sneden,  54  N.  Y.  285;  Grant  v.  Townshend,  2  Hill  554; 
Wright  V.  Herron,  6  Rich.  Eq.  406;  Martin  v.  Renaker  (Ky.),  9  S.  W. 
Rep.  419;  Webb  v.  Trustees,  etc.,  Baptist  Church  (Ky.),  13  S.  W.  Rep. 
362;  1  Washburn  on  Real  Prop.  171,  172;  Co.  Lit.  241a,  Butler's  note, 
170;  4  Kent's  Com.  33.     See  post,  Sec.  99,  note. 

95 


§    79  ESTATE   BY   CURTESY.  [pART   I. 

estates,  and  the  same  rules  are  applied  to  the  former,  which 
obtain  in  the  latter.  For  the  foundation  of  the  claim  of 
curtesy,  the  receipt  by  the  wife  of  the  rents  and  profits  is 
a  sufficient  seisin."  The  husband  has  also  curtesy  in  the 
equity  of  redemption,  where  he  and  his  wife  joined  in  the 
execution  of  the  mortgage.^'  And  this  is  true  also,  even  of 
those  equitable  estates  which  are  granted  to  her  sole  and  sepa- 
rate use.^*  But  equitable  estates  will  not  be  subject  to  the 
right  of  curtesy,  if  the  intention  of  the  grantor,  to  exclude 
the  husband  from  such  equitable  estate,  is  clearly  mani- 
fested in  the  deed.^" 

12  Kent's  Com.  .31 ;  1  Washburn  on  Rpal  Prop.  16.5,  166;  Watts  v.  Ball, 

1  P.  Wms.  109;  Morgan  v.  Morgan,  5  Madd.  408;  Sweetapple  v.  Bindon, 

2  Vern.  537,  note  3 ;  Davis  V.  Mason,  1  Pet.  508 ;  Houghton  v.  Hapgood, 
13  Pick.  154 ;  Robinson  V.  Codman,  1  Sumn.  128 ;  Dunscomb  v.  Dunscomb, 
1  .Johns.  508;  Clepper  V.  Livergood,  5  Watts  113;  Dubs  v.  Dubs,  31  Pa. 
St.  154.  In  several  of  the  States,  notably  Alabama,  Kentucky,  Mary- 
land, Mississippi,  and  Virginia,  curtesy  is  by  statute  made  to  attach 
to  equitable  estates.     1  Greenl.  Cruise,  157. 

13  Robinson  v.  Lakenan,  28  Mo.  App.  135;  Mettler  v.  Miller,  129  111. 
630. 

14  Tillinghast  v.  Coggeshall,  7  R.  I.  383;  Nightengale  v.  Hidden,  lb. 
115;  Sartill  r.  Robeson,  2  Jones  Eq.  510;  Carter  V.  Dale,  3  Lea,  710; 
31  Am.  Rep.  660.  But  see  Moore  v.  Webster,  L.  R.  23  Eq.  267.  Apple- 
ton  17.  Rowley,  L.  R.  8  Eq.  139;  Carson  v.  Fuhs,  131  Pa.  St.  256,  and 
succeeding  note.  Curtesy  attaches  to  the  equitable  estate  of  the  wife 
in  Rhode  Island,  under  a  void  deed  from  her  husband.  Ball  v.  Ball, 
20  R.  1.  .520,  40  Atl.  Rep.  234,  distinguishing,  Sayers  v.  Wall.  26  Gratt. 
354 ;  Deming  V.  Williams,  26  Conn.  226,  68  Amer.  Dec.  386 ;  Whitten  v. 
Whitten,  3  Cush.  191.  Property  granted  to  a  married  woman,  in  North 
Carolina  and  Missouri,  free  and  clear  of  any  claim  of  her  husband, 
gives  her  the  land  free  from  his  curtesy.  Tiddy  i\  Graves,  126  N.  C. 
620,  36  S.  E.  Rep.  127.  McBreen  v.  McBreen,  154  Mo.  323,  55  S.  W. 
Rep.  463.  Husband's  curtesy  does  not  attach  to  wife's  separate  estate, 
in  Tennessee.  Bingham  r.  Weller  (1904),  81  S.  W.  Rep.  843.  Or  in  Vir- 
ginia, RatcliflF  V.  RatcliflF  (1904),  102  Va.  880,  47  S.  E.  Rep.  1007. 
The  husband  has  no  curtesy  in  the  equitable  separate  estate  of  the  wife, 
in  Virginia,  in  the  absence  of  a  reservation  thereof  at  his  wife's  death. 
Jones  r.  .Tones,  96  Va.  749,  32  S.  E.  Rep.  463. 

15  Carter  v.  Dale,  3  Lea  710;  31  Am.  Law  Rep.  660;  Stokes  v.  Mc- 
Kibbin,  18  Pa.  St.  207;  Cochran  v.  O'Hern,  4  Watts  &  S.  95;  Rigler  r. 

96 


CH.    VII,]  ESTATE   BY   CURTESY.  §   80 

§  80.  Seisin  in  wife  during  coverture. —  Another  requisite 
of  the  estate  of  curtesy  is,  that  the  wife  must  be  seised  of 
the  estate  during  coverture;  and  if  divorce  is  obtained  be- 
fore the  wife's  acquisition  of  the  seisin,  he  cannot  claim 
curtesy  in  such  property,  because  she  would  not  in  that  case 
have  had  the  seisin  during  coverture.^*  The  actual  seisin 
was  required  at  common  law,  but  at  the  present  day,  in 
this  country,  all  that  is  required  is  legal  seisin,  which  is  a 
present  right  to  the  possession.  But  adverse  possession  will 
preclude  the  husband's  right  of  curtesy,  if  the  seisin  is  not 
regained  during  coverture.  In  the  absence  of  such  adverse 
possession,  actual  possession  is  not  required.^^  In  England, 
in  the  case  of  the  descent  of  lands  upon  the  wife,  an  entry 
by  the  husband  during  coverture  is  necessary  to  support 
his  right  of  curtesy.  But  it  is  the  general  rule  in  this  coun- 
try,  that   actual   entry  is   not   required,^*   and   in   Pennsyl- 

Cloud,  14  Pa.  St.  361;  Clark  v.  Clark,  14  Barb.  582;  Pool  V.  Blaikie, 
53  111.  495;  Hearle  v.  Greenback,  3  Atk.  716;  Bennett  V.  Davis,  2  P. 
Wms.  316;   1  Washburn  on  Real  Prop.  165-169. 

16  Schult  r.  Moll,  10  N.  Y.  S.  703. 

17  Kent's  Com.  30  n;  Davis  v.  Mason,  1  Pet.  506;  Jackson  V.  Sellick, 
8  Johns.  262;  Den  v.  Demareat,  1  N.  J.  L.  525;  Ellsworth  v.  Cook,  8 
Paige  Ch.  640;  Jackson  V.  Johnson,  5  Cow.  74;  Bar  v.  Galloway,  1  Mc- 
Lean, 476;  Pierce  V.  Wanett,  10  Ired.  446;  Mercer  V.  Selden,  1  How,  37; 
McCorry  r.  King's  Heirs,  3  Humph.  267;  Neeley  v.  Butler,  10  B.  Mon. 
48;  Stinebaugh  v.  Wisdom,  13  B.  Mon.  467;  Mettler  r.  Miller  (111. 
1890),  22  N.  E.  Rep.  529;  Barker  v.  Oakwood,  49  Hun,  416. 

18  Co.  Lit.  29  a;  1  Washburn  on  Real  Prop.  173,  174;  Adair  v.  Lett, 
Hill,  182;  Jackson  V.  Johnson,  5  Cow.  74;  Chew  v.  Commissioners,  5 
Rawle,  160;  Day  v.  Cochrane,  24  Miss.  261;  Stephens  v.  Hume,  25  Mo. 
349;  Harvey  r.  Wichman,  23  76.  115;  Carr  v.  Givens,  9  Bush.  679;  c.  a. 
15  Am.  Rep.  147.  Mr.  Tiffany,  in  his  recent  excellent  work,  on  Real 
Property,  takes  the  position  that  actual  seisin  in  the  wife  is  not  an 
essential  of  the  estate  by  curtesy,  (Tiffany,  Real  Prop.,  Sec.  205,  p. 
488)  and  he  cites,  as  an  authority,  the  opinion  of  Judge  Scott,  in  Raume 
V.  Chambers  (22  Mo.  p.  54.)  However  the  question  may  be  decided 
elsewhere,  this  opinion  has  long  ceased  to  be  the  law  in  Missouri,  where 
the  text  is  followed  and  seisin  in  the  wife,  either  in  law  or  fact,  is  held 
to  be  an  essential  prerequisite  to  an  estate  by  curtesy.  Martin  v.  Trail, 
142  Mo.  p.  95;  Cox  v.  Boyce,  152  Mo.  p.  581;  Dozier  v.  Toalson,  180 

7  97 


§    SI  ESTATE   BY   CURTESY.  [PART   I. 

vania,  Ohio,  and  Connecticut,  adverse  possession  does  not 
necessitate  an  actual  entry.^^  If  the  lands  are  in  possession 
of  a  co-tenant  in  a  tenancy  in  common,  the  wife  is  deemed 
sufficiently  seized  in  order  to  give  the  husband  curtesy,  and 
such  would  also  be  the  case,  where  a  tenant  for  years  or  at 
sufferance  has  possession  by  lease  from  the  wife.  The  ten- 
ant in  such  a  case  holds  the  actual  seisin  or  possession  as  a 
quasi  bailee  of  the  reversioner.*" 

§  81.  Curtesy  in  reversion. —  But  if  the  estate  of  the  wife  be 
a  reversion  or  a  remainder,  supported  and  preceded  by  a 
particular  freehold  estate,  she  will  not  have  such  a  present 
right  to  the  possession,  as  to  give  her  husband  curtesy,  un- 
less the  prior  freehold  is  determined  during  coverture,  and 
this,  too,  though  the  husband  is  the  tenant  of  the  prior  free- 
hold.''^ The  husband  in  such  cases  can  only  have  curtesy, 
when  during  coverture,  the  particular  freehold  is  determined 
or  is  merged  in  the  reversion  by  coming  into  the  same 
hands.''* 

Mo.  546.  Actual  seisin  of  the  wife  is  necessary  to  an  estate  by  curtesy, 
in  West  Virginia.  Jones  V.  Thorn,  45  W.  V.  186,  32  S.  E.  Rep.  173. 
And  also  in  Pennsylvania,  Keller  v.  Lamb,  10  Kulp,  246.  And  Ten- 
nessee, Waller  r.  Martin,  106  Tenn.  341,  61  S.  W.  Rep.  73. 

19  Stool foos  v.  Jenkins,  8  Serg.  &  R.  175;  Bush  v.  Bradley,  4  Day, 
298;  Kline  r.  Beebe,  6  Conn.  494.  Contra,  Mercer's  Lessee  v.  Selden, 
1  How.   154. 

20DeGray  r.  Richardson,  3  Atk.  469;  Green  v.  Liter,  8  Cranch,  245; 
Wass  f.  Bucknam,  35  Me.  360;  Taylor  v.  Gould,  10  Barb.  388;  Jackson 
V.  Johnson,  5  Cow.  74;  Carter  v.  Williams,  8  Ired.  Eq.  177;  Powell  v. 
Gossom,  18  B.  Mon.  179;  Vanarsdall  v.  Fauntleroy,  7  B.  Mon.  401;  Day 
r.  Cochrane,  24  Miss.  261. 

21  Stoddard  r.  Gibbs,  1  Sumn.  263;  Furguson  V.  Tweedy,  43  N.  Y.  543; 
Orford  r.  Benton,  86  N.  H.  395;  Malone  v.  McLaurin,  40  Miss.  163; 
Planter's  Bank  r.  Davis,  31  Ala.  633;  Doe  v.  Rivers,  9  T.  R.  272;  Web- 
ster V.  Ellsworth  (Mass.),  18  N.  E.  Rep.  569. 

22  1  Washburn  on  Real  Prop.  17.5-178;  Doe  r.  Scuddamore,  2  B.  &  P. 
294;  Plunket  v.  Holmes,  1  Lev.  11;  1  Cruise  Dig.  149.  Since  1887,  in 
Ohio,  the  husband  has  curtesy  in  land  to  which  his  wife  had  an  estate 
in  remainder,  where  she  died  before  the  life  tenant.  Moore  v.  lies,  IQi 
Ohio  C.  C.  .591,  9  Ohio  C.  D.  418. 

98 


CH.    Vn.]  ESTATE   BY   CURTESY.  §    83 

§  82.  Necessity  of  issue. —  The  estate  by  curtesy  is  by  the 
theory  of  the  law  only  a  continuance  of  the  wife's  estate  of 
inheritance,  and  is  supposed  to  be  intrusted  to  him  during 
life  for  the  benefit  of  the  wife's  issue.  It  is  therefore  neces- 
sary by  the  common  law,  that  the  wife  should  have  issue  born 
alive,  who  can  take  the  inheritance  as  heir  to  the  wife.  A 
female  child  in  the  case  of  a  tail  male  would  not  satisfy  this 
requirement.-^  His  right  becomes  initiate  upon  the  birth 
of  the  child,  and  attaches  and  vests  in  possession,  whether 
it  was  born  before  or  after  the  acquisition  of  the  estate ;  and, 
provided  it  was  born  alive,  its  death  any  time  would  not 
affect  the  husband's  right  of  curtesy.^*  In  Pennsylvania, 
by  statute,  the  birth  of  a  child  is  not  necessary,-^  The  issue 
must  not  only  be  born  alive  and  capable  of  inheriting  the 
estate,  but  it  must  also  at  common  law  have  been  born  dur- 
ing the  life-time  of  the  mother.  The  birth  of  the  child  after 
her  death,  by  means  of  the  Caesarian  operation,  would  not 
give  the  husband  curtesy.^* 

§  83.  Liability  for  husband's  debts. —  As  soon  as  the  right 
becomes  initiate  by  the  birth  of  the  child  as  well  as  after 
it  is  consummate,  it  may  be  subjected  to  the  satisfaction  of 
the  husband's  debts  and  can  be  sold  under  a  levy  of  execu- 

28  Co.  Lit.  29  b;  1  Washburn  on  Real  Prop.  178;  Williams  on  Real 
Prop.  228;  Heatli  v.  White,  5  Conn.  228;  Day  f.  Cochrane,  24  Miss.  261. 

24  2  Bla.  Com.  128;  1  Washburn  on  Real  Prop.  179;  Comer  v.  Cham- 
berlin,  6  Allen,  166;  Jackson  v.  Johnson,  5  Cow.  74;  Guion  v.  Anderson, 
8  Humph.  307;  Martin  v.  Renaker  (Ky.),  9  S.  W.  Rep.  419.  The  hus- 
band's right  of  curtesy,  upon  birth  of  a  child  by  him,  takes  precedence 
to  any  claim  by  descent  of  a  son  of  the  wife  by  a  prior  marriage.  Heath 
f.  White,  .">  Conn.  2.36.  The  law  is  different  in  Michigan  by  statute. 
Hathorn  r.  Lyon,  2  Mich.  93. 

25  Williams  on  Real  Prop.  228,  Rawle's  note;  Dubs  t'.  Dubs,  31  Pa.  St. 
154 ;  Lancester  Co.  Bank  r.  Stauffer,  19  Pa.  St.  398. 

20  1  Washburn  on  Real  Prop.  179;  Co.  Lit.  29  b;  1  Greenl.  Cruise.  143, 
note;  Marsellis  r.  Thalheimer,  2  Paige  Ch.  42.  The  birth  of  issue,  as  a 
condition  precedent  to  the  attaching  of  curtesy,  is  abolished,  by  statute  in 
West  Virginia.     Alderson  v.  Alderson,  46  W.  Va.  242,  33  S.  E.  Rep.  228. 

99 


5   84  ESTATE  BY  CURTESY.  [PART  L 

tion.-^  Equity  will  not  interfere  in  behalf  of  the  wife  or 
children. =*  It  can  be  conveyed  by  the  husband  independently 
of  the  wife's  conveyance  of  her  estate  in  the  land.^" 

§  84.  How  estate  may  be  defeated. —  The  statutory  divorce 
as  has  been  seen,  will  defeat  the  husband's  right  of  curtesy, 
where  it  is  granted  for  his  fault.^"  In  Pennsylvania  it  is 
also  provided  by  statute  that  if  the  husband  unjustifiably 
deserts  his  wife  for  a  year  preceding  her  death,  he  shall  for- 
feit his  claim  of  eurtesy.^^  So,  likewise,  the  acceptance  of  a 
testamentary  provision  which  was  made  for  him  in  the  place 
of  the  curtesy,  will  bar  the  curtes^  .^^  It  was  also  the  rule 
at  common  law  that  a  feoffment  in  :  ie  by  the  husband  would 
destroy  his  tenancy  by  curtesy.  But  although  the  same  rule 
is  now  enforced  in  this  country  in  regard  to  feoffments, 
wherever  they  still  obtain,  and  it  is  not  changed  by  statute, 
yet  the  ordinary  conveyance  is  held  to  transfer  only  what 
the  grantor  has,  and  will  not  work  a  forfeiture  of  his  actual 
estate.'^     In  a  preceding  section  it  has  been  stated  that  in 

27  Mattocks  V.  Stearns,  9  Vt.  326;  Litchfield  v.  Cudworth,  15  Pick. 
23;  Van  Duzer  v.  Van  Duzer,  6  Paige  366;  Day  v.  Cochrane,  24  Miss. 
261 ;  Bozarth  v.  Largent,  128  111.  95.  But  see  Harvey  v.  Wickham,  23 
Mo.  112;  Welsh  v.  Solenberger,  8  S.  E.  Rep.  91.  During  coverture,  the 
husband's  estate  of  curtesy,  cannot  be  sold  for  his  debts  in  Missouri. 
Ball  V.  Woolfolk,  175  Mo.  378,  75  S.  W.  Rep.  410.  The  husband's  rights 
to  rents  from  his  wife's  lands  is  superior  to  that  of  a  judgment  credi- 
tor of  the  wife,  although  the  land  could  have  been  sold,  during  the 
lifetime  of  the  wife.  Hampton  v.  Cook,  64  Ark.  353,  42  S.  W.  Rep.  535. 
But  see,  Shaddingle  v.  Fisher,  2  O.  C.  D.  381.  The  estate  by  curtesy 
entitles  the  husband  to  royalties  from  a  mine,  opened  {ifter  the  wife's 
death.  Bubb  v.  Bubb,  201  Pa.  St.  212;  Alderson  v.  Alderson,  46  W. 
Va.  242,  33  S.  E.  Rep.  228;  Kier  v.  Peterson,  41  Pa.  357;  Priddy  V. 
Griffith,  150  III.  560.  But  see,  Bond  v.  Ring,  99  Va.  564,  39  S.  E. 
Rep.  216. 

28  Van  Duzer  v.  Van  Duzer,  6  Paige  366, 
2oMettler  v.  Miller  (111.),  22  N.  E.  Rep.  529. 

30  See  ante,  Sec.  76. 

31  Bealor  v.  Hahn,   122  Pa.  St.  242. 

3::  Beirne's  Ex'rs  v.  Von  Ahlefeldt,  33  W.  Va.  563. 
33  French  v.  Rollins,  21  Me.  372;  Flagg  v.  Bean,  25  N.  H.  63;  Den- 
ICO 


CH.   Vn,]  ESTATE  BY  CURTESY.  §   84 

a  number  of  the  States,  statutes  have  been  passed,  which 
enable  a  married  woman  to  hold  property  as  free  from  mar- 
ital rights,  as  if  she  were  single.  In  New  York,  where  the 
change  was  first  made,  it  has  been  held  that  the  common- 
law  right  to  curtesy  still  exists,  but  it  may  be  defeated  by 
the  conveyance  of  the  wife  during  coverture.^*  But  it  seems 
that  under  the  New  York  statute,  the  tenancy  by  the  curtesy 
vests  only  where  the  land  remains  undisposed  of  by  deed 
or  by  will.  A  devise  of  the  lands  would  therefore  defeat 
the  tenancy.^'*  But  this  doctrine  is  not  always  followed 
elsewhere,  the  curtesy  being  held  to  attach,  notwithstand- 
ing the  married  woman  is  given  the  power  to  dispose  of  her 
lands  by  deed  or  by  will.  The  power  so  granted  to  her  is 
presumed  to  be  exercised  subject  to  the  husband's  curtesy.^" 

nett  V.  Dennett,  40  N.  H.  505 ;  McKee  v.  Pfont,  3  Dall.  486 ;  Munneslyn 
V.  Munneslyn,  2  Brev.  2;  Meramec  v.  Caldwell,  8  B.  Mon.  32;  Baykin  v. 
Rain,  28  Ala..  332 ;  Miller  v.  Miller,  Meigs  484. 

34  Clark  V.  Clark,  24  Barb.  581;  Thruber  v.  Townshend,  22  N.  Y.  517. 

35  See  Burke  v.  Valentine,  52  Barb.  412;  Scott  V.  Guernsey,  60  Barb. 
163;  Rider  f.  Hulse,  24  N.  Y.  372,  N.  B.  75. 

30  Cooke's  Appeal,  132  Pa.  St.  533.  A  husband  who  qualifies  as 
executor  under  his  wife's  will,  is  denied  curtesy,  when  inconsistent 
with  a  devise  in  the  will.  Tiddy  v.  Graves,  126  N.  C.  620,  36  S.  E.  Rep. 
127,  37  Id.  513. 

101 


SECTION  III. 

DOWER. 

Section-  85.  Dower  defined  and  explained. 

86.  To  what  estates  dower  attaches. 

87.  Dower   in   equitable   estates. 

88.  Dower  in  lands  of  trustee. 

89.  Dower  in  mortgages. 

90.  Dower  in  proceeds  of  sale. 

91.  Seisin  required  in  the  husband  during  coverture. 

92.  Continued  —  Defeasible  or  determinable  seisin. 

93.  Duration  of  the  seisin. 

94.  Instantaneous   seisin. 

95.  Marriage  must  be  legal. 

96.  How  dower  may  be  lost  or  barred  by  act  of  the  husband. 

97.  Continued  —  By  wife's  release  during  coverture. 

98.  Continued  —  By  elopement  and  divorce. 

99.  Continued  —  By  loss  of  husband's  seisin. 

100.  Continued  —  By  estoppel  in  pais. 

101.  Continued  —  By  statute  of  limitations. 

102.  Continued  —  By  exercise  of  eminent  domain. 

103.  Widow's  quarantine. 

104.  Assignment  —  Two  modes. 

105.  Continued  —  Of  common  right, 

106.  Dower  against  common  right. 

107.  By  whom  may  dower  be  assigned. 

108.  Remedies  for  recovery  of  dower. 

109.  Demand  necessary. 

110.  Against  whom  and  where  the  action  is  brought, 

111.  Continued  —  Abatement  by  death  of  widow. 

112.  Judgment,  what  it  contains. 

11.3.  Continued  —  Damages,  when  recoverable. 

114.  Continued  —  Assignment  after  judgment. 

115.  Assignment  —  Where  two  or  more  widows  claim  dower. 

116.  Decree  of  sum  of  money  in  lieu  of  dower. 

117.  Dower  barred  by  jointure. 

118.  Continued  —  By  testamentary  provision. 

119.  Continued  —  By  statutory  provision  for  inheritance. 
102 


CH.    VII.]  DOWER.  §    85 

§  85.  Dower  defined  and  explained. —  Dower  is  that  interest 
or  estate  which  is  provided  by  the  law  for  the  widow  out  of 
the  real  property  of  the  husband.^  At  common  law,  and 
generally  in  this  country,  it  is  an  estate  for  life  in  one-third 
of  his  lands,  tenements,  and  hereditaments.-  During  cover- 
ture, her  interest,  though  an  incumbrance,  is  but  an  in- 
choate right,  which  she  can  neither  assign,  release,  nor  ex- 
tinguish, except  by  joining  in  the  deed  of  her  husband,  as 
explaiijed  later  on.  It  cannot  at  this  stage  be  considered 
even  a  chose  in  action;  and  it  is  not  affected  by  any  ad- 
verse possession  until  the  death  of  the  husband,  when  her 
right  of  action  accrues  and  the  statute  of  limitation  begins 
to  run  against  her;  although  such  possession  is  sufficient  to 
bar  the  husband's  interest  in  the  land.^    Upon  the  death  of 

1  2  Bla.  Com,  132;  Scribner  Dower  114,  147;  Park  Dower  10,  32;  Co. 
Lit.  31  *;  1  Cruise's  Dig.  13. 

2  2  Bla.  Com.  180;  Co.  Lit.  .30  a;  1  Washburn  on  Pxeal  Prop.  187-189; 
Moore  v.  New  York,  8  N.  Y.  110;  Reaume  v.  Chambers,  22  Mo.  36.  In 
some  of  the  States,  the  widow  has  one-third  in  fee,  instead  of  for  life, 
while  in  others  it  is  enlarged  to  one-half,  but  except  in  respect  to 
quantity,  the  estate  has  the  same  general  qualities  throughout  the 
United  States.  See  Burk  r.  Barron,  8  Iowa  1.34;  Lucas  v.  Sawyer,  17 
Iowa  519;  Wilds  r.  Toms,  123  Iowa  747,  99  N.  W.  Rep.  700;  Sturgis  r. 
Ewing,  18  111.  176;  Noel  r.  Ewing,  9  Ind.  37;  Gaylord  v.  Dodge,  13 
Ind.  47.  In  Louisiana  and  California,  the  widow  has  one-half  of  all 
the  common  property  of  her  husband.  Beard  r.  Knox,  .5  Cal.  2.'32.  And, 
although  there  are  statutes  in  a  number  of  the  States  giving  the  widow 
an  interest  in  the  personal,  as  well  as  the  real  property  of  the  husband, 
dower  technically  can  only  be  had  out  of  real  estate  of  inheritance  as 
above  stated.     Dow  v.  Dow,  36  Me.  211;  see  post,  Sec.  86. 

8  Durham  V.  Angier,  20  Me.  242;  Moore  v.  Frost,  3  N.  H.  127;  Gun- 
nison V.  Twitchell,  38  N.  H.  68;  Learned  V.  Cutler,  18  Pick.  9;  Moore 
V.  New  York,  8  N.  Y.  110;  McArthur  v.  Franklin,  16  Ohio  St.  200; 
Miller  r.  Pence  (111.),  23  N.  E.  Rep.  10.30;  Williams  v.  Williams  (Ky.), 
12  S.  W.  Rep.  760;  Winters  v.  DeTurk,  25  W.  N.  C.  511,  19  Atl.  Rep. 
354.  And  it  is  so  far  an  interest  in  the  land,  that  if  the  renunciation 
of  her  dower  right  has  been  obtained  by  fraud  of  her  husband,  witii 
knowledge  of  the  purchaser,  the  wife  may  avoid  the  deed  in  respect  to 
her  inchoate  dower  right.  Somar  r.  Canady,  58  N.  Y.  298,  13  Am. 
Rep.  523;  Buzick  V.  Buzick,  44  Iowa  259,  24  N.  W.  Rep.  740;   White 

103 


§  85  DOWEi;.  [part  i. 

the  husband,  the  wife  surviving,  the  right  becomes  con- 
summate; it  is  then  a  chose  in  action  which  entitles  her  to 
have  certain  of  her  husband's  lands  set  out  to  her.  She 
has  not  yet  an  estate,  simply  a  consummate  right  to  an 
estate,  which  she  can  assign  in  equity,  and  release  at  com- 
mon law  to  one  in  possession,  but  which  was  incapable  of 
assignment  at  common  law,  like  all  other  choses  in  action.* 

r.  Graves,  107  Mass.  325,  9  Am.  Rep.  38.  In  Towa,  the  widow  is  en- 
titled  to  a  third  of  her  husband's  lands.  Wild  v.  Toms,  12.3  Iowa  747, 
99  N.  W.  Rep.  700.  This  is  also  the  rule  in  Missouri  (Phillipps  v. 
Hardenburg,  181  Mo.  463,  80  S.  W.  Rep.  891),  and  Georgia  (McDonald 
V.  McDonald,  120  Ga.  403,  47  S.  E.  Rep.  918)  ;  Indiana  (Helt  v.  Kelt, 
152  Ind.  142,  52  N.  E.  Rep.  699)  ;  Kentucky,  Anderson  v.  Fitzpa trick 
(49  S.  W.  Rep.  786)  and  all  of  the  United  States,  where  the  common 
law  obtains.  Dower  is  barred  by  adverse  possession,  for  the  statutory 
period,  in  Michigan.  Butcher  v.  Butcher  (1904),  100  N.  W.  Rep.  604, 
Also,  in  Missouri,  Harrison  r.  McReynolds,  183  Mo.  533,  82  S.  W.  Rep. 
120;  New  York,  VVetyen  v.  Fick,  178  N.  Y.  223,  70  N.  E.  Rep.  497. 
But  see,  Lucas  v.  Whitacre  (Iowa  1903),  96  N.  W.  Rep.  776;  Grober 
c.  Clements,  71  Ark.  565,  76  S.  W.  Rep.  555;  Brumback  v.  Brumback, 
198  111.  66,  64  N.  E.  Rep.  741;  Sill  v.  Sill,  185  111.  594,  57  N.  E.  Rep. 
812.  Barred,  in  Kentucky,  under  fifteen  year  statute.  Winchester  v. 
Keith,  70  S.  W.  Rep.  664. 

*  Johnson  r.  Shields,  32  Me.  424;  Hoxsie  v.  Ellis,  4  R.  I.  123;  Lund 
V.  Woods,  11  Mete.  566;  Croade  V.  Ingraham,  13  Pick.  33;  Jackson  v. 
Vanderheyden,  17  Johns.  167;  Cox  V.  Jagger,  2  Cow,  651;  Stewart  t'. 
McMartin,  5  Barb.  438;  Harrison  v.  Wood,  1  Dev.  &  B.  Eq.  437;  Salt- 
marsh  V.  Smith,  32  Ala.  404;  Strong  v.  Bragg,  7  Blackf.  63;  Torrey  V. 
Minor,  1  Smed.  &  M.  Ch.  489;  Shield  v.  Batts,  5  J.  J.  Marsh.  12; 
Stewart  v.  Chadwick,  8  Iowa  463;  Brown  v.  Meredith,  2  Keen,  527; 
Corey  v.  The  People,  45  Barb.  265.  And  likewise  the  dower  right  before 
assignment  cannot  be  sold  under  attachment  or  execution.  Rausch  r. 
Moore,  48  Iowa  611,  30  Am.  Rep.  412;  Brown  v.  Meredith,  2  Keen 
527;  Gooch  V.  Atkins,  14  Mass.  378;  Green  v.  Putnam,  1  Barb.  500; 
Saltmarsh  v.  Smith,  38  Ala.  404.  In  Vermont  and  Connecticut  she  is 
held  to  have  an  estate  in  common  with  the  heirs  from  the  death  of  her 
husband.  Dummerston  v.  Newfane,  37  Vt.  13;  Wooster  V.  Hunt's  Ly- 
man Iron  Co.,  38  Conn.  257.  And  her  interest  before  assignment  is 
sufficiently  vested  to  enable  her  to  secure  an  injunction  against  the  in- 
fliction of  injuries  on  the  property  by  the  heir,  or  by  any  other  person, 
whether  he  is  a  stranger  to  the  land  or  the  tenant  of  the  freehold. 
Shepard  v.  Manhattan  Ry.  Co.,  57  N.  Y.  Super.  5.  In  Alabama  and 
104 


CH.    VII.]  DOWER.  §    85 

It  only  becomes  an  estate  in  the  lands,  when  it  has  been 
set  out  to  her.  The  act  of  setting  out  the  dower  is  called 
the  assignment  of  dower.  From  this  time  on,  she  has  a  life 
estate,  with  all  the  rights,  incidents,  and  disabilities,  which 
pertain  to  that  class  of  estates.'  In  some  of  the  States,  the 
wife  holds  her  dower  subject  to  the  claims  of  her  husband's 
creditors,  but  as  a  general  rule  her  dower  right  takes  pre- 
cedence to  such  claims.*"'     And  because  of  this  difference  in 

Indiana  she  has  such  an  interest  in  the  land,  as  that  it  may  be  assigned 
before  it  has  been  set  out.  Powell  v.  Powell,  10  Ala.  900;  Strong  v. 
Clem,  12  Ind.  37.  And  even  when  the  dower  right  before  assignment 
cannot  in  law  be  conveyed,  except  by  way  of  release  to  the  tenant  of 
the  freehold,  a  conveyance  or  assignment  to  a  stranger  will  be  valid  in 
equity,  and  the  assignee  may  bring  the  action  for  assignment  in  the 
name  of  the  widow.  Eobie  v.  Flanders,  33  N.  H.  524;  Lamar  v.  Scott, 
3  Rich.  Eq.  516;  Potter  v.  Everitt,  7  Ired.  Eq.  152;  Powell  V.  Powell, 
10  Ala.  900;  Bray  v.  Conrad  (Mo.),  13  S.  W.  Rep.  957;  Serry  v.  Curry, 
26  Neb.  353.  She  can  also  mortgage  her  dower  right  before  assign- 
ment. Mut.  L.  Ins.  Co.  V.  Shipman,  119  N.  Y.  324;  overruling  s.  c. 
50  Hun.  578. 

5  Windham  v.  Portland,  4  Mass.  384;  Jones  v.  Brewer,  2  Pick.  314; 
Powell  17.  Monson,  3  Mason,  368;  Lawrence  v.  Brown,  5  N.  Y.  394; 
Andrews  v.  Andrews,  14  N.  J.  L.  141;  Norwood  v.  Marrow,  4  Dev.  & 
B.  442;  Sotton  v.  Burrows,  2  Murph.  79;  Thompson  v.  Stacy,  10  Yerg. 
423.  As  soon  as  judgment  has  been  entered  up,  she  may  release  or 
transfer  the  estate.  Leavitt  V.  Lamprey,  13  Pick.  382.  Serry  v.  Curry, 
26  Neb.  853.  And  when  the  habere  facias  has  been  issued,  she  may  en- 
ter upon  the  land.  Co.  Lit.  37  b,  n;  Parker  v.  Parker,  17  Pick.  236; 
Evans  v.  Webb,  4  Yeats  424.  But  if  the  assignment  is  subsequently  set 
aside,  she  may  be  treated  as  a  disseizor  or  trespasser  from  the  time  of 
her  entry.  4  Kent's  Com.  61;  Hildreth  v.  Thompson,  16  Mass.  191; 
Jackson  v.  O'Donaghy,  7  Johns.  247;  Sharply  v.  Jones,  5  Ilarr.  373; 
McCully  t'.  Smith,  2  Bail.  103.  After  it  is  set  out  to  her,  she  holds 
her  dower  land  of  her  husband,  and  not  of  the  heir  or  tenant.  It  is 
not  the  grant  of  the  heir,  and  the  grant  by  the  heir  of  the  dower  land 
after  her  death,  incorporated  in  the  deed  of  assignment,  is  a  grant  of 
the  reversion  and  not  of  a  technical  remainder.  Baker  r.  Baker,  4 
Me.  67;  Conant  V.  Little,  1  Pick.  189;  Adams  v.  Butts,  9  Conn.  79; 
Lawrence  v.  Brown,  5  N.  Y.  394. 

8  A  judicial  sale,  for  the  debts  of  the  husband,  does  not  bar  dower,  in 
Nebraska.  Martin  v.  Abbott,  95  N.  W.  Rep.  356;  or  Ohio,  Jewett  V. 
Feldheiser,  67  N.  E.  Rep.  1072;  or  Missouri,  Duke  v.  Brandt,  51  Mo.  221. 

105 


§  86  DOWL.?.  [part  I. 

the  character  of  the  widow's  estate,  her  estate  as  dowress  will 
not  merge  into  the  estate  in  reversion  which  she  may  acquire 
by  inheritance  from  her  son  if  it  should  prove  to  be  against 
her  wishes  and  her  interests.^ 

§  86.  In  what  estates  she  has  dower. —  The  widow  has  dower 
in  all  freehold  estates  of  inheritance,  which  her  issue,  if 
any,  could  have  inherited  as  heir  of  the  husband,  and  of 
which  he  was  seised  during  coverture.  It  therefore  includes 
everything  that  is  comprehended  under  the  terms  lands,  tene- 
ments, and  hereditaments,  corporeal  and  incorporeal.**     The 

When  it  is  stated  that  in  some  of  the  States  the  dower  right  is  sub- 
ject to  the  claim  of  creditors,  it  is  meant  that  a  judicial  sale  for  debt 
will  bar  the  wife's  dower  right,  and,  it  being  inchoate,  she  cannot  pro- 
tect it.  Kirke  r.  Dean,  2  Binn.  347;  Reed  v.  Morrison,  12  Serg.  &  R. 
18;  Lozear  v.  Porter,  87  Pa.  St.  513,  30  Am.  Rep.  380;  Taylor  i:  High- 
berger,  65  Iowa  134.  But  it  will  not  be  barred  by  the  assignment  for 
benefit  of  creditors,  or  by  sale  in  bankruptcy.  Keller  r.  Michael,  2 
Yeates  300;  Eberle  t\  Fisher,  13  Pa.  St.  520;  Lozear  r.  Porter,  87  Pa. 
St.  513,  30  Am.  Rep.  380;  Bryar's  Appeal,  111  Pa.  St.  81.  But  the 
general  rule  is,  that  it  cannot  in  any  manner  be  barred  by  a  sale  for 
debts.  Stinson  v.  Sumner,  9  Mass.  149;  Griffin  v.  Reece,  1  Harr.  508; 
Lewis  r.  Coxe,  5  Harr.  403;  Hinchman  r.  Stiles,  10  N.  .1.  Eq.  361; 
Coombs  f.  Young,  4  Yerg.  218;  Sisk  r.  Smith,  6  111.  .'>03;  Davis  V. 
Townsend  (S.  C),  10  S.  E.  Rep.  837.  But  if  the  land  is  under  attach- 
ment before  marriage,  a  sale  of  it  will  defeat  the  wife's  dower.  Brown 
t*.  Williams,  31  Me.  303;  Sanford  v.  McLean,  3  Paige  117;  Shiell  v. 
Sloan,  22  S.  C.  151. 

7  Appeal  of  Fink,  25  W.  N.  C.  78,  18  Atl.  Rep.  621.  A  merger  of 
the  widow's  dower  does  not  occur,  when  she  acquires  quit  claim  deeds 
from  all  the  heirs,  as  a  contrary  intent  would  be  presumed  from  the 
fact  that  a  continuance  of  the  lesser  estate  would  be  beneficial  to  the 
widow.  Wettlaufer  v.  Ames  (Mich.  1903),  94  N.  W.  Rep.  950.  But  see 
Kreamer  v.  Fleming,  191  Pa.  St.  534,  43  Atl.  Rep.  388,  44  W.  N.  C.  201; 
Copeland  v.  Burkett   (Tenn.),  45  S.  W.  Rep.  533. 

8  2  Bla.  Com.  131;  Co.  Lit.  40  a ;  1  Washburn  on  Real  Prop.  194-195. 
Dower  may  be  claimed  out  of  rents  and  other  incorporeal  hereditaments, 
except  annuities  not  issuing  out  of  land.  Co.  Lit.  32  a  ;  2  Bla.  Com. 
1.32;  Aubin  V.  Daly,  4  B.  &  Aid.  59;  Chase's  Case,  1  Bhind  227;  4 
Kent's  Com.  401.  But  the  incorporeal  hereditament,  like  corporeal 
hereditaments,  must  be  an  estate  of  inheritance.  1  Washburn  on  Real 
Prop.  210;  Stoughton  v.  Leigh,  1  Taunt.  410;  Weir  i'.  Tate,  4  Ircd.  Eq. 

106 


CH.    VII.]  DOWER.  §    86 

widow's  claim  for  dower  will  in  nowise  be  affected  by  the 
source  of  the  consideration  paid  for  the  land,  though  it  con- 
sisted of  money  wrongfully  taken  from  her  own  property, 
during  her  insanity,  and  which  the  guardian  requires  to  be 
returned.  The  return  of  the  money  is  not  inconsistent  with 
her  claim  of  dower.^  She  has  no  dower  in  estates  per  auter 
vie,  or  for  years,  except  where  these  estates,  or  certain,  of 
them,  are  given  by  statute,  the  incidents  and  characteristics 
of  freehold  estates  of  inheritance.^"  On  the  other  hand, 
while  the  wife  has  dower  in  lands  which  the  husband  holds 
as  tenant  in  tail,  as  she  has  in  any  other  estate  of  inheritance, 
of  which  he  is  seised  during  coverture,  and  which  attaches 

264;  Chase's  Case,  1  Bland  228.  She  has  dower  in  the  crops  planted  by 
her  husband,  and  growing  at  his  decease.  1  Washburn  on  Real  Prop. 
211;  Ralston  v.  Ralston,  3  Green  (Iowa)  533.  In  Massachusetts,  she  is 
not  dowable  in  wild  lands.  Conner  r.  Shepherd,  15  Mass.  164.  But  in 
the  other  States,  since  the  tenant  for  life  has  a  right  to  clear  wild  lands, 
in  order  to  make  them  available  for  use,  the  widow  is  granted  her 
own  dower  in  such  land.  4  Kent's  Com.  76;  Hastings  V.  Cruckleton,  3 
Yeates  261;  Findlay  v.  Smith,  6  Munf.  1.34;  Ballentine  V.  Payner,  2 
Hayw.  110;  Owen  v.  Hyde,  6  Yer.  334;  Alexander  v.  Fisher,  7  Ala.  514. 
See  ante.  Sec.  62.  She  is  likewise  dowable  in  the  mines,  which  were 
opened  and  worked  by  her  husband.  Lenfers  v.  Henke,  73  111.  405,  24 
Am.  Rep.  263;  Hendrix  r.  McBeth,  61  Ind.  473,  28  Am.  Rep.  680.  There 
is  no  dower  in  a  burial  lot.  Price  r.  Price,  54  Hun  349.  In  Missouri, 
a  wife  is  not  restricted  to  estates  of  inheritance,  but  also  has  dower  in 
leasehold  estates.  Phillipps  t:  Hardenburg,  181  Mo.  463,  80  S.  W. 
Rep.  891.  In  Georgia,  dower  extends  to  any  lands  of  which  the  hus- 
band died  seised  or  possessed,  but  not  to  lands  under  an  agreement 
of  purchase,  on  which  nothing  had  been  paid.  McDonald  v.  McDonald, 
120  Ga.  403,  47  S.  E.  Rep.  918. 

oRannells  f.  Isgrigg,  99  Mo.  19. 

loGillis  V.  Brown,  5  Cow.  388;  Spangler  v.  Spangler,  1  Md.  Ch.  36; 
Fisher  V.  Grimes,  1  Smed.  &  M.  Ch.  107;  Ware  v.  Washington,  6  Smed. 
&  M.  737;  Burris  v.  Page,  12  Mo.  3.58;  1  Washburn  on  Real  Prop.  194, 
105;  Whitmire  V.  Wright.  22  S.  C.  440.  But  see  Goodwin  t?.  Goodwin,  33 
Conn.  314,  which  holds  that  the  widow  has  no  dower  out  of  an  estate 
for  999  years,  although  the  statute  converts  this  leasehold  into  an  es- 
tate of  inheritance.  Concerning  estates  per  auter  vie,  see  ante.  Sec.  47; 
and  in  respect  to  leaseholds  made  estates  of  inheritance,  see  post.  See. 
128.    Phillipps  V.  Hardenburg,  181  Mo.  463,  80  S.  W.  Rep.  891. 

.  107 


§  86  DOWER.  [part  I. 

although  he  may  die  without  heirs  capable  of  taking  the  es- 
tate, yet  if  the  character  of  the  estate  tail  is  changed  by 
statute,  so  that  the  interest  of  the  tenant  in  tail  is  reduced 
to  a  life  estate,  with  a  remainder  in  the  heirs  of  his  body, 
his  wife  cannot  claim  dower  in  such  an  estate."  The  in- 
heritance must  also  be  a  continuous  and  entire  one.  The 
interposition  of  a  freehold  estate  between  the  husband's  es- 
tate in  possession  and  his  reversion  or  remainder  in  fee  will 
prevent  the  wife's  dower  from  attaching.  It  can  only  at- 
tach when  the  interposed  freehold  terminates  during  cover- 
ture." For  still  stronger  reasons  she  cannot  claim  dower 
in  her  husband's  reversions  and  remainders,  where  the  pre- 
ceding estate  is  a  freehold.^^  And  so,  also,  where  her  hus- 
band's estate  is  a  conditional  limitation.^*     Nor  can  she  for 

"  Trumbull  v.  Trumbull,  149  Mass.  200. 

12  Lewis  Bowie's  Case,  11  Rep.  80;  Crump  V.  Norwood,  7  Taunt.  362; 
Brooks  V.  Everett,  13  Allen  458;  Blood  r.  Blood,  23  Pick.  80;  Robinson 
V.  Codman,  1  Summ.  130;  Dunham  r.  Osborne,  1  Paige  6.34;  Shoemaker 
V.  Walker,  2  Serg.  &  R.  556;  Arnold  v.  Arnold,  8  B.  Mon.  202;  3  Kent's 
Com.  39;  1  Washburn  on  Real  Prop.  195.  If  the  interposed  estate  be 
one  for  years,  it  will  not  affect  the  dower  right,  since  the  entire  seizen  is 
in  the  husband.  Bates  r.  Bates,  1  Ld.  Raym.  326;  Hitchens  v.  Hitchens, 
2  Vern.  403.  According  to  the  early  common  law,  a  contingent  re- 
mainder would  be  defeated  by  the  coming  together  of  the  reversion 
and  the  life  estate  in  one  person.  It  was  then  held  that  the  widow 
would  have  dower,  notwithstanding  the  interposed  contingent  remainder. 
Hooker  v.  Hooker,  Ca.  Temp.  13;  Purefoy  v.  Rogers.  2  Saund.  380.  But 
the  contingent  remainder  cannot  now  be  defeated  by  merger  of  the  life 
estate  in  the  reversion.  1  Washburn  on  Real  Prop.  197 ;  Williams  on 
Real  Prop.  281,  282.  The  wife  has  no  dower  in  future  estates,  in 
Rhode  Island.  Sammis  v.  Sammis,  51  Atl.  Rep.  105.  See,  also,  Stewart 
V.  Crysler,  65  N.  Y.  S.  483,  52  App.  Div.  597;  Young  V.  Morehead,  94 
Ky.  608,  23  S.  W.  Rep.  511;  Hill  V.  Pike,  174  Mass.  582.  55  N.  E. 
Rep.  324;  Warren  v.  Williams,  25  Mo.  App.  22;  Houston  v.  Smith,  88 
N.  C.  312. 

13  See  post,  Sec.  294. 

1*  Bush  V.  Bush,  5  Del.  ch.  144. 

15  1   Washburn  on  Real  Prop.   198;   Co.  Lit.  37  b;   Duncomb  v.  Dun- 
comb,  3  Lev.  437;  Maybury  r.  Brien,  15  Pet.  21;  Babbitt  V.  Day,  41  N. 
J,  Eq.  392.     See  post,  Sees.  176,  179. 
108 


CII.    VII.]  DOWER.  §    86 

the  same  reason  have  dower  in  lands,  which  her  husband 
holds  in  joint  tenancy,  until  the  tenancy  has  been  terminated 
by  partition  or  by  the  death  of  the  other  tenant.^'  But  the 
estate  of  a  tenant  in  common  is  subject  to  dower;  the  dower 
attaches  to  the  husband's  undivided  interest  in  the  land  be- 
fore partition,  and  afterwards  to  the  share  set  out  to  him.^" 
Estates  held  by  a  partnership  for  partnership  purposes  are 
also  subject  to  dower;  but  the  dower  is  subordinate  to  the 
demands  that  might  be  made  by  partnership  creditors  against 
the  partnership  property.^^  In  Michigan  it  is  provided  by 
statute  that  the   wives   of  non-resident   landowners  cannot 

i«  1  Washburn  on  Real  Prop.  199;  Reynard  v.  Spence,  4  Beav.  103 
Potter  V.  Wheeler,  13  Mass.  .'504;  Totten  V.  Stuyvesant,  3  Edw.  Ch.  500 
Wilkinson  v.  Parish,  3  Paige  653;   Lloyd  v.  Conover,  25  N.  J.  L.  48 
Baker  v.  Leibert,  125  Pa.  St.  106.     In  Iowa,  the  wife's  dower  is  barred 
by  partition   in  consequence  of  a  statute  which  confines  her  dower  to 
estates  which  "  had  not  been  sold  on  execution  or  on  any  other  judicial 
sale."     Williams  v.  Wescott,  77  Iowa  332. 

17  Burnside  v.   Merrick,   4  Mete.   537;    Dyer  t'.   Clark,   5  Mete.   562 
Smith  V.  Jackson,  2  Edw.   Ch.  28;   Coster  v.  Clark,  3  Edw.  Ch.  428 
Hawley  v.  James,  5  Paige  451 ;   Goodburn  V.  Stevens,  1  Md.  Ch.  437 
Pierce   v.    Trigg,    10   Leigh    406;    Sumner   v.   Hampson,    8    Harr.   328 
Woolridge  r.  Wilkins,  3  How.    (Miss.)    372;  Bopp  v.  Fox,  63  111.  540 
Duhring  v.  Duhring,  20  Mo.  174.     But  in  order  that  the  claims  of  the 
creditors  may  take  precedence  to  the  widow's  dower  in  respect  to  the 
land  held  by  two  or  more,  the  land  must  be  in  truth  the  property  of 
the  partnership.     The  character  of  their  joint  estate  is  determined  en- 
tirely by  their  intention,  and  it   is  possible  for  partners  to  hold  real 
estate  as  tenants  in  common,  without  its  becoming  partnership  prop- 
erty.    In  such  a  case,  the  widow  takes  her  dower  free  from  the  claims 
of  creditors.     Wheatley  r.  Calhoun,  12  Leigh  264 ;  Markham  v.  Merrett, 
8  How.   (Miss.)  437;  Hale  v.  Plummer,  6  Ind.  121.     There  is  no  dower 
in  partnership  realty,  until  all  creditors  are  paid  and  partners'  equities 
are   adjusted.     Hauptmann   r.  Hauptmann,   86   N.   Y.   S.  427,   91    App. 
Div.    197;   Riddell   r.  Riddell,   85  Hun.  482,  33  N.   Y.  99;    Woodward- 
Homes  Co.  V.  Mudd,  27  L.  R.  A.  340;  Holten  r.  Guinn,  95  Fed.  Rep.  450; 
Welch  V.  McKenzie,  66  Ark.  251,  ."50  S.  W.  Rep.  505;  Ferris  v.  Van  In- 
gen,  110  Ga.   102,  35  S.  E.  Rep.  347;  Davidson  v.  Richmond,  69  S.  W. 
Rep.   794;   Sparger  v.  Moore,   117  N.  C.  449,  23  S.  E.  Rep.  359.     The 
wife  is  not  endowed,  in  Michigan,  as  to  land  deeded  to  a  third  party, 
under  contract  of  purchase,  to  guarantee  payment  of  the  purchase  price. 

109 


§  87  DOWER.  [part  I. 

claim  dower  in  lands  which  they  have  sold  and  conveyed 
during  their  non-residence.*® 

§  87.  Tower  in  equitable  estates. —  According  to  the  early 
English  law  there  was  no  dower  in  equitable  estates,  and 
the  Statute  of  Uses  expressly  excepted  the  estates  executed 
by  it 'from  the  claims  of  dower.*®  But  at  present,  in  Eng- 
land, and  generally  in  this  country,  the  widow  is  entitled  to 
dower  in  all  classes  of  equitable,  as  well  as  legal,  estates.-"  In 
the  same  manner  now,  she  has  dower  in  the  husband's  equity 
of  redemption,  which  gives  her  the  right  of  one,  who  is  in- 

Stephens  v.  Leonard,  80  N.  W.  Rep.  1002.  See,  also,  Kager  v.  Bren- 
neman,  62  N.  Y.  S.  339,  47  App.  Div.  63;  Hendrickson  v.  Grable,  157 
Mo.  42,  57  S.  W.  Rep.  784. 

18  Bear  v.  Stahl,  61  Mich.  203.  An  alien  widow  of  a  resident  land- 
owner was  held  entitled  to  dower,  in  Missouri.  Stokes  v.  O'Fallasey, 
2  Mo.  32.     See  also,  Davis  v.  Darrow,  12  Wend.   (N.  Y.)   65. 

10  1  Washburn  on  Real  Prop.  202,  203;  4  Kent's  Cora.  43;  1  Spence 
Eq.  Jur.  501 ;  Dixon  v.  Saville,  1  Bro.  C.  C.  326;  D'Arey  v.  Blake,  2  Sch. 
&  Lef.  387 ;  Maybury  V.  Brien,  15  Pet.  38  ;>  Hamlin  v.  Hamlin,  19  Me. 
141. 

aoHawley  V.  James,  5  Paige  318;  Dubs  v.  Dubs,  31  Pa.  St.  151; 
Shoemaker  r.  Walker,  2  Serg.  &  R.  554 ;  Rowton  v.  Rowton,  1  Hen.  &  M. 
92;  Thompson  v.  Thompson,  1  Jones  (N.  C. )  Eq.  430;  Dawson  V.  Mor- 
ton, 6  Dana  471,  3  Stew.  &  P.  447;  Clapp  v.  Galloway,  56  Mich.  272. 
Contra,  Hamlin  v.  Hamlin,  19  Me.  141;  Stelle  v.  Carroll,  12  Pet.  201. 
In  Iowa,  a  widow  is  not  dowable  in  lands  held  by  her  husband  imder  a 
preemption  right.  Bowers  V.  Keesecker,  14  Iowa  301.  But  in  several 
of  the  States  it  has  been  held  that  the  widow  has  dower  in  lands  which 
her  husband  had  contracted  to  purchase,  where  he  died  before  the  deed 
was  delivered.  Church  c.  Church,  3  Sandf.  Ch.  434;  Smiley  v.  Wright, 
2  Ohio  512;  Robinson  V.  Miller,  1  B.  Mon.  93;  Davenport  v.  Farrar,  2 
111.  314;  Reed  r.  Whitney,  7  Gray  533;  Lobdell  V.  Hayes,  4  Allen  187; 
Joseph  V.  Fisher,  122  Ind.  399;  Young  V.  Young,  45  N.  J.  Eq.  27; 
Bowen  v.  Brockenbrough,  119  Ind.  560;  see  contra,  Morgan  V.  Smith, 
25  S.  C.  337;  Morgan  v.  Wright,  25  S.  C.  601.  But  if  the  contract 
of  sale  rests  upon  a  condition  precedent,  which  was  not  performed  by 
the  husband,  the  wife's  dower  does  not  attach.  Walters  v.  Walters 
(III.),  23  N.  E.  Rep.  1120;  Beebe  r.  Lyle,  73  Mich.  114.  In  some  of 
the  States  the  old  English  rule  still  prevails,  that  dower  cannot  be  had 
in  equitable  estates.  See  cases  cited  supra. 
110 


CH.    VII.]  DOWER.  §   88 

terested   in   the   mortgaged   property,   subject  to  the  mort- 
gage." 

§  88.  Dower  in  lands  of  trustee. —  The  wife  has  no  dower  in 
lands  which  her  husband  holds  as  trustee,  except  so  far  as 
he  may  at  the  same  time  have  an  equitable  interest  therein. 
And  this  rule  is  applied  to  every  kind  of  trust,  whether  ex- 
press or  implied,  as  for  example,  where  the  husband,  be- 

21  Smith  r.  Eustis,  7  Me.  41 ;  Young  v.  Tarbell,  37  Me.  509 ;  Moore  r. 
Esty,  5  N.  H.  479;  Eaton  r.  Simonds,  14  Pick.  98;  Fay  v.  Cheney,  14 
Pick.  399;  Farwell  v.  Cotting,  8  Allen  211;  Savage  V.  Dooley,  28  Conn. 
411;  Hitchcock  v.  Harrington,  6  Johns.  290;  Jackson  t\  Dewitt,  0  Cow. 
316;  Collins  t'.  Torry,  7  Johns.  278;  Montgomery  v.  Bruere,  5  N.  J.  L. 
265;  Stopplebein  v.  Shulte,  1  Hill  (S.  C),  200;  Heth  v.  Cocke,  1  Rand. 
344;  Mclver  r.  Cherry,  8  Humph.  712;  Whitehead  v.  Middleton,  2  How. 
(Miss.)  692;  Taylor  t;.  Fowler,  18  Ohio  567;  Taylor  v.  McCrackin,  2 
Blackf.  262;  Mayburg  r.  Brien,  15  Pet.  38;  Burrall  r.  Hurd,  61  Mich. 
608;  Burrall  r.  Clark,  61  Mich.  624;  N.  Y.  Life  Ins.  Co.  v.  Mayer,  14 
Daly  318;  Mandell  v.  McClave,  46  Ohio  St.  407;  Burnet  v.  Burnet  (N. 
J.),  18  Atl.  Rep.  374.  See  contra,  In  re  Thompson's  Estate,  6  Mackey 
536.  If  the  mortgage  is  foreclosed,  her  right  of  dower  is  defeated. 
Stow  V.  Tifft,  15  Johns.  458;  Frost  i;.  Peacock,  4  Edw.  Ch.  678;  Reed 
V.  Morrison,  12  Serg.  &  R.  18;  Elder  v.  Robbin,  122  Ind.  203;  Seibert 
V.  Todd,  31  S.  C.  206.  On  the  other  hand,  if  the  mortgage  is  satisfied 
by  one  who  is  under  a  primary  liability  to  pay  it  off,  the  dower  right 
attaches  to  the  property  free  from  the  mortgage;  but  if  the  lieir  or 
purchaser  paj-s  the  mortgage  to  prevent  foreclosure,  in  order  that  the 
widow  may  claim  a  proportionate  benefit  from  the  satisfaction  of  the 
mortgage,  she  must  contribute  her  share  towards  the  expenses.  Smith 
r.  Stephens,  164  Mo.  415,  64  S.  W.  Rep.  260;  Hatch  v.  Palmer,  58  Me. 
292;  Simonton  r.  Gray,  34  Me.  50;  Hinds  v.  Ballou,  44  N.  H.  619; 
Ballard  r.  Bowers,  10  N.  H.  500;  McCade  r.  Swap,  14  Allen  118; 
Toomey  r.  Mclean,  105  Mass  122;  Wedge  v.  Moore,  6  Cush.  8;  Collins 
V.  Torrey,  7  Johns.  278;  Coats  v.  Cheever,  1  Cow.  400;  Hitchcock  r.  Har- 
rington, 6  Johns.  290;  Matthewson  v.  Smith,  1  R.  I.  22;  Klinck  v.  Keck- 
ley,  2  Hill  Ch.  250;  Carter  v.  Goodin,  3  Ohio  St.  75;  Bank  of  Com- 
merce V.  Owens,  31  Md.  320,  1  Am.  Rep.  60;  Noffts  v.  Ross,  29  Hi. 
Bpp,  .301;  Everson  v.  McMullen,  113  N.  Y.  293.  Where  the  dower  right 
is  subject  to  the  mortgage,  and  the  mortgagee  is  in  possession,  the  action 
for  dower  cannot  be  instituted  until  the  mortgage  has  been  redeemed. 
A  suit  for  redemption  must  precede  the  assignment  of  dower.  Smith  f. 
Eustis.  7  Me.  41;  Richardson  v.  Skolfield,  45  Me.  386;  Cass  r.  Martin, 
0  N.  II.  25;  Van  Daync  V.  Thayer,  14  Wend.  233. 

Ill 


§    90  DOWER.  [part  I. 

fore  marriage,  has  entered  into  a  contract  for  the  sale  of 
the  land." 

§  89.  Dower  in  mortgage. —  The  mortgagee's  wife  has  no 
dower  in  the  mortgaged  premises  until  foreclosure.  This  is 
true  both  in  law  and  equity;  under  the  common  law,  as  well 
as  under  the  modern  lien  theory  of  mortgages.^^  And  this 
is  true,  although  the  deed  of  conveyance,  which  was  delivered 
as  a  mortgage,  appears  on  its  face  to  be  an  absolute  con- 
veyance. The  judgment  of  the  court  that  this  deed  was  a 
mortgage  would  bar  the  wife's  dower,  although  she  was  not 
made  a  party  to  the  action.''* 

§  90.  Dower  in  proceeds  of  sale. —  Whenever  it  is  necessary 
for  the  settlement  of  varied  interests  in  lands,  of  which  she 
is  dowable,  that  the  lands  should  be  sold,  her  dower  right  will 
follow  and  attach  to  the  share  in  the  proceeds  of  the  sale,  to 
which  her  husband  would  have  been  entitled.  This  is  gen- 
erally true,  for  whatever  cause  the  land  might  have  been 
sold.-^     But  it  has  been  held  that  she  is  not  entitled  to  dower 

22  4  Kent's  Com.  43,  46 ;  Coster  v.  Clarke,  4  Edw.  Ch.  429 ;  Prescott  v. 
Walker,  16  N.  H.  343;  Hopkinson  v.  Dumas,  42  N.  H.  303;  Brooks  V. 
Everett,  13  Allen  458;  Dean  v.  Mitchell,  4  J.  J.  Marsh  475;  Cooper  V. 
Whitney,  3  Hill  97 ;  Cowman  V.  Hall,  3  Gill  &  J.  398 ;  Bartlett  v.  Gouge, 
5  B.  Mon.  152;  Robinson  v.  Codman,  1  Sumn.  129;  Brown  V.  Cave,  23 
S.  C.  251;  Walker  v.  Rand  (111.),  22  N.  E.  Rep.  1006;  Hunkins  V.  Hun- 
kins  (N.  H.),  18  Atl.  Rep.  655.  A  wife  acquires  no  right  of  dower  in 
lands,  held  by  her  husband,  as  trustee  only.  Miller  v.  Miller,  148 
Mo.  13,  49  S.  W.  Rep.  852,     See  also.  Park  Dower,  100. 

23  4  Kent's  Com.  43 ;  1  Washburn  on  Real  Prop.  204 ;  Foster  v.  Dwinel, 
49  Me.  44;  Crittenden  v.  Johnson,  6  Eng.    (Ark.)   44. 

2-»  Lea  V.  Woods,  66  Iowa  304.  A  widow  endowed  of  mortgaged  land, 
in  Missouri,  is  chargeable  with  that  proportion  of  the  mortgaged  land, 
which  her  dower  would  bear  to  the  whole  mortgaged  tract.  Smith 
V.  Stephens,  164  Mo.  415,  64  S.  W.  Rep.  260. 

25  Jennison  v.  Hapgood,  14  Pick.  345 ;  Van  Vronker  v.  Eastman,  7 
Mete.  157;  Hawley  v.  Bradford,  9  Paige  200;  Titus  v.  Neilson,  5  Johns. 
Ch.  452;  Church  v.  Church,  3  Sandf.  Ch.  434;  Smith  v.  Jackson,  3  Edw. 
Ch.  28;  Bank  of  Commerce  v.  Owens,  31  Md.  320,  s.  c.  1  Am.  Rep.  60; 
Keith  V.  Trapier,  1  Bailey  Eq.  63;  Pifer  v.  Ward,  8  Blackf.  252;  Harts- 
112 


CH.    VII.]  DOWER.  §    91 

in  the  surplus  of  the  proceeds  of  sale  of  the  land  in  fore- 
closure of  a  mortgage  in  which  she  has  renounced  her  dower. 
That  is,  she  is  not  entitled  to  a  share  in  such  surplus,  where 
the  foreclosure  and  sale  took  place  during  the  life  of  her 
husband.^*'  The  sale  must  in  any  case  be  had  at  the  in- 
stance of  some  third  party,  in  order  that  the  widow  may 
make  claim  to  her  share  in  the  proceeds.  She  has  not  the 
right  to  take  the  initiative  in  procuring  the  sale  of  the  land. 
The  creditors  or  other  claimants  against  the  land  must  do 
that.-^  If,  however,  the  widow's  dower  has  precedence  over 
the  claims  of  those  who  are  demanding  a  sale  of  the  lands, 
she  may  refuse  to  take  a  share  of  the  proceeds  of  fale  in 
the  place  of  her  dower,  and  in  that  case  her  dower  must  be 
assigned  to  her  of  common  right,  before  the  land  is  offered 
for  sale  in  satisfaction  of  the  claims  of  the  other.^^  But  if 
the  widow  permits  the  land  to  be  sold  pending  an  appeal 
from  an  order,  adjudging  her  not  entitled  to  dower  in  the 
land,  the  title  of  the  purchaser  under  order  of  the  court  re- 
mains unaffected  by  a  reversal  of  a  decree  of  the  court  be- 
low, and  the  widow's  dower  right  is  transferred  from  the 
land  to  the  proceeds  of  sale.*' 

§  91.  Seisin  required  in  the  husband  during  coverture. —  In 
order  that  the  dower  can  attach,  the  husband  must  be 
seised  of  an  estate  of  inheritance  during  coverture.     But  for 

home  V.  Hartshorne,  2  N.  J.  Eq.  349 ;  Naxareth  Inst.  V.  Lowe,  1  B.  Mon. 
257;  Wiliett  v.  Beatty,  12  B.  Mon.  172;  Crane  v.  Palmer,  8  Blackf.  120; 
Chaney  v.  Chaney,  38  Ala.  35;  Bonner  v.  Peterson,  43  111.  258;  Thomp- 
son V.  Cochran,  7  Humph.  72;  Williams  r.  Woods,  Humph.  408; 
Schmitt  V.  Willis,  40  N.  J.  Eq.  515;  N.  Y.  Life  Ins.  Co.  v.  Mayor.  14 
Daly  318.  But  see  Newhall  v.  Five  Cents  Savings  Bank,  101  Mass. 
428,  3  Am.  Rep.  387. 

seGenobles  v.  West,  23  S.  C.  154;  see  contra  N.  Y.  Life  Ins.  Co.  v. 
Mayer,  14  Daly  318;  see  KauflTman  v.  Peacock,  115  111.  212. 

27  Hull  V.  Hull,  26  W.  Va.  1. 

28Kilbreth  v.  Root's  Adm'r,  33  W.  Va.  600;  Hart  v.  Burch,  130  111. 
426. 

2B  JefTries  v.  Allen  (S.  C),  10  S.  E.  Rep.  764. 

8  113 


$   i>2  DOWER.  [part   I. 

this  purpose  it  is  not  necessary  that  the  husband  should 
have  the  actual  corporeal  seisin.  Seisin  in  law,  with  a  pres- 
ent right  to  actual,  seisin,  would  be  sufficient.^"  But  dis- 
seisin, resulting  from  adverse  possession  or  from  any  other 
cause  beginning  before,  and  continuing  during,  coverture, 
will  prevent  dower  from  attaching.  The  dower  can  only 
take  effect  when  the  seisin  has  been  recovered  by  the  hus- 
band during  coverture.*^  A  mere  right  of  entry,  as  in  the 
case  of  the  breach  of  the  condition  in  an  estate  upon  con- 
dition, is  not  sufficient.*'^ 

§  92.  Continued  —  Defeasible  or  determinable  seisin. —  Pos- 
session by  the  husband,  of  the  premises,  is  prima  facie  evi- 
dence of  lawful  seisin,  although  it  may  be  defeasible.  As 
long  as  possession  is  retained  and  except  as  against  the  true 
owner,  the  widow  is  Entitled  to  dower  in  the  same  manner  as 
if  the  seisin  had  been  lawful  and  indefeasible.  And  the 
rule  is  the  same  with  qualified  or  determinable  fees.  The 
widow's  dower  attaches,  subject  to  all  the  conditions  which 
are  attached  to  the  husband's  estate,  and  is  destroyed  only 
by  the  determination  of  the  fee  in  the  hands  of  the  hus- 
band or  his  assigns.^*     Nor,  in  the  case  of  an  unlawful  or 

30  2  Bla.  Com.  129,  131;  Co.  Lit.  31  a;  Mann  t\  Edson,  39  Me.  25; 
Atwood  V.  Atwood,  22  Pick.  283;  Dunham  v.  Osborne,  1  Paige  635; 
Thompson  v.  Thompson,  10  Ired.  133;  Mclntyre  v.  Costelle,  47  Hun 
289 ;  Park  Dower,  24 ;  Scribner  Dower,  265.  No  seisin  or  possession  is 
essential  in  the  husband,  to  endow  the  wife  in  his  lands,  in  Missouri,  by 
statute.  Bartlett  v.  Tinsley,  175  Mo.  319,  75  S.  W.  Rep.  143.  See  also, 
Thomas  v.  Thomas,  32  N.  C.  123;  Barnes  v.  Roper,  90  N.  C.  189. 

31  1  Washburn  on  Real  Prop.  216;  Small  V.  Proctor,  15  Mass.  495; 
Thompson  v.  Thompson,  1  Jones  (N.  C.)  431. 

3-!  Thompson  V.  Thompson,  1  Jones  (N.  C.)  431;  1  Washburn  on  Real 
Prop.  216. 

33  1  Washburn  on  Real  Prop.  218;  Co.  Lit.  241,  note  4;  Lewis  V. 
Meserve,  61  Me.  374;  Mann  V.  Edson,  39  Me.  25;  Knight  v.  Mains,  12 
Me.  41;  Moore  v.  Esty,  5  N.  H.  479;  Carpenter  v.  Weeks,  2  Hill  341; 
Griggs  V.  Smith,  12  N.  J.  L.  22;  Thompson  v.  Thompson,  1  Jones 
(N.  C. )  431;  Torrance  v.  Carbey,  27  Miss.  697;  Firestone  i'.  Firestone, 
2  Ohio  St.  415;  Gordon  v.  Dickinson   (111.),  23  N.  E.  Rep.  439;  Beck- 

114 


CH.    VII,]  DOWER.  §    94 

defeasible  seisin,  can  the  wife's  claim  for  dower  be  re- 
sisted by  the  claim  of  the  husband's  grantee  that  he  had 
no  lawful  seisin,  unless  the  same  defense  could  be  raised 
by  the  same  parties  against  the  husband.^* 

§  93.  Duration  of  the  seisin. —  No  length  of  time  is  required 
for  the  seisin  to  be  in  the  husband,  in  order  that  the  wife's 
right  of  dower  may  attach,  provided  it  is  in  him  for  his  own 
use  and  benefit.  The  vesting  of  the  seisin  in  law  in  him 
for  an  instant  of  time  is  sufficient.^^ 

§  94.  Instantaneous  seisin. —  But  if  the  seisin  in  the  bus- 
band  is  instantaneous,  and  it  was  not  intended  that  he 
should  acquire  the  beneficial  interest  therein,  and  he  serves 
pnly  as  a  means  of  passing  the  seisin  to  another,  the  wife 
will  not  be  entitled  to  dower.  Not  the  duration,  but  the 
character  and  purposes  of  the  seisin,  determine  the  wife's 
right  of  dower  therein.  It,  therefore,  does  not  matter 
whether  the  transactions,  which  effect  a  conveyance  of  the 
seisin  through  the  husband,  are  instantaneous,  or  are  sepa- 
rate in  point  of  time  of  execution,  provided  the  subsequent 
conveyance  out  of  .the  husband  is  in  pursuance  of  an  agree- 

with  V.  Beckwith,  Gl  Mich.  316;  Burrall  v.  Hurd,  61  Mioh.  608;  Burrall 
V.  Clark,  61  Mich.  024;  Lake  V.  Nolan   (Mich.),  45  N.  W.  Rep.  376. 

34  Kimball  v.  Kimball,  2  Me.  226;  Bolster  v.  Cushman,  34  Me.  428; 
Hitchcock  V.  Carpenter,  9  Johns.  344;  Bancroft  v.  White,  1  Cains  185; 
Ward  V.  Fuller,  15  Pick.  185;  Osterhout  v.  Shoemaker,  3  Hill  419;  Hale 
V.  Munn,  4  Gray  132;  Browne  v.  Potter,  17  Wend.' 164;  Thompson  v. 
Boyd,  2  N.  J.  L.  543;  Gammon  v.  Freeman,  31  Me.  243;  Wedge  v. 
Moore,  6  Cush.  8;  Pledger  v.  Ellerbe,  6  Rich.  L.  266;  Gale  v.  Price,  5 
Rich.  .525;  Griffith  V.  Griffith,  5  Harr.  5;  Montgomery  v.  Bruere,  5  N. 
J.  L.  205;  Hugley  v.  Gregg,  4  Dana  68;  May  v.  Tillman,  1  Mich.  262; 
Crittenden  r.  Woodruff,  6  Eng.  (Ark.)  82;  Taylor's  Case,  9  Johns.  293; 
Douglas  r.  Dickson,  11  Rich.  L.  417;  Stimpson  v.  Thomaston  Bk.,  28 
Me.  259;   Stark  v.  Hopson,  30  S.  C.  370. 

35  2  Bla.  Com.  182;  1  Washburn  on  Heal  Prop.  218,  219;  Broughton 
r.  Randall,  Cro.  Eliz.  503;  Gage  v.  Ward,  25  Me.  101;  McCauley  v. 
Grimes,  2  Gill  &  J.  318;  Douglass  r.  Dickson,  11  Rich.  L.  417;  McClure 
r.  Harris,  12  B.  Mon.  291 ;  Mclntyre  r.  Costello,  47  Hun  289. 

115 


§  95  DOWER.  [part  I, 

ment  forming  a  part  of  the  original  transaction ;  in  both 
cases  the  wife  will  not  have  dower.^"  The  most  common 
instance  of  instantaneous  seisin,  without  attachment  of 
dower  thereto,  is  a  conveyance  of  lands  to  the  husband  with 
a  mortgage  for  purchase  money  to  the  grantor,  executed  at 
the  same  time,  or  subsequently,  in  pursuance  of  a  con- 
temporaneous agreement.^^ 

§  95.  Marriage  must  be  legal. —  Like  estates  by  the  curtesy, 
the  wife  has  dower  only  when  the  marriage  is  a  legal  one. 
If  the  marriage  is  absolutely  void,  she  has  no  claim  for 
dower;  but  if  it  is  only  voidable,  she  has  dower,  unless  the 
marriage  has  been  declared  void  during  the  lifetime  of  the 

30  2  Bla.  Com.  132;  1  Washburn  on  Real  Prop.  219,  223;  Maybury  V. 
Brien,  15  Pet.  39;  Moore  v.  Rollins,  45  Me.  494;  Hazelton  v.  Lesure,  9 
Allen  24;  King  v.  Stetson,  11  Allen  408;  Hinds  v.  Ballon,  44  N.  H.  620; 
Stow  r.  Tifft,  15  Johns.  462;  Kittle  V.  Van  Dyck,  1  Sandf.  Ch.  76;  Mc- 
Cauley  v.  Grimes,  2  Gill  &  J.  318;  Wooldridge  v.  Wilkins,  3  How. 
(Miss.)  369;  Mills  v.  Van  Voorhis,  23  Barb.  135;  Griggs  v.  Smith,  12 
N.  J.  L.  22;  Wheatley  v.  Calhoun,  12  Leigh  262;  Reed  V.  Morrison,  12 
Serg.  &  R.  18;  Dimond  v.  Billingslea,  2  Har.  &  G.  264;  Klinck  v. 
Keekeley,  2  Hill  Ch.  250;  Boynton  v.  Sawyer,  35  Ala.  497;  Stevens  V. 
Smith,  4  J.  J.  Marsh.  64;  Gully  v.  Ray,  18  B.  Mon.  107;  Stephens 
r.  Leonard,  80  N.  W.  Rep.  1002;  Kager  v.  Brenneman,  62  N.  Y.  S.  339, 
47  App.  Piv.  63 ;  Hendrickson  v.  Grable,  157  Mo.  42,  57  S.  W.  Rep.  784. 

37  Bullard  v.  Bowers,  10  N.  H.  500 ;  Moore  V.  Rollins,  45  Me.  493 ; 
Young  V.  Tarbell,  37  Me.  509;  Strong  V.  Converse,  8  Allen  559;  Hinds 
V.  Ballon,  44  N.  H.  620;  Stow  v.  TiflFt,  15  Johns.  458;  Mills  v.  Van  Voor- 
his, 23  Barb.  125;  Reed  v.  Morrison,  12  Serg.  &  R.  18;  Bogie  V.  Rut- 
ledge,  1  Bay  312;  Jlenagon  v.  Harllee,  10  Rich.  Eq.  285;  Chase's  Case, 

1  Bland.  206;  McClure  v.  Harris,  12  B.  Mon.  261;  Klinck  v.  Keekley,  2 
Hill  Ch.  250;  Sheldon  v.  Hofnagle,  51  Hun  478;  Stewart  v.  Smith,  36 
Minn.  82.  And  in  the  same  manner,  in  those  States  where  the  vendor's 
lien  for  the  purchase-money  is  recognized,  the  widow  of  the  purchaser 
takes  her  dower  subject  to  the  lien.     Hugunin  V.  Cochrane,  51  111.  302, 

2  Am.  Rep.  303;  Warner  v.  Van  Alstyne,  3  Paige  513;  Ellicott  V.  Welch, 
2  Bland.  242;  Miller  v.  Stump,  3  Gill,  304;  McClure  V.  Harris,  12 
B.  Mon.  261;  Crane  r.  Palmer,  8  Blackf.  120;  Thompson  V.  Cochrane, 
7  Humph.  72;  Stephens  v.  Leonard,  80  N.  W.  Rep.  1002;  Hendrickson 
r.  Grable,  157  Mo.  42,  57  S.  W.  Rep.  784. 

116 


Cil.    VII.]  DOWER.  §    96 

husband.^*  In  determining  the  legality  of  the  marriage  in 
questions  of  dower,  as  a  general  rule,  the  question  will  be 
determined  by  the  lex  loci  contractus,  and  not  by  the  lex 
loci  rei  sitcB.^^ 

§  96.  How  dower  may  be  lost  or  "barred  —  By  act  of  the  hus- 
band.—  At  common  law  the  husband  could  not,  by  any  act 
during  coverture,  defeat  the  wife's  right  of  dower,  or  pre- 
vent its  attachment  to  the  property  by  having  inserted  in  the 
deed  to  himself  a  clause,  to  the  effect  that  the  land  should  be 
held  by  him  free  from  the  claim  of  dower,*"  not  even  where 
the  land  is  mortgaged  during  the  pendency  of  an  action  for 
divorce,  and  where  the  mortgage  was  given  to  secure  the 
alimony  which  had  been  decreed  to  the  wife.*^  Nor  can  the 
wife's  dower  be  defeated  by  a  secret  conveyance  of  the  prop- 
erty by  the  husband  before  and  on  the  eve  of  the  marriage.*^ 
But  an  exception  was  made  in  equity  in  respect  to  the  equita- 
ble interest  the  husband,  as  vendee  under  the  theory  of  im- 
plied trusts,  acquires  in  the  land  under  the  contract  of  sale, 
and  before  the  delivery  of  the  deed ;  whereby  a  release  of  his 
right  to  specific  performance  will  bar  her  right  of  dower 
therein.*^    And  in  a  number  of  the  States  it  is  now  provided 

88  2  Bla.  Com.  130;  Co.  Lit.  33  a;  Bishop's  Mar.  &  Div.,  Sec.  177. 
See  Jenkins  t*.  Jenkins,  2  Dana  102;  Donnelly  v.  Donnelly,  8  B.  Mon. 
113;  Higgins  v.  Breen,  9  Mo.  497;  DeFrance  r.  Johnson,  26  Fed.  Rep. 
891.  A  marriage  between  uncle  and  niece,  being  inhibited  by  statute 
the  niece  cannot  take  dower  thereunder.  Mclllvain  v.  Scheibley  (Ky.), 
59  S.  W.  Rep.  498. 

80  Smith  V.  Smith,  .52  N.  J.  L.  207. 

«>  1  Washburn  on  Real  Prop.  244,  255 ;  Swaine  v.  Ferine,  5  Johns.  Ch. 
482;  Norwood  v.  Marrow,  4  Dev.  &  B.  442;  Runke  v.  Hanna,  6  Ind. 
20.  And  not  even  will  the  destruction  of  the  deed  before  recording 
defeat  the  wife's  dower  in  the  estate,  as  against  those  who  have  notice. 
Johnson  v.  Miller,  40  Ind.  376,  17  Am.  Rep.  099. 

41  Rea  V.  Rea,  63  Mich.  257. 

« Jones  V.  Jones,  64  Wis.  301;  Lake  v.  Nolan  (Mich.),  45  N.  W. 
Rep.  376. 

42Herron  v.  Williamson,  Litt.  Sel.  Cas.  250;  1  Washburn  on  Real 
Prop.  224,  225.    And  this  is  also  the  case,  where  the  husband  causes  the 

117 


§  97  DOWER.  [part  I. 

by  statute  that  the  widow  shall  be  dowable  only  in  the  lands 
of  which  her  husband  dies  seised.  Under  these  statutes  a 
bona  fide  conveyance  by  the  husband  during  coverture  will 
defeat  his  wife's  dower,  as  effectually,  as  under  similar  stat- 
utes the  wife  may  by  conveyance  during  coverture  defeat  the 
husband's  right  of  curtesy.** 

§  97.  Continued  —  By  wife's  release  during  coverture. — 
The  wife  has,  however,  always  had  the  power  to  bar  her  right 
of  dower  by  joining  with  her  husband  in  the  conveyance  of 
the  land.  Formerly,  in  England,  it  was  barred  by  means  of 
fines  and  recoveries.*^  But  now,  in  England,  and  in  this 
country  generally,  it  is  regulated  by  statute,  and  by  joining 
in  the  deed  of  the  husband  in  the  manner  prescribed  by  stat- 
ute, she  may  release  her  dower.  The  requisites  of  the  deed 
and  of  her  acknowledgment  of  its  execution  vary  with  the 
terms  of  each  statute.***    But  whatever  might  be  the  statutory 

deed  to  be  made  to  a  third  party  instead  of  himself.  Lobdell  r.  Hayes,  4 
Allen  187;  Steele  v.  Magie,  48  111.  396;  Heed  v.  Ford,  16  B.  M.  114; 
•Gully  V.  Ray,  18  B.'Mon.  107;  Welsh  v.  Buckings,  9  Ohio  St.  331;  Blake- 
ney  v.  Ferguson,  20  Ark.  547.  But  if  the  contract  of  sale  has  been 
performed  by  the  "husband,  and  nothing  more  is  to  be  done  than  to 
execute  and  deliver  the  deed,  and  the  husband  then  dies,  as  has  been 
already  stated,  the  widow  has  dower  in  the  premises,  and  can  enforce 
it  against  the  vendor.     See  ante,  Sec.  87,  note. 

4*  Jenny  v.  Jenny,  24  Vt.  324;  McGee  v.  McGee,  4  Ired.  105;  Brewer 
f.  Connell,  11  Humph.  500;  1  Washburn  on  Real  Prop.  268,  note.  See 
Atkins  V.  Atkins,  18  Neb.  474.  On  setting  aside  a  fraudulent  convey- 
ance made  by  the  husband  the  wife's  dower  interest  attaches  to  such 
land.  Bradshaw  v.  Halpin,  180  Mo.  666,  79  S.  W.  Rep.  685.  The  hus- 
band's contract  of  sale  does  not  effect  the  wife's  dower  right,  as  she 
could  only  be  affected,  by  a  joinder  in  such  contract.  Rankin  V.  Rankin, 
111  HI.  App.  403. 

45  1  Washburn  on  Real  Prop.  245 ;  2  Bla.  Com.  137. 

40  Williams  on  Real  Prop.  230,  452 ;  1  Washburn  on  Real  Prop.  245, 
249.  The  wife  must  be  of  age.  Adams  v.  Palmer,  51  Me.  488;  Cunning- 
ham V.  Knight,  1  Barb.  399;  Priest  v.  Cummings,  16  Wend.  617,  s.  c.  20 
Wend.  338;  Thomas  r.  Gamniel,  6  Leigh  9;  Jones  v.  Todd,  2  J.  J.  Marsh. 
3-.9;  Cason  v.  Hubbard,  38  Miss.  46;  Hoyt  v.  Swar,  53  111.  139;  Hughes 
V.  Watson,  10  Ohio  127.     Generally  she  must  renounce  the  dower  in  the 

118 


CH,  vil]  dower.  §  97 

requirements,  they  must  be  strictly  complied  with,  otherwise 
the  dower  still  exists.*^ 

She  must,  of  course,  have  the  mental  capacity  to  understand 
what  she  is  doing.  If  she  is  insane  her  renunciation  of  dower 
is  a  nullity,  it  matters  not  how  strictly  the  provisions  of  the 
statute  may  have  been  complied  with.**    In  Kentucky  a  stat- 

same  deed  in  which  her  husband  conveys  the  land.  Shaw  v.  Russ,  14 
Me.  432;  Powell  v.  Monson,  2  Mason  353;  Moore  v.  Tisdale,  5  B.  Mon. 
352;  Atkinson  V.  Taylor,  34  Mo.  App.  442;  Grant  v.  Jackson,  5  Del. 
Ch.  404.  Execution  of  the  deed  by  the  husband's  attorney,  with  the 
wife,  is  sufficient.  Fowler  v.  Shearer,  7  Mass.  14 ;  Glenn  v.  Bank  of 
United  States,  8  Ohio  72.  The  deed  of  renunciation  must  also  be 
sealed.  Manning  v.  Laboree,  33  Me.  343;  Keeler  v.  Tatnell,  3  N.  J.  62. 
And  where  the  defect  in  the  acknowledgment  of  the  renunciation  of 
dower  does  not  appear  upon  the  deed,  the  deed  cannot  be  avoided  for 
that  purpose  after  the  land  has  passed  to  a  subsequent  purchaser 
without  notice.  Shivers  v.  Simmons,  64  Miss.  530,  28  Am.  Rep.  37i« 
So,  also,  where  the  renunciation  has  been  obtained  through  the  fraud 
or  undue  influence  of  the  husband,  it  cannot  be  avoided,  unless  the 
purchaser  had  actual  or  constructive  notice  of  it.  White  v.  Graves,  107 
Mass.  325,  9  Am.  Rep.  38;  Singer  Mfg.  Co.  V.  Rook,  84  Pa.  St.  442, 
24  Am.  Rep.  204;  Kerr  f.  Russell,  69  III.  666,  18  Am.  Rep.  634.  And 
a  mistake  in  the  certificate  of  acknowledgment  cannot  be  subsequently 
amended,  unless  the  mistake  relates  to  an  unimportant  fact.  Angler 
V.  Shieffelin,  72  Pa.  St.  106,  13  Am.  Rep.  659;  Merritt  v.  Yates,  71  111. 
636,  22  Am.  Rep.  128. 

*7Elwood  V.  Klock,  13  Barb.  50;  Kirk  v.  Dean,  2  Binn.  341;  Lewis 
V.  Coxe,  5  Harr.  402;  Grove  v.  Todd,  41  Md.  633,  20  Am.  Rep.  76; 
Scanlan  r.  Turner,  1  Bailey  421;  Rogers  v.  Woody,  23  M«o.  548;  Clark 
r.  Redman,  1  Blackf.  379;  Stevenson  v.  Brasher  (Ky.),  13  S.  W.  Rep. 
242.  In  Texas,  it  is  held  that  a  substantial  compliance  with  the  re- 
quirements of  the  statute  is  sufficient.  Belcher  v.  Weaver,  46  Texas 
293,  s.  c.  26  Am.  Rep.  267.  See  also,  Morris  v.  Sargent,  18  Iowa  99; 
Johnson  v.  Parker,  51  Ark.  419.  Joinder  of  wife,  in  deed  of  husband, 
bars  dower,  in  New  Jersey.  Goodheart  v.  Goodheart,  63  N.  J.  Eq.  746, 
53  Atl.  Rep.  135;  also,  in  Arkansas,  Dutton  v.  Stuart,  41  Ark.  101;  and 
in  Ohio,  Smith  v.  Handy,  16  Ohio  191.  Joinder  in  deed  of  husband,  bars 
wife's  dower,  in  Missouri.  Bush  v.  Piersol,  183  Mo.  500,  81  S.  W.  Rep. 
1224.  But  where  joinder  is  conditional,  on  payment  of  annuity,  no 
bar  results,  unless  condition  is  fulfilled.  Brown  v.  Tilley,  25  R.  I.  579, 
67  Atl.  Rep.  380. 

*8Rannell8  r.  Isgrigg,  99  Mo.  19;  Rnnnells  v.  Gerner,  80  Mo.  474. 

119 


§  97  DOWER.  [part  I. 

ute  authorizes  the  sale  of  a  wife's  inchoate  dower,  when  she 
is  insane,  by  order  of  court,  and  by  a  deed,  in  the  execution 
of  which  the  guardian  or  committee  of  the  insane  woman 
joins  with  the  husband,  provision  being  made  to  set  apart 
for  her,  out  of  the  purchase  money,  the  value  of  such  dower, 
to  be  claimed  by  her  whenever  the  dower  becomes  consum- 
mate.*" 

Since  the  dower  is  extinguished  by  a  release  in  conjunction 
with  the  husband's  deed,  and  operates  as  an  estoppel  rather 
than  as  a  grant,  the  dower  is  only  extinguished  as  against 
those  who  claim  the  land  under  the  deed.  If,  therefore,  the 
deed  is  void  for  some  cause,  whether  it  be  fraud,  accident,  or 
mistake,  as  where  the  husband's  act  is  void  as  against  his 
creditors,  her  dower  right  would  be  revived  and  could  be  en- 
forced against  all  other  parties.^"  And  if  the  wife  has  her- 
self received  value  for  the  renunciation  of  dower,  she  will 
not  have  to  return  such  consideration  before  recovering  her 
dower,  wheii  the  deed  of  conveyance  or  renunciation  is  invalid 
for  any  cause.^^  But  the  wife  can  only  release  her  dower  to 
her  husband's  grantee.  She  cannot  by  any  independent  act 
release  her  right  during  coverture  to  a  stranger  laying  claim 

"Fichtner  v.  Fichtner's  Assignee  (Ky.),  11  S.  W.  Rep.  85. 

BO  Harsiman  V.  Gray,  40  Me.  537 ;  Richardson  v.  Wynian,  62  Me. 
280,  16  Am.  Rep.  459;  Robinson  v.  Bates,  3  Mete.  40;  Manhattan  Co.  v. 
Evertson,  6  Paige  457;  Malloney  v.  Horan,  49  N.  Y.  Ill,  10  Am.  Rep. 
335;  Ridgway  v.  Masting,  23  Ohio  St.  294,  13  Am.  Rep.  251;  Woodworth 
V.  Paige,  5  Ohio  St.  70;  Pinson  v.  Williams,  23  Miss.  64;  Nickell  V. 
Tomlinson,  27  W.  Va.  597;  Smith  V.  Howell  (Ark.),  13  S.  W.  Rep.  929; 
Bohannon  f.  Combs,  97  Mo.  446.  But  in  Illinois  it  was  held,  that  if  the 
deed  is  avoided  by  not  being  properly  recorded,  she  could  not  reclaim 
her  dower.  Morton  v.  Noble,  57  111.  176,  11  Am.  Rep.  7.  It  is  doubt- 
ful if  this  may  be  accepted  as  a  universally  recognized  exception.  From 
the  rule  laid  down  in  the  text,  which  is  fully  supported  by  the  cases 
cited,  and  by  reason,  the  judgment  in  the  Illinois  case  should  have 
been  in  favor  of  the  widow.  See  contra  Stowe  r.  Steele,  114  111.  382. 
No  estoppel  can  result  against  the  wife  during  the  husband's  life,  as 
her  right  to  dower  is  then  an  inchoate  right  only.  Beeman  v.  Kitz- 
man    (Iowa   1904),  99  N.  W.  Rep.   171. 

Bi  Bottonily  v.  Spencer,  36  Fed.  Rep.  732. 
120 


CII.    VII.]  DOWER.  §    98 

to  the  land,  or  to  her  husband,'^-  nor  to  a  purchaser  at  a  sale 
in  partition,  until  the  transaction  has  become  complete  by  a 
judicial  confirmation  of  the  sale.^''  She  may,  however,  relin- 
quish her  dower  to  her  husband's  grantee  by  a  subsequent 
deed  in  which  her  husband  does  not  join,  if  he  has  previously 
conveyed  his  interest  by  a  valid  deed.°* 

§  98.  Contimied  —  By  elopement  and  divorce. —  Under  the 
early  statute  of  Westminster,  13  Edw.  I,  ch.  34,  which  is 
generally  received  in  this  country  as  part  of  the  common  law, 
if  a  wife  elopes  with  another  man  and  commits  adultery  with 
him,  she  is  deprived  of  her  dower.'*^  The  forfeiture  is  more 
in  the  nature  of  a  suspension  than  an  absolute  extinguish- 
ment, unless  such  elopement  and  adultery  is  followed  by  a 
divorce.^®    The  divorce  not  only  bars  her  dower  right  in  the 

52  Rowe  V.  Hamilton,  3  Me.  63;  Croade  v.  Ingraham,  13  Pick.  33; 
Carson  v.  Murray,  3  Paige  483;  Martin  v.  Martin,  22  Ala.  104;  Mason 
V.  Mason,  140  Mass.  63;  Wright  V.  Wright  (Mich.),  44  N.  W.  Rep.  944. 

53  Hart  V.  Bureh,  130  111.  426. 

6<  Irving  V.  Campbell,  56  N.  Y.  Super.  Ct.  224. 

55  4  Kent's  Com.  53;  1  Washburn  on  Real  Prop.  242,  243,  309,  note. 
See  Elder  v.  Riel,  62  Pa.  St.  308,  1  Am.  Rep.  414;  Stegall  v.  Stegall,  2 
Brocken  256;  Walters  v.  Jordan,  13  Ired.  361;  Bell  v.  Nealy,  1  Bailey 
312;  Lecompte  v.  Wash,  9  Mo.  551.  In  Massachusetts,  it  has  been  held 
that  the  statute  is  not  recognized.     Lakin  v.  Lakin,  2  Allen  45. 

58  Divorce  is  not  necessary  to  bar  her  dower  at  common  law.  1 
Washburn  on  Real  Prop.  242.  But  by  statute  it  is  now  provided  in 
some  of  the  States  that  elopement  and  adultery  without  divorce  is  no 
bar.  Bryan  r.  Batchelder,  6  R.  I.  543;  Reynolds  V.  Reynolds,  24  Wend. 
193;  Pitts  i:  Pitts,  52  N.  Y.  593;  Rawlins  c.  Buttel,  1  Houst.  224.  See  1 
Washbiirn  on  Real  Prop.  309,  note.  Dower  was  barred  by  divorce,  a  vin- 
culo, at  common  law.  Barrett  f.  Failing,  HI  U.  S.  523,  28  L.  Ed.  .505; 
Wood  V.  Wood,  59  Ark.  441,  27  S.  W.  Rep.  641,  28  L.  R.  A.  157;  Pullen 
r.  Pullen,  52  N.  J.  Eq.  9,  28  Atl.  Rep.  719;  Price  V.  Price,  124  N. 
Y.  589,  27  N.  E.  Rep.  .383.  12  L.  R.  A.  359;  Allen  v.  Austin,  21  R.  I. 
254,  43  Atl.  Rep.  69;  Norton  v.  Tufts,  19  Utah  471,  57  Pac.  Rep.  409. 
Elopement,  divorce  and  adultery,  are  all  held  to  bar  dower,  in  the 
following  late  cases.  Phillipps  r.  Wiseman,  131  N.  C.  402,  42  S.  E.  Rep. 
861  ;  Beatty  r.  Richardson,  56  S.  C.  173,  .34  S.  E.  Rep.  73,  46  L.  R.  A. 
517;  Nichols  V.  Park,  79  N.  Y.  S.  .547,  78  App.  Div.  95;  Wilson  v. 
Craig,  175  Mo.  362,  75  S.  W.  Rep.  419;  McQuinn  r.  McQuinn  (Ky.),  61 

121 


§  98  DOWER.  [part  I. 

lands  of  which  her  husband  is  seised  at  the  time  of  the  divorce, 
but  also  in  those  lands  which  he  had  previously  conveyed 
away  without  her  renunciation  of  dower.^^  If  the  parties 
are  not  subsequently  divorced,  her  dower  right  is  revived,  if 
she  returns  to  her  husband  and  is  received  by  him  and  ac- 
corded a  full  forgiveness.  She  has  dower  in  the  case  of  a 
reconciliation  and  condonement,  not  only  in  the  lands  which 
he  possessed  before  her  elopement,  but  also  in  those  which  ho 
has  acquired  and  sold  subsequently.^*  The  commission  of 
adultery,  while  living  apart  from  her  husband,  whatever  may 
have  been  the  cause  of  the  separation,  will  also  be  a  bar.'® 
But  a  separation  of  some  kind  must  have  taken  place,  in 
order  that  her  adultery  might  work  a  forfeiture  of  the  dower ; 
adultery  in  her  own  and  husband's  house  will  not  be  a  bar.®" 
So,  on  the  other  hand,  mere  desertion  on  the  part  of  the  wife, 
unless  complicated  by  adultery,  is  no  bar  to  dower."^  It  is 
necessary  to  support  the  claim  to  dower,  that  the  widow 
should  be  the  wife  of  the  husband  at  his  decease.  If,  there- 
fore, they  have  been  absolutely  divorced,  from  whatever 
cause,  for  his  as  well  as  her  fault,  her  dower  right  would  be 
extinguished,  unless  the  statutes  of  the  different  States,  pro- 
viding for  divorces,  contain  a  saving  clause,  giving  the  inno- 
cently divorced  wife  the  right  to  enjoy  her  dower,  as  if  she 

S.  W.  Rep.  358.  Where  a  decree  of  divorce  is  silent  as  to  a  widow's 
right  to  dower,  it  does  not  bar  her  interest,  in  Illinois,  Kirkpatrick  v. 
Kirkpatrick,  197  111.  144,  64  N.  E.  Rep.  267. 

B7  McKean  v.  Brown,  83  Ky.  208. 

68  Co.  Lit.  23  a,  note  8;  1  Washburn  on  Real  Prop.  242,  243.  But  he 
is  not  bound  to  take  her  back  again.    Govier  v.  Hancock,  6  T.  R.  603. 

5»  1  Washburn  on  Real  Prop.  243 ;  Hethrington  v.  Graham,  6  Bing. 
135;  Coggswell  V.  Tibbetts,  3  N.  H.  41;  Goss  v.  Froman  (Ky.),  12  S.  W. 
Rep.  387.  But  she  does  not  lose  her  dower,  if  she  commits  adultery, 
under  the  mistaken  belief  that  her  prior  husband  was  dead.  1  Wash- 
burn on  Real  Prop.  243;  1  Cruise  Dig.  175,  176. 

«o  Coggswell  V.  Tibbetts,  3  N.  H.  41 ;  Elder  v.  Reed,  62  Pa.  St.  308,  1 
Am.  Rep.  414. 

«iMye's   Appeal,  126  Pa.   St.  341;   Henderson  v.  Chaires    (Fla.),  6 
So.  Rep.  164. 
122 


CH.    VII.]  DOWER.  §    99 

was  still  a  wife.®-  If  the  court  grant  to  the  wife  a  gross  sum 
by  way  of  alimony,  she  will  take  this  sum  in  lieu  of  dower, 
and  her  dower  right  will  thus  be  barred.®^  But  in  order  that 
in  any  case  divorce  may  aifect  the  wife's  dower  right,  except 
in  the  case  of  elopement  and  adultery,  the  divorce  must  be  an 
absolute  one,  dissolving  the  marriage  tie  altogether.  A  di- 
vorce a  mensa  et  thoro,  ordinarily  has  no  effect  on  the  wife's 
dower.®*  The  effect  of  divorce  on  the  wife's  dower  is  held  to 
be  determined  by  the  law  of  the  place  in  which  the  divorce  was 
granted.®* 

§  99.  Continued  —  By  loss  of  husband's  seisin. —  As  a  gen- 
eral proposition,  dower  can  be  enforced  only  so  far  as  the 
lawful  seisin  of  the  husband  extends  at  the  time  when  the 
dower  right  attaches.  She,  therefore,  acquires  dower  in  his 
lands,  subject  to  all  the  defects,  conditions,  limitations,  and 
incumbrances,  which  characterize  and  cover  the  husband's 
title.  If,  therefore,  the  husband's  seisin  is  defeated,  whether 
by  the  assertion  of  a  paramount  title,  the  breach  of  a  condi- 
tion, or  the  expiration  of  the  limitation,  the  wife's  dower 
right  is  also  extinguished.®*     But  if  the  husband's  estate  is 

•24  Kent's  Com.  54;  2  Bla.  Com.  130;  Bishop's  Mar.  and  Div.,  Sees. 
661,  662,  663;  1  Washburn  on  Real  Prop.  309,  note.  The  statutes  relat- 
ing to  the  granting  of  divorce  usually  provide  that  the  innocent  party 
shall  not  lose  his  or  her  marital  rights.  Stahl  v.  Stahl,  114  111.  375; 
Percival  v.  Percival,  56  Mich,  297;  Gordon  v.  Dickson  (111.),  23  N.  E. 
Rep.  439;  Van  Cleaf  V.  Burns,  118  N.  Y.  549;  Rhea  V.  Rhea,  63  Mich. 
257.  A  wife  who  takes  through  jointure,  instead  of  dower,  takes  as  a 
purchaser  and  is  not  affected  by  a  divorce.  Saunders  v.  Saunders,  144 
Mo.  482,  46  S.  W.  Rep.  428. 

«3Tatro  V.  Tatro,  18  Neb.  395,  53  Am.  Rep.  320;  Owen  v.  Yale,  73 
Mich.  256. 

8«  Taylor  v.  Taylor,  93  N.  C.  418,  53  Am.  Rep.  460. 

«5  Van  Cleaf  v.  Bums,  118  N.  Y.  549. 

««  1  Washburn  on  Real  Prop.  256 ;  Seymour's  Case,  10  Rep.  96 ;  Ray  v. 
Pange,  5  B.  &  Aid,  561;  Brown  v.  Williams,  31  Me.  403;  Beardslee  v. 
Beardslee,  5  Barb.  324 ;  Sanford  v.  McLean,  3  Paige  1 17 ;  Northcutt 
r.  Whipp,  12  B.  Mon.  72;  Wheeler  v.  Smith,  55  Mich.  355;  Moriarta  v. 
McRea,  45  Hun  564. 

123 


§  99  DOWER.  [part  I. 

determined  and  made  to  shift  over  to  another  upon  the  hap- 
pening of  a  contingency,  so  that  the  limitation  over  is  a  con- 
ditional limitation,  it  has  been  generally  held,  although  con- 
troverted by  good  authorities,  that  the  wife's  dower  neverthe- 
less survives  and  suspends  the  execution  of  the  limitation  over 
until  her  death.®^  A  like  exception  is  recognized  universally 
in  favor  of  the  continuance  of  the  wife's  dower,  where  the 

«7  Buckworth  v.  Thirkell,  3  B.  &  P.  652,  note;  Moody  v.  King,  2  Bing. 
447;  Sammes  r.  Payne,  1  Leon  167;  Hatfield  V.  Sneden,  54  N.  Y.  285; 
Milledge  v.  Lamar,  4  DeSau  637;  Northcut  V.  Whipp,  12  B.  Mon.  72; 
Nickel]  V.  Tomlinson,  27  W.  Va.  697 ;  Pollard  v.  Slaughter,  92  N.  C.  72, 
53  Am.  Rep.  402;  Fry  v.  Scott  (Ky.),  11  S.  W.  Rep.  426.  Chancellor 
Kent  says :  "  The  ablest  writers  upon  property  law  are  against  the 
right  of  the  dowress,  when  the  fee  of  the  husband  is  determined  by 
executory  devise  or  shifting  use."  C.  J.  Gibson  in  Evans  v.  Evans, 
supra,  says:  "  Not  one  of  the  text-writers  has  hinted  at  the  true  solu- 
tion of  the  difficulty,  except  Mr.  Preston.  All  agree  that  where  the 
husband's  fee  is  determined  by  recovery,  condition,  or  collateral  limita- 
tion, the  wife's  dower  determines  with  it.  I  have  a  deferential  respect 
for  the  opinion  of  Mr.  Butler,  who  was  perhaps  the  best  conveyancer  of 
his  day,  but  I  cannot  comprehend  the  reasons  of  his  distinction  in  the 
note  to  Co.  Lit.  241  a,  between  a  fee  limited  to  continue  to  a  particular 
period  at  its  creation,  which  curtesy  or  dower  may  survive,  and  the 
devise  of  a  fee  simple  or  a  fee  tail  absolutely  or  conditional,  which  by 
subsequent  words  is  made  determinable  upon  some  particular  event,  at 
the  happening  of  which  dower  or  curtesy  will  cease."  "  How  to  recon- 
cile to  any  system  of  reason,  technical  or  natural,  the  existence  of  a 
derivative  estate,  after  the  extinction  of  that  from  which  it  was  de- 
rived, was  for  him  (Butler)  to  show,  and  he  has  not  done  it.  The 
case  of  a  tenant  in  tail,"  says  Mr.  Preston  ( 3  Prest.  Abst.  373 ) ,  "is  an 
exception  arising  from  an  equitable  construction  of  the  statute  De  Donis, 
and  the  cases  of  dower  of  estates  determinable  by  executory  devise  and 
springing  (shifting)  use  owe  their  existence  to  the  circumstance  that 
these  limitations  are  not  governed  by  common  law  principles."  "  It 
was  the  benign  temper  of  the  judges  who  moulded  the  limitations  of  the 
estates  introduced  by  them,  whether  original  or  derivative,  so  as  to 
relax  the  severer  principles  of  the  common  law,  and  among  other  things, 
to  preserve  curtesy  and  dower  from  being  barred  by  a  determination  of 
the  original  estate  which  could  not  be  prevented."  The  student  is  not 
prepared  to  understand  the  refined  distinctions  here  hinted  at,  until 
he  has  mastered  the  subsequent  chapters  on  Estates  upon  Condition, 
Uses  and  Trusts,  Remainders  and  Executory  Devises.  A  recurrence  to 
this  section  after  a  study  of  the  subjects  mentioned  is  advisable. 

124 


CH.    VII.]  DOWEK.  §    100 

husband's  estate  as  tenant  in  tail  has  been  determined  by  Ihe 
failure  of  issue  capable  of  taking."^ 

§  100.  Continued  —  By  estoppel  in  pais.— After  the  death 
of  the  husband,  the  widow  may,  by  acts  which  are  sufficient 
to  work  an  estoppel  in  ordinary  cases,®®  bar  her  right  to  dower 
without  any  formal  release.  Her  acts  would  have  that  effect, 
if  they  were  calculated  to  mislead  and  work  a  fraud  upon 
purchasers.^"  But  in  order  that  her  acts  during  coverture 
may  operate  as  an  estoppel  and  bar  her  dower  they  must  be 
equivalent  in  legal  effect  to  one  of  the  different  formal  modes 
provided  by  law  for  the  extinguishment  of  the  dower.  ^^ 

88  4  Kent's  Com.  49;    1   Washburn  on  Real  Prop.   261;   Northcut  v. 
Whipp,   12  B.  Mon.  73,  Paine's  Case,  8  Rep.  36. 
«»See  post,  Sees.  508,  510. 

70  It  must  be  an  unequivocal  act  or  declaration.  Mere  silence  is  not 
sufficient,  and  presence  at  the  sale  without  giving  notice  of  her  right, 
will  not  estop  her  from  claiming  dower.  Heth  v.  Cocke,  1  Rand.  344; 
Smith  V.  Paysenger,  2  Const.  ( S.  C. )  59 ;  Owen  V.  Slatter,  26  Ala.  547 ; 
Tennent  v.  Stoney,  1  Rich.  Eq.  222;  Davis  V.  Cornelius  (Ky.),  10  S.  W. 
Rep.  471.  And  likewise  her  dower  is  not  estopped  by  a  conveyance  by 
her  in  the  capacity  of  her  husband's  administratrix,  where  no  mention 
was  made  of  her  dower,  unless  she  covenants  to  warrant  the  title,  or 
purports  to  convey  generally  her  interest  as  well  as  his.  Shurtz  V. 
Thomas,  8  Pa.  St.  359;  Usher  V.  Richardson,  29  Me.  415;  Magee  V. 
Mellon,  23  Miss.  585;  Shoot  v.  Galbreath,  128  111.  214.  And  dower  will 
not  be  barred  by  joining  the  widow  in  a  suit  for  specific  performance 
against  the  heirs  on  the  contract  of  the  husband  for  the  sale  of  the 
lands;  she  need  not  answer  and  may  afterwards  claim  her  dower. 
Grady  v.  McCorkle,  57  Mo.  172,  17  Am.  Rep.  672.  But  parol  denials 
of  her  claim,  or  a  participation  in  the  proceeds  of  a  judicial  sale  in  a 
suit,  to  which  she  is  made  a  party,  will  estop  her.  Dongrey  v.  Topping, 
4  Paige  94;  Reed  V.  Morrison,  12  Serg.  &,  R.  18;  Gardiner  V.  Miles,  5 
Gill  94;  Allen  v.  Allen,  112  111.  323. 

71  Martin  v.  Martin,  22  Ala.  104;  Davis  V.  Townsend  (S.  C),  10  S. 
E.  Rep.  837;  Rockwell  v.  Rockwell  (Mich.),  46  N.  W.  Rep.  8.  And 
where  the  wife  of  the  mortgagor  releases  dower  in  her  husband's  con- 
veyance of  the  equity  of  redemption,  it  bars  her  dower  in  the  entire 
estate,  although  she  did  not  join  in  the  execution  of  the  mortgage. 
Hoogland  r.  Watt,  2  Sandf.  Ch.  148.  See  Usher  v.  Richardson,  29  Me. 
415.  No  estoppel  can  result  during  the  life  of  the  husband.  Becman 
f.  Kitzman   (Iowa  1904),  99  N.  W.  Rep.  171. 

125 


§    102  DOWER.  [part   I. 

§  101.  Continued  —  By  statute  of  limitations. —  Under  no 
circtrmstances  will  the  wife's  inchoate  right  be  affected  by 
the  adverse  possession  of  the  land  during  the  life-time  of  the 
husband.^-  And  after  it  has  become,  by  his  death,  a  con- 
summate right  in  the  nature  of  a  chose  in  action,  although 
long  adverse  possession  after  the  husband's  death  is  proper 
evidence  for  the  jury  to  establish  a  release  of  the  dower 
right,  it  is  no  absolute  bar  to  the  action,  unless  the  statute 
is  made  expressly  to  include  actions  of  dower.'' 

§  102.  Continued  —  By  exercise  of  eminent  domain. —  It  is 
well  settled,  that  the  dower  right  of  the  wife  or  widow  is 
defeated  by  the  exercise  of  eminent  domain  over  the  land, 
out  of  which  the  dower  issues.  But  it  is  a  matter  of  con- 
siderable doubt,  whether  the  right  before  assignment,  dur- 
ing the  life  of  the  husband,  or  after  his  death,  partakes  so 
much  of  the  nature  of  an  interest  or  estate  in  the  land, 
as  to  entitle  her  to  compensation  separate  from  her  hus- 
band or  his  heirs  and  assignees.  It  has  been  held  that  she 
cannot  claim  such  compensation,  but  the  question  cannot 
be  considered  as  definitely  settled.'* 

72  Durham  v.  Angier,  20  Me.  242;  Moore  v.  Frost,  3  N.  H.  127; 
Williams  V.  Williams   (Ky.),   12  S.  W.  Rep.  760. 

73  4  Kent's  Com.  70;  Parker  v.  Obear,  7  Mete.  24;  Barnard  v.  Ed- 
wards, 4  N.  H.  107;  Spencer  V.  Weston,  1  Dev.  &  B.  213;  Guthrie  v. 
Owen,  10  Yerg.  339;  1  Washburn  on  Real  Prop.  267.  But  in  a  number 
of  the  States  there  are  express  statutory  provisions  in  respect  to  barring 
dower  by  lapse  of  time.  See  Robie  v.  Flanders,  33  N.  H.  524;  Dur- 
ham f.  Angier,  20  Me.  242;  Spencer  v.  Weston,  1  Dev.  &  B.  213; 
Wilson  r.  :Mclyenagham,  1  McMull.  Eq.  35;  Chase  v.  Alley,  82  Me. 
234,  19  Atl.  Rep.  397;  Carmichael  V.  Carmichael,  5  Humph.  96;  Ridg- 
way  17.  McAlpine,  31  Ala.  464;  Tattle  v.  Wilson,  10  Ohio  24;  Butcher  v. 
Butcher  (Mich.  1904),  100  N.  W.  Rep.  604;  Harrison  V.  McReynolds, 
183  Mo.  533,  82  S.  W.  Rep.  120.     See  note  to  Sec.  85. 

74  1  Washburn  on  Real  Prop.  270.  See  Moore  r.  New  York,  4  Sandf. 
450,  «.  0.  8  N.  Y.  110;  Gwynne  v.  Cincinnati,  3  Ohio  24.  See,  contra, 
recognizing  the  widow's  claim  to  compensation,  Ebey  v.  Ebey,  1  Wash. 
185.  Dower  is  not  lost  by  condemnation  for  a  railroad,  in  Massachu- 
setts.   Nye  r.  Taunton  Branch  R.  R.,  113  Mass.  277.     But  see,  Venable 

126 


CH.    Vn.]  DOWER.  §    104 

§  103.  Widow's  quarantine. —  Upon  the  death  of  the  hus- 
band, the  widow's  right  of  dower  becomes  consummate,  and 
she  is  entitled  to  an  immediate  assignment  of  her  dower. 
Until  assignment  has  been  made,  and  for  a  period  of  forty 
days,  she  was  entitled  at  common  law  to  a  residence  in  the 
principal  mansion  house  of  her  husband,  provided  she  did 
not  marry  within  that  time.  This  right  was  called  her 
quarantine.^"  It  is  generally  recognized  in  the  United 
States;  but  since  it  is  principally  regulated  by  statute,  there 
is  a  considerable  variation  in  respect  to  its  duration,  and 
its  relation  to  the  right  of  assignment  of  dower.^^  The  gt-n- 
eral  rule  is  that  dower  should  be  set  out  to  her  within  the 
time  of  her  quarantine,  and  if  it  is  not,  she  may  at  the  end 
of  that  time  pursue  the  ditferent  remedies  given  for  the 
recovery  of  the  dower  and  its  assignment.^^ 

§  104.  Assigfnment  —  Two  modes. —  There  are  two  modes  of 
setting  out  dower  respectively  called,  **  of  common  right," 
and  "against  common  right."  If  it  has  been  assigned  of 
common  right,  and  the  widow  has  lost  a  part  or  the  whole 
of  the  land  set  out  to  her  by  the  assertion  of  a  paramount 
title,  she  is  entitled  to  an  assignment  de  novo  out  of  the 
remainder  of  the  husband's  estate,  so  that  the  loss  by  eviction 
will  not  fall  entirely  upon  her.  And  on  the  other  hand,  if 
there  is  an  eviction  of  the  heir,  after  assignment  of  dower, 
he  will  in  like  manner  be  entitled  to  a  new  assignment.  But 
if  the  assignment  was  "against  common  right,"  it  is  final, 
and  if  the  share  of  either  widow  or  tenant  of  the  freehold 
is  subsequently  "lost  by  eviction  under  paramount  title,  they 
have  no  remedy  against  each  other,  as  in  the  case  of  as- 
signment "of  common  right. "^' 

V.  Wabash  R.  R.,  112  Mo.  103;  Duncan  v.  City,  85  Ind.  104;  Olcott  v. 
Supervisors,  16  Wall.  694. 

T6Co.  Lit.  34  b;  2  Bla.  Com.  139. 

'0  See  Neustacher  v.  Schmidt,  25  111.  App.  626. 

127 


§    105  DOWER.  [part   I. 

§  105.  Continued  —  Of  common  right. —  Dower  of  common 
rigrht  must,  as  a  general  rule,  be  set  out  by  metes  and 
bounds.^"  It  is  not  necessary,  where  the  husband  died  seised, 
that  the  widow  should  receive  one-third  by  metes  and  bounds 
cf  each  tract  of  land ;  nor  can  she  of  right  control  the  dis- 
cretion of  the  sheriff  or  tenant  in  the  assignment  of  the 
dower  by  the  expression  of  her  own  wishes.®*  The  tenant 
or  sheriff,  as  the  case  may  be,  is  vested  with  considerable 
discretion  in  regard  to  this  matter,  and  if,  under  all  the 
circumstances  surrounding  the  case,  it  is  advisable  or  reason- 
able, the  dower  might  be  assigned  to  her  out  of  one  tract 
altogether,  or  where  the  property  consists  of  arable,  pasture 
and  other  kinds  of  land,  she  may  be  given  her  dower  in  one 
kind  to  the  exclusion  of  the  others.*^  But  if  the  lands  are 
held  separately  by  several  grantees  of  the  husband,  dower 
must  be  set  out  in  each  parcel.**^  So,  also,  must  assignment 
be  made  out  of  each  separate  tract,  where  some  of  them  are 
incumbered  by  mortgages  in  which  the  wife  has  joined,  and 
where  other  tracts  are  free  from  incumbrances.*^  While  she 
can  claim  dower  out  of  existing  incorporeal  hereditaments, 
including  easements,  the  sheriff  cannot  create  in  her  favor, 
and  as  a  part  of  her  dower,  a  new  easement  imposed  on 
lands,  not  assigned  to  her.®*     Where  the  property  is  such 

77  4  Kent's  Com.  63 ;  1  Washburn  on  Real  Prop.  277,  note  277.  She  can 
claim  her  right  of  quarantine  even  against  her  husband's  grantee. 
Sheltonr.  Carroll,  16  Ala.  148;  Phasis  v.  Leachman,  20  Ala.  662. 

78  French  v.  Pratt,  27  Me.  381;  Scott  V.  Hancock,  13  Mass.  162;  Jones 
V.  Brewer,  1  Pick.  314;  Singleton  V.  Singleton,  5  Dana  87;  Holloman  v. 
Holloman,  5  Smed.  &  M.  559, 

70  Co.  Lit.  34  b,  note  213;  1  Washburn  on  Real  Prop.  273;  Pierce  V. 
Williams,  3  N.  J.  L.  521. 

80 Moore  v.  Dick  (111.),  24  N.  E.  Rep.  768. 

81  1  Washburn  on  Real  Prop.  286;  White  V.  Story,  2  Hill  543;  Jones 
V.  Jones,  Busbee  (N.  C.)   177.     See  Hardin  v.  Lawrence,  40  N.  J.  Eq.l54. 

82  Co.  Lit.  35  a;  Doe  v.  Gwinnell,  1  Q.  B.  423;  Coulter  V.  Holland, 
2  Harr.  330;  Cook  v.  Fisk,  Walk.  423;  Morgan  v.  Blatchley,  33  W.  Va. 
155. 

88  Askew  V.  Askew,  103  N.  C.  285. 
84  Price  V.  Price,  54  Hun  349. 
128 


CH.    VII.]  DOWER.  §    105 

that  the  dower  cannot,  without  loss,  be  set  out  by  metes  and 
bounds,  it  is  then  permitted  that  a  certain  share  in  the  in- 
come or  occupation  and  enjoyment  of  the  land  should  be 
set  apart  for  her,  while  the  property  is  held  by  her  in  com- 
mon with  the  tenant  of  the  freehold.*^  In  making  the  as- 
signment, the  extent  of  her  one-third  interest  in  the  land 
is  determined  by  the  market  and  productive  value,  instead 
of  the  mere  quantity  of  land.  She  is  entitled  to  that  part 
of  the  estate  which  would  yield  her  one-third  of  the  rents 
and  profits  received  from  the  entire  estate.®®  And  if  the 
land  is  incumbered,  the  dower  being  subject  to  the  incum- 
brance, the  value  of  the  land  will  be  estimated  by  a  deduc- 
tion of  the  amount  of  the  incumbrance  from  the  total  value 
of  the  land.®^  If  the  land  is  held  by  the  heir  or  devisee, 
the  value  of  the  land  or  income  is  estimated  at  the  time 
when  the  dower  is  assigned,  thus  giving  her  the  benefit 
of  any  increase,  including  any  improvements  by  the  heir, 
as  well  as  subjecting  her  to  the  loss  by  any  natural  de- 
preciation in  the  value  of  the  land  after  the  death  of  her 
husband.®*     If  the    depreciation   is   the   result   of  a   willful 

85  1  Washburn  on  Real  Prop.  286,  287;  Stoughton  r.  Leigh,  1  Taunt. 
402;  Stevens  v.  Stevens,  3  Dana  371.  And  where  the  property  consists 
of  mines,  dower  may  be  assigned  by  a  parol  agreement  to  divide  the 
profits,  and  to  give  her  one-third  of  them.  Billings  V.  Taylor,  10  Pick. 
460;  Coates  v.  Cheever,  1  Cow.  478;  Lenfers  v.  Henke,  37  111.  405,  24 
Am.  Rep.  263.  The  widow  has  dower  in  oil  wells,  opened  after  hus- 
band's death,  in  Ohio.  Willford  v.  HeimhoflFer,  25  Ohio  Cir.  Ct.  748. 
But  before  assignment,  dowress  cannot  make  a  valid  mining  lease. 
Huok  r.  Garfield  Coal  Co.  (Iowa),  83  N.  W.  Rep.  963.  Dower  does  not 
entitle  the  widow  to  sell  timber,  in  Alabama.  Garnett  Smelting  Co.  v. 
Watts  (1904),  37  So.  Rep.  201. 

8«  Leonard  v.  Leonard,  6  Mass.  533 ;  Coates  v.  Cheever,  1  Cow.  476 ; 
McDaniel  V.  McDaniel,  3  Tred.  61 ;  Smith  v.  Smith,  5  Dana  179. 

8T  Piatt's  Appeal,  56  Conn.  572. 

•8  Powell  V.  Monson,  3  Mason  368;  Parker  v.  Parker,  17  Pick.  236; 
Davis  V.  Walker,  42  N.  H.  482;  Thompson  v.  Morrow,  5  Serg.  &  R.  290; 
Williams  on  Real  Prop,  233;  l^Washburn  on  Real  Prop.  288;  Co.  Lit. 
32  a.  In  New  York,  the  value  is  ascertained  at  the  time  of  descent  to 
the  heir.     Sidway  v.  Sidway,  53  Hun  222. 

»  129 


§    105  DOWER.  [part   I. 

waste  by  the  heir,  she  has  her  right  of  action  for  damages 
against  him ;  but  it  does  not  affect  or  alter  the  manner  of 
assignment.*"*  If  the  land  is  held  by  alienees  of  the  hus- 
band, the  English  rule,  which  is  followed  by  the  courts  of 
some  of  the  States,  is,  that  the  value  must  be  estimated  ac- 
cording to  the  condition  of  the  estate  at  the  death  of  the 
husband.""  The  general  rule  in  this  country  is  that  the 
dower  must  be  adjudged  according  to  the  value  of  the  land 
at  the  time  of  assignment,  less  any  increase  of  value  arising 
from  improvements  made  by  the  alliance,  thus  giving  the 
widow  the  benefit  of  the  increase  produced  by  the  general 
and  natural  rise  in  the  value  of  the  property.®^     A  further 

89  1  Washburn  on  Real  Prop.  288.  See  Powell  v.  Monson,  3  Mason 
368;  Campbell  r.  Murphy,  2  Jones  Eq.  362. 

80  Doe  r.  Gwinnell,  1  Q.  B.  682;  Campbell  r.  Murphy,  2  Jones  Eq. 
357.  In  New  York  and  Virginia,  the  value  of  the  land  at  the  time  of 
alienation  is  the  true  basis  of  estimating  the  value  of  the  dower  right. 
Walker  v.  Schuyler,  10  Wend.  480;  Tod  v.  Baylor,  4  Leigh  498;  Van 
Gelder  V.  Post,  2  Edw.  577.  In  the  earlier  decisions,  the  courts  of  New 
York  followed  the  English  rule.  Humphrey  v.  Pinney,  2  Johns.  484; 
Shaw  V.  White,  13  Johns.  484.  In  Hade  v.  James,  6  Johns.  Ch.  258,  and 
Barney  r.  Frowner,  9  Ala.  901.  the  question  is  left  an  open  one.  But 
see  Marble  r.  Lewis,  36  How.  Pr.  343.  When  there  is  a  change  in  the 
law  after  the  husband's  alienation,  the  widow's  dower  in  respect  to  the 
aliened  lands  is  governed  by  the  law  as  it  existed  at  the  time  of 
alienation.  McCafferty  r.  McCafferty,  8  Blackf.  218;  Cowan  r.  Strader, 
1  Ind.  134;  Moore  t\  Kent,  37  Iowa  20,  s.  c.  18  Am.  Rep.  1;  Kennerly 
V.  Missouri  Ins.  Co.,  11  Mo.  204. 

»i  Powell  r.  Monson,  3  Mason  365;  Boyd  V.  Carlton,  60  Me.  20.  31 
Am.  Rep.  268;  Carter  r.  Parker,  28  Me.  509;  Thompson  r.  Morrow,  5 
Serg.  &.  R.  289;  Shirley  v.  Shirley,  5  Watts  328;  Bowie  r.  Berry,  3 
Md.  Ch.  3.59;  Rawlins  r.  Buttel,  1  Houst.  224;  Green  v.  Tennant,  2 
Harr.  336;  Dunseth  r.  Bank  of  United  States,  6  Ohio  76;  Smith  r.  Ad- 
dleman,  5  Blackf.  406;  Woodbridge  v.  Wilkins,  3  How.  (Miss.)  300; 
Taylor  r.  Broderick,  1  Dana  348;  Jonas  v.  Hunt,  40  N.  J.  Eq.  660; 
Grissom  r.  Moore,  106  Ind.  296,  55  Am.  Rep.  742  (case  of  executory 
contract  of  sale  during  the  life-time  of  the  husband).  And  if  the 
alienee  has,  during  the  life-time  of  the  husband,  diminished  the  value 
of  the  land  by  his  mismanagement,  the  widow  is  without  remedy. 
Powell  V.  Monson.  3  Mason  368;  Thompson  V.  Morrow,  5  Serg,  &  R.  290; 
McClanahan  v.  Porter,  10  IMo,  746. 
130 


CH.    VII.]  DOWER,  §    107 

requisite  in  the  assignment  "of  common  right"  is,  that 
the  estate  set  out  to  her  must  be  absolute  for  life,  and  free 
from  conditions  and  exceptions.®- 

§  106.  Dower  —  Against  common  right. —  In  the  assignment 
of  dower,  however,  it  is  not  necessary  that  it  should  be 
set  out  in  the  manner  above  described.  Any  other  mode 
of  assignment  may  be  adopted  by  agreement  of  the  parties, 
and  that  agreement  will  effectually  bar  all  claims  to  doiwer 
"of  common  right,"  if  properly  and  legally  executed;  but 
the  practice  is  for  the  widow  to  give  a  release  under  seal 
of  her  dower  right;®'  and  when  the  settlement  has  been 
properly  executed,  it  cannot  be  re-opened  and  the  dower  re- 
asserted, or  re-assigned,  unless  it  is  charged  that  the  agree- 
ment had  been  procured  by  fraud."*  It  is  sometimes  pro- 
vided by  statute  that  a  settlement  in  bar  of  dower  cannot 
have  the  effect  intended  unless  such  intention  to  bar  dower 
is  expressed  on  the  face  of  the  agreement."' 

§  107.  By  whom  may  dower  be  assigned. —  The  tenant  of  the 
freehold  is  the  only  person  who  is  entitled  to  make  the  as- 
signment. A  disseisor  may  do  it,  and  if  the  assignment  is 
made  strictly  "of  common  right,"  it  is  binding  upon  the 
rightful  owner."^  If  the  tenant  be  a  minor,  his  assignment 
is  subject  to  revision  on  his  arrival  at  his  majority,  unless 
he  is  under  guardianship,  and  his  guardian  makes  the  as- 
signment, when  it  will  be  binding  upon  him."^     Where  the 

»2Co.  Lit.  34  b,  note  217;  1  Washburn  on  Real  Prop.  274. 

03  1  Washburn  on  Real  Prop.  273.  274;  Co.  Lit.  34  b;  Vernon's  Case,  4 
Rep.  1;  Conant  r.  Little,  1  Pick.  180;  Jones  f.  Brewer,  76.  314. 

»<  Scott  t\  Ashlin   (Va.),  10  S.  E.  Rep.  751. 

»'  Dudley  v.  Davenport,  8H  Mo.  462. 

o«Co.  Lit.  36  a;  Stoughton  v.  Leigh.  1  Taunt.  402;  1  Washburn  on 
Real  Prop.  274. 

»7  2  Bla.  Com.  136;  Young  v.  Tarbell,  17  Me.  .509;  Curtis  v.  Hobart, 
41  Me.  230;  Jones  r.  Brewer,  1  Pick.  314;  McCormick  v.  Taylor,  2  Ind. 
3.36;  Boyers  r.  Newbanks.  Id.  388.  In  Illinois  the  assignment  may  be 
revised  by  the  infant  tenant  of  the  freehold,  although  it  was  set  out  by 

131 


{J    108  DOWER.  [PAUT    I. 

land  is  held  by  two  or  more  jointly,  either  may  set  out  the 
dower.®' 

§  108.  Eemedies  for  recovery  of  dower. —  If  the  dower  is 
not  assigned  within  the  time  appointed  by  the  law  for  the 
continuance  of  the  widow's  quarantine,  she  can  compel  the 
assignment  by  a  resort  to  the  courts.  As  a  general  rule, 
controlled  in  each  State  by  statutory  enactments,  there  are 
three  remedies  for  the  recovery  of  dower:  1.  The  common 
law  action  for  dower.  2.  A  similar  action  in  equity.  3.  A 
summary  proceeding  in  courts  of  probate,  usually  confined 
to  claims  of  dower  against  the  heirs  and  devisees  of  the 
husband.®®  The  most  effective  remedy  is  the  action  in  equity, 
in  that  it  includes  within  its  jurisdiction  actions  upon 
equitable  as  well  as  legal  dower,  while  the  common-law  rem- 
edy is  confined  to  legal  dower.  For  further  particulars, 
reference  must  be  made  to  the  statutes  of  the  States. 

the  guardian.  See  Bonner  V.  Peterson,  44  111.  260.  In  Nebraska,  dower 
is  assignable  by  the  county  court.  Tyson  v.  Tyson  ( 1904 ) ,  98  M.  W. 
Rep.  1076.  In  Iowa,  either  by  a  proceeding  at  law,  or  in  equity.  Bee- 
man  V.  Kitzman,  99  N.  W.  Rep.  171. 

98  Co.  Lit.  35  a ;   1  Washburn  on  Real  Prop.  275. 

98  Where  it  has  not  been  changed  by  statute,  courts  of  law  and  equity 
have  concurrent  jurisdiction  in  respect  to  dower,  and  the  rules  govern- 
ing assignments  are  alike  in  both  courts.  Herbert  v.  Wren,  7  Cranch 
376;  Mayberry  v.  Brien,  15  Pet.  21;  Badgley  v.  Bruce,  4  Paige  98; 
Wells  V.  Beall,  2  Gill  &  J.  468;  Campbell  v.  Murphy,  2  Jones  Eq.  357; 
Osborne  V.  Horine,  17  111.  92.  The  remedy  in  the  Probate  Court  is 
generally  confined  to  cases  of  dower,  which  arise  between  the  widow 
and  the  heir  or  devisee.  As  a  rule  this  remedy  cannot  be  resorted  to 
in  a  case  of  dower  against  the  husband's  alienee.  French  v.  Crosby,  23 
Me.  276;  Sheaflfe  v.  O'Neil,  9  Mass.  9;  Raynham  v.  Wilmarth,  13  Mete. 
414;  Matter  of  Watkins,  9  Johns.  246;  Bisland  v.  Hewett,  11  Smed. 
&  M.  164;  Thrasher  V.  Pinckard,  23  Ala.  616.  In  Vermont  the  court 
of  probate  has  exclusive  jurisdiction.  Danforth  V.  Smith,  23  Vt.  247. 
In  Michigan  ejectment  seems  to  lie  for  the  enforcement  of  the  dower. 
Rea  V.  Rea,  63  Mich.  257.  But  it  cannot  be  instituted  by  any  vendee  of 
the  widow;  she  alone  can  bring  the  action  of  ejectment  for  the  assign- 
ment of  dower.  Galbraith  v.  Fleming,  60  Mich.  408.  See  Tyson  V.  Ty- 
son  (1904),  98  N.  W.  Rep.  1076;  Beeman  v.  Kitzman,  99  N.  W.  Rep. 

132 


CH.    VII.]  DOWER.  §    110 

§  109.  Demand  necessary. —  In  some  States  it  is  required 
by  statute  that  a  demand  should  be  made  of  the  heir  or 
tenant  before  commencing  the  action;  and,  generally,  when 
damages  are  asked  for,  a  demand  is  made,  whether  required 
by  statute  or  not,  in  order  to  fix  a  time  from  which  the  dam- 
ages begin  to  run.^  It  is  not  necessary  that  the  demand 
should  be  made  in  writing,  and  if  it  is  done  by  attorney 
the  power  may  be  given  by  parol.^  But  if  the  demand  or 
power  of  attorney  is  in  writing,  the  extent  of  the  demand 
should  be  made  sufficiently  clear  in  the  writing,  in  order 
that  no  resort  to  parol  evidence  will  be  necessary.^  The  de- 
mand must  be  made  of  the  tenant  of  the  freehold,  and,  if 
more  than  one,  it  must  be  made  of  all  of  them;  and  such  a 
demand  is  good  against  subsequent  purchasers  of  the  ten- 
ant* 

§  110.  Against  whom  and  where  the  action  is  brought. — 
The  action  must  be  brought  in  the  county  where  the  land 
lies;  and  the  right  of  dower  is  construed  and  governed  by 
the  law  of  the  place  in  which  it  is  situated.''     The  action  is 

171;    nybart    r.   Jones,    130   N.   C.    227,   41    S.    E.    Rep.    293;    Rice   r. 
Waddell,  168  Mo.  99,  67  S.  W.  Rep.  605. 

1  Young  r.  Tarbell,  37  Me.  509;  Stevens  v.  Reed,  37  N.  H.  49;  Pond 
r.  Johnson.  9  Gray  193;  Jackson  f.  Churchhill,  7  Cow.  287;  Hopper 
V.  Hopper,  2    N.  J.  715. 

2  Watson  V.  Watson,  10  C.  B.  3;  Lathrop  v.  Foster,  51  Me.  307; 
Baker  r.  Baker,  4  Me.  67;  Stevens  v.  Reed,  37  N.  II.  49;  Page  V.  Page, 
6  Cush.  196. 

sHaynes  f.  Powers,  22  N.  H.  590;  Davis  v.  W-alker,  42  N.  H.  482; 
Sloan  r.  Whitman,  5  Cush.  532;  Atwood  v.  AtwodH,  22  Pick.  283;  Bear 
V.  Snyder,  11  Wend.  592. 

«Luce  V.  Stubbs,  35  Me.  92;  Barker  v.  Blake,  36  Me.  433;  Watsott- 
r.  Watson,  10  C.  B.  3. 

5  1  Washburn  on  Real  Prop.  280;  2  Kent's  Com.  183,  note;  Lamar  r. 
Scott,  3  Strobh.  502;  Duncan  r.  Dick,  Walk.  281.  And  except  where 
the  land  has  been  sold  during  the  life-time  of  the  husband,  the  dower 
right  is  determined  by  the  law  in  force  at  the  death  of  the  husband. 
Melizet's  Appeal,  17  Pa.  St.  455;  Randall  v.  Kreiger,  2  Dill.  447;  Lucas 
r.  Sawyer,  17  Iowa  517.  As  to  lands  conveyed  by  the  husband,  see 
ante,  Sec.  105,  note. 

133 


§    112  DOWER.  [part   I, 

brought  only  against  those  who  are  tenants  cf  the  freehold 
at  the  beginning  of  the  action,  and  such  is  the  rule,  even 
though  there  has  been  a  conveyance  after  the  demand  has 
been  made;  and,  likewise,  if  the  tenant  is  a  disseisor,  he  is 
the  proper  party."  And  although  the  widow,  in  the  action 
for  her  dower,  is  bound  to  overcome  any  evidence  of  the 
defect  of  title  in  her  husband,  which  is  introduced  by  the 
defendant  in  his  resistance  of  her  claim  of  dower,  until 
such  defect  of  title  is  claimed,  she  is  not  obliged,  in  sup- 
port of  her  dower  right,  to  make  strict  proof  of  her  husband 's 
title.^ 

§  111.  Continued  —  Abatement  by  death  of  widow. —  The 
action  for  dower  is  personal,  and  dies  with  the  widow,  and 
the  suit  is  abated  for  every  purpose,  notwithstanding  judg- 
ment has  been  rendered,  if  the  assignment  and  the  assess- 
ment of  damages  have  not  been  made.^ 

§  112.  Judgment  —  What  it  contains. —  If  the  widow  is  suc- 
cessful in  her  action,  she  is  given  judgment  for  the  recovery 
and  assignment  of  dower,  and,  in  some  places,  damages  for 
its  detention.®  The  judgment  is  of  a  twofold  character; 
the  right  to  recovery  of  her  dower,  being  a  common-law 
right,  while  the  claim  for  damages  rests  upon  statute.  Judg- 
ment may  be  rendered  for  the  assignment  of  dower,  whether 
the  claim  for  damages  has  been  lost,  or  it  still  exists;  but 
if  the  right  to  dower  has  been  lost,  whether  it  be  by  the 

«  Barker  v.  Blake,  3^  Me.  433 ;  Manning  v.  Laboree,  33  Me.  .343 ;  Hurd 
V.  Grant,  3  Wend.  340;  Miller  v.  Beverley,  1  Hen.  &  M.  367;  Norwood  v. 
Morrow,  4  Dev.  &  B.  442.  And  where  the  dower  is  to  be  assigned  out 
of  several  parcels  of  land,  belonging  to  different  persons,  unless 
changed  by  statute,  a  separate  action  must  be  brought  against  each 
of  the  owners.  They  cannot  be  sued  jointly.  Fosdick  v.  Gooding,  1  Me. 
30;  Barney  v.  Frowner,  9  Ala.  901. 

7  Stark  f .  Hopson,  22  S.  C.  42. 

sRowe  r.  .Johnson.  19  Me.  146;  Atkins  v.  Yeomana,  6  Mete.  438; 
Sandback  v.  Quigley,  8  Watts  460;  Tumey  v.  Smith,  14  111.  242. 

9  2  Bla.  Com.  1.36;  Co.  Lit.  32  b;  1  Washburn  on  Real  Prop.  279,  281. 
134 


CH.    VII.]  DOWER.  §    113 

running  of  the  Statute  of  Limitations,  or  through  abate- 
ment by  the  death  of  the  widow,  no  damages  can  be  re- 
covered by  her  or  her  personal  representatives.^" 

§  113.  Continued  —  Damages  when  recoverable. —  Damages 
could  not,  at  common  law,  be  recovered  for  the  detention 
of  the  dower  lands.  They  were  first  granted  by  the  Statute 
of  Merton,  which  has  generally,  in  this  country,  either  been 
recognized  as  the  common  law  or  substantially  re-enacted 
with  important  additions."  In  England,  under  the  Statute 
of  Merton,  the  damages  could  only  be  recovered  of  the  heir 
or  abator,  and  their  assigns,  not  against  the  alienee  of  the 
husband.  But  in  this  country,  damages  are  recoverable 
against  the  heir  from  the  death  of  the  husband,  or  the  ex- 
piration of  her  quarantine :  if  it  is  against  a  purchaser, 
they  are  allowed  either  from  the  demand  made  upon  him, 
or  the  commencement  of  the  suit,  according  to  the  statutory 
provisions  or  local  laws  of  each  State.^-     In  Now  York  there 

10  Co.  Lit.  32  b,  note  4;  Rowe  v.  Johnson,  19  Mc.  146;  Tuck  v.  Fitts, 
18  N.  H.  171;  Atkins  v.  Yeomans,  6  Mete.  438;  Sharp  i:  Pottit,  4  Dall. 
212;  Shirtz  v.  Shirtz,  5  Watts  255;  Turney  r.  Smith,  14  111.  242;  Waters 
r.  Gooch,  0  J.  J.  Marsh.  586. 

11  Co.  Lit.  32  b;  Thompson  v.  Collier,  Yelv.  112;  Embree  v.  Ellis,  2 
Johns.  119;  Hitchcock  v.  Harrington,  6  Johns.  290. 

12  In  some  of  the  States  the  English  rule  still  prevails  that  she  cannot 
recover  from  the  husband's  grantee.  Sharp  v.  Pettit,  2  Dall.  212;  Fisher 
V.  Morgan,  1  N.  J.  L.  125;  Waters  v.  Gooch,  6  J.  J.  Marsh.  586.  In 
others  no  damages  are  recoverable  in  any  case.  Hayward  v.  Cuthbert, 
1  McCord  386;  Bank  of  United  States  v.  Dunseth,  10  Ohio  18.  Where 
the  suit  is  against  the  heir,  damages  are  allowed  from  the  expiration  of 
her  quarantine;  but  if  the  heir  has  conveyed  the  estate  away,  damages 
can  be  recovered  of  the  vendee  from  the  time  of  his  purchase.  New- 
bold  V.  Ridgway,  1  Harr.  55;  Green  r.  Tonnant.  2  lb.  336;  Hussell 
I*.  Austin,  1  Paige  192.  But  see  Seaton  r.  Jamison,  7  Watts  583.  The 
damages  are  recovered  of  the  heir  for  the  time  elapsing  between  the 
death  of  the  husband  and  the  conveyance  by  the  heir.  Hazen  f.  Tluir- 
ber,  4  Johns.  Ch.  604.  Generally,  where  damages  are  allowed  against 
the  husband's  alienee,  they  run  from  the  demand  for  assignment.  See 
1  Washburn  on  Real  Prop.  282,  283;  Sellman  v.  Bowen.  8  Gill  &  J.  50; 
Beavers  v.  Smith,   11    Ala.  20;   Thrasher  v.  Tyack,   15  Wis.  259;   Me- 

135 


§    114  DOWER.  [part    I. 

is  a  further  restriction,  that  damages  shall  not  be  allowed 
for  more  than  six  years.^*  The  mode  of  computing  the  dam- 
ages is  the  same  everywhere,  being  one-third  of  the  annual 
rents  and  profits  for  the  time  for  which  damages  are  al- 
lowed.** The  damages  are  assessed  by  the  jury  which  renders 
the  verdict,  if  it  is  an  action  at  law;  and  if  an  action  in 
equity  by  the  court,  if  assented  to,  or  by  a  sheriff  jury 
summoned  for  the  purpose." 

§  114.  Contimied  —  Assignment  after  judgment. —  The 
dower,  after  judgment  has  been  rendered,  may  be  set  out 
to  her  by  the  tenant  of  the  freehold.  And  a  parol  assign- 
ment, if  according  to  common  right,  would  be  binding  upon 
all  parties.  But  if  the  parties  cannot  agree,  the  widow  is 
entitled  to  an  order,  or  writing,  directed  to  the  sheriff  and 
commanding  him  to  set  out  the  dower.  He  either  does 
this  himself,  or  m  some  States  causes  it  to  be  assigned  by 
commissioners,  who  are  appointed  for  that  purpose."  When- 
ever dower  is  awarded  by  legal  process,  the  assignment  must 
always  be  made  according  to  "common  right,"  so  far  as  it 
is  possible  to  do  so  under  the  circumstances  of  the  case.  Any 
other  mode  of  assignment  would  be  invalid,  unless  assented 
to  by  the  parties.^^     The  sheriff  is  then  required  to  make  a 

Clanahan  v.  Porter,  10  Mo.  746;  Lee  v.  Campbell  (Ky.),  1  S.  W.  Rep. 
873.  In  Virginia,  from  the  beginning  of  the  action.  Tod  V.  Baylor,  4 
Leigh  498.  In  Virginia  interest  on  the  value  of  the  widow's  claim, 
against  an  alienee,  runs  only  from  the  date  of  the  suit.  Dickenson  V. 
Gray   (1902),  42  S.  E.  Rep.  298. 

13  Bell  V.  New  York,  10  Paige  70;  Marble  v.  Lewis,  36  How.  Pr.  337; 
Price  V.  Price,  54  Hun  349. 

14  4  Kent's  Com.  65 ;  1  Washburn  on  Real  Prop.  282 ;  Winder  v.  Little, 
4  Yeates  152;  Layton  v.  Butler,  4  Harr.  507;  Wilthaus  V.  Schack,  38 
Hun  560;  Lee  v.  Campbell   (Ky.),  1  S.  W.  Rep.  873. 

15  1  Washburn  on  Real  Prop.  283. 

18  1  Washburn  on  Real  Prop.  284,  285 ;  Co.  Lit.  208  a,  note  105 ;  Mann- 
drell  V.  Manndrell,  7  Ves.  567 ;  Stoughton  v.  Leigh,  1  Taunt.  402 ;  Mans- 
field V.  Pembroke,  5  Pick.  449;  Parker  v.  Parker,  17  Pick.  236;  Weir  v. 
Tate,  4  Ired.  Eq.  264. 

17  1  Washburn  on  Real  Prop.  273,  285,  286.  Pierce  V.  Williams,  3  N. 
J.  L.  521;  Brittain  v.  Mull,  91  N.  C.  498. 

136 


CH.    VII.]  DOWER.  §    115 

return  to  the  court,  and  if  no  objections  are  raised  against 
the  assignment,  it  is  confirmed  by  order  of  the  court,  and  be- 
comes binding  upon  all  parties.  ^^ 

§  115.  Assignmeiit  —  When  two  or  more  widows  claim 
dower. —  If  the  land  descends  from  one  person  to  another, 
both  dying  before  assignment  of  dower  to  the  widow  of  the 
first,  the  widows  of  both  the  successive  tenants  would  have 
dower  in  the  same  land.  But  since  by  the  assignment  of 
dower,  the  heir  loses  the  seisin  to  that  part  of  the  land, 
the  widow  of  the  heir  would  only  have  dower  out  of  the 
remaining  two-thirds,  in  conformity  with  the  maxim,  dos  de 
dote  peti  non  debet.  But  if  the  heir  survived  the  ancestor's 
widow,  he  would  regain  the  actual  seisin  to  the  reversion 
of  the  widow's  one-third,  and  his  wife's  dower  right  could 
at  once  attach."  But  where  dower  is  claimed  by  two  widows, 
whose  husbands  sustained  the  relation  of  vendor  and  vendee 
in  respect  to  the  land,  the  assignment  of  dower  to  the  widow 
of  the  former  would  only  suspend  the  dower  right  of  the 
other  widow  to  that  one-third  during  the  life-time  of  the 
first  dowress;  and  it  would  revive  upon  her  death,  provided 
the  assignment  to  the  elder  dowress  did  not  take  place  be- 
fore the  marriage  of  the  vendee.^"     But  if  before  assignment 

"1  Washburn  on  Real  Prop.  284.  288;  Serry  v.  Curry  (Neb.),  42 
N.  W.  Rep.  97,  s.  c.  26  Neb.  203.  And  if  there  is  any  objection  to  be 
made  against  the  assignment,  it  must  be  presented  at  the  time,  when 
the  return  of  the  sheriff  or  commissioner  comes  up  for  confirmation. 
Tilson  V.  Thompson,  10  Pick.  359;  Jackson  v.  Hixon,  17  Johns.  123; 
Chapman  v.  Schroeder,  10  Ga.  321.  See  Fellows  v.  Bunn  (Ark.),  11  S. 
W.  Rep.  480. 

19  Kitchens  r.  Hitchens,  2  Vern.  405 ;  Manning  v.  Laboree,  33  Me.  343 ; 
Cook  V.  Hammond,  4  Mason,  485;  Elwood  v.  Klock,  13  Barb.  50;  Rey- 
nolds V.  Reynolds,  5  Paige  161;  SafTord  v.  SafTord,  7  Paige  250;  McLeery 
V.  McLeery,  65  Me.  172,  20  Am.  I^w  Rep.  683;  Robinson  r.  Millei^  2 
B.  Mon.  288. 

20  Bastard's  Case,  4  Rep.  122;  Geer  r.  Hamblin,  1  Me.  54;  Manning 
r.  Laboree,  33  Me.  343;  Dunham  v.  Osborne,  1  Paige  634;  Reynolds  V. 
Reynolds,  5  Paige  161;  Stahl  r.  Stahl,  114  111.  375;  Stevenson  V. 
Brasher    (Ky.),    13  S.  W.  Rep.  242.     See   Bear   v.   Snyder,    11   Wend. 

137 


I    116  DOWER.  [PAiiT   1. 

the  elder  dowress  released  her  rig:ht  to  the  tenant  of  the  free- 
hold, it  is  simply  an  extinguishment  of  her  right,  and  con- 
veys nothing  to  the  tenant.  The  second  widow  would  then 
be  entitled  to  dower  out  of  the  entire  estate,  as  if  there  had 
been  no  superior  claim  of  dower.^^ 

§  116.  Decree  of  sum  of  money  in  lieu  of  dower. —  In  some 
of  the  States,  it  is  held  competent  for  the  court,  where 
money  is  assigned  instead  of  dower  in  the  lands,  to  grant 
her  a  gross  sum  of  money  instead  of  an  annual  share  in 
the  income.  But  the  power  of  the  court  to  do  so  is  limited 
in  other  States  to  cases  where  parties  have  agreed  upon  that 
mode  of  settlement.^-  As  a  rule  the  amount  of  money  to 
be  paid  is  calculated  upon  the  chances  of  life.  The  tenant 
in  reversion  would  have  to  pay  to  the  widow  such  a  sum  of 
money  as  would  equal  the  present  value  of  the  amount  of 
interest  which  would  probably  have  been  paid  to  the  widow 
during  her  life,  if  there  had  been  an  assignment  of  common 
right,  estimating  her  probable  length  of  life  by  the  ordianry 
tables  of  mortality.^^     And  if  the  money  value  of  the  wife's 

592.  In  Illinois,  recently,  the  first  wife  was  held  entitled  to  dower, 
subject  to  second  wife's  homestead  and  the  second  wife  was  then  en- 
titled to  dower  in  the  realty  remaining  and  dower  in  the  first  as- 
signment of  dower,  in  case  of  her  survival  of  the  first  wife.  Potter  v. 
Clapp,  203  111.  592,  G8  N.  E.  Rep.  81. 

2iElwood  V.  Klock,  13  Barb.  50;  Atwood  v.  Atwood,  22  Pick.  283. 
But  see  Leavitt  V.  Lamprey,  13  Pick.  382,  where  the  court  holds  that 
a  release  or  assignment  by  the  elder  dowress  to  the  tenant,  after  judg- 
ment for  recovery  of  her  dower  has  been  rendered,  will  not  entitle  the 
second  dowress  to  dower  out  of  the  whole  property. 

22Hebert  v.  Wren,  7  Cranch  370;  Johnson  V.  Elliott,  15  Ala.  112; 
Lewis  V.  James,  8  Humph.  537;   Hart  v.  Burch,  130  111.  426. 

-'3  Simonton  v.  Gray,  33  Me.  50 ;  Jennison  v.  Hapgood,  14  Pick.  345 ; 
Brewer  v.  Vanarsdale,  5  Dana  204.  In  Sec.  54  an  algebraic  formula  is 
given  which  may  be  used  in  the  estimation  of  the  present  value  of  the 
dower  right,  the  annual  rents  taking  the  place  in  the  formula  of  the 
annual  interest  on  the  incumbrance.  In  South  Carolina  the  gross  sum 
is  arbitrarily  computed  at  one-sixth  of  the  fee.  Wright  v.  Jennings,  1 
Bailey  27;  Garland  v.  Crow,  2  Bailey  24.  See  ante.  Sec.  54. 
138 


CH.    VII.]  DOWER.  §    117 

dower  right  is  to  be  ascertained  during  coverture,  the  money 
value  of  an  annuity  paid  during  the  joint  lives  of  husband 
and  wife,  must  be  deducted  from  the  present  value  of  the 
income  to  be  paid  to  her  during  her  life.^* 

§  117.  Dower  barred  by  jointure. —  Dower  is  also  barred  by 
jointure,  which  is  a  provision  made  for  the  wife  by  the 
husband  out  of  his  property  and  expressed  to  be  in  lieu  of 
dower.-''  At  common  law  there  were  two  kinds,  legal  and 
equitable.  Legal  jointure  was  a  provision,  made  by  way  of 
use, — an  equitable  estate  for  life  or  in  fee;  an  estate  for 
years  was  not  sufficient.  It  could  not  be  provided  for  out 
of  the  husband's  personalty,  only  out  of  real  property;  and 
if  it  took  the  form  of  an  annuity,  it  had  to  be  made  a  charge 
upon  land.-®  If  it  is  expressly  stated  to  be  in  lieu  of 
dower,  a  provision  of  that  kind  would  bar  dower,  even 
though  made  by  a  stranger.^^  Nor  is  it  necessary  that  the 
estate  should  be  equal  in  value  to  the  dower  right,  if  it  is  ?. 
substantial  provision.^*  At  common  law  legal  jointure  did 
not  require  the  assent  of  the  wife  or  her  guardian  in  order 
to  make  it  binding  upon  her,  provided  it  was  not  fraudulent. 
Her  assent  only  operated  to  conclude  her  from  setting  up 

2*  Strayer  V.  Long  (Va.),  10  S.  E.  Rep.  574.  In  Georgia,  where  a 
gross  sum  is  allowed,  in  lieu  of  dower,  the  value  of  her  interest  should 
be  estimated  upon  the  basis  of  her  age  at  her  husband's  death  and  the 
value  of  the  lands,  when  the  assignment  is  made,  plus  one-third  the  rents 
and  profits  since  the  husband's  death,  less  a  reasonable  charge  for  use 
and  occupation  where  she  has  been  in  possession.  Johnson  V.  Gordon, 
102  Ga.  350,  30  S.  E.  Rep.  507.  But  see,  Owens  v.  Barrel!,  88  Md. 
204,  40  Atl.  Rep.  880;  Geiger  i'.  Geiger,  57  S.  C  521,  35  S.  E.  Rep.  1031. 

2K  It  will  not  bar  the  dower,  unless  the  provision  is  expressly  stated 
to  be  in  lieu  of  it.  Buckinghamshire  v.  Drury,  2  Eden  72;  Bubier  r. 
Roberts,  49  Me.  363;  Reed  v.  Dickermann,  12  Pick.  149;  Swaino  v. 
Ferine,  5  Johns.  Ch.  489;  Couch  v.  Stratton,  4  Ves.  391. 

26  2  Bla.  Com.  137,  138;  Vernon's  Case,  4  Rep.  1;  Caruthers  v. 
Caruthers,  4  Bro.  C.  C.  500;  McCartee  v.  Teller,  2  Paige  562. 

27  1  Washburn  on  Real  Prop.  316;   1  Cruise  Dig.  195. 

28  1  Washburn  on  Real  Prop.  116;  Drury  v.  Drury,  2  Eden  57;  Buck- 
inghamshire V.  Drury,  lb.  75. 

139 


§   117  DOWER.  [part  I. 

the  charge  of  fraud,'*  But  the  rule  in  this  respect,  has  been 
changed  in  many  of  the  States,  and  the  intended  wife  is 
now  required  to  be  made  a  party  to  the  deed.'"  Equitable 
jointure,  which  is  now  more  largely  resorted  to  in  this  coun- 
try, instead  of  being  a  formal  actual  provision,  is  an  executory 
contract  for  such  .a  provision,  of  which  a  court  of  equity 
will  decree  specific  performance.  The  intended  wife,  or  her 
guardian,  if  a  minor,  must  assent  to  the  jointure,  and  with 
such  assent  it  may  issue  out  of  either  real  or  personal  prop- 
erty' or  both,  and  may  assume  any  form.^^  Both  legal  and 
equitable  jointure,  in  order  to  be  a  complete  bar  to  dower, 
must  be  made  before  marriage.  If  it  is  settled  upon  the 
wife  after  marriage,  the  widow  has  the  right  to  elect  which 
she  shall  take,  but  she  is  not  entitled  to  both.^^     Jointures 

2»Co.  Lit.  36b;  1  Washburn  on  Real  Prop.  316,  317;  Buckingham- 
shire V.  Drury,  2  Eden  64;  McCartee  v.  Teller,  3  Paige  556. 

80  Vance  v.  Vance,  21  Me.  370;  Bubier  v.  Roberts,  49  Me.  463;  1 
Greenl.  Cruise  195,  200.  See,  also,  Kennedy  v.  Nedrow,  1  Dall.  417; 
Ambler  V.  Norton,  4  Hen.  &  M.  23.  A  contract  by  which  the  wife 
agreed,  before  marriage,  to  release  all  claims  to  dower  in  her  husband's 
lands,  but  which  did  not  provide  for  her  support  after  his  death,  was 
not  enforced,  in  Missouri,  as  a  contract  for  equitable  jointure.  King 
V.  King,  82  S.  W.  Rep.  101.  But  see,  for  enforcement  of  similar  con- 
tract, Cummings  v.  Cummings,  25  R.  I.  528,  57  Atl.  Rep.  302;  In  re 
Fennell's  Est.,  207  Pa.  St.  309,  56  Atl.  Rep.  875. 

31  Drury  v.  Drury,  2  Eden  39-75 ;  Caruthers  v.  Caruthers,  4  Bro.  C.  C. 
500;  Cobert  V.  Cobert,  1  Sim.  &  Stu.  612;  Smith  v.  Smith,  5  Ves.  189; 
McCartee  V.  Teller,  2  Paige  550;  Shaw  v.  Boyd,  5  Serg.  &  R.  309;  1 
Washburn  on  Real  Prop.  318,  319;  Williams  on  Real  Prop.  236.  Rawle's 
note.  In  most  of  the  United  States,  an  ante-nuptial  settlement,  or 
agreement,  is  ineffectual  to  bar  a  wife's  dower,  unless  it  is  based  upon 
a  sufficient  consideration  and  the  wife's  support  is  provided  for.  King 
V.  King  (Mo.  1904),  82  S.  W.  Rep.  101;  Tiffany,  Real  Prop.  Sec. 
193,  p.  462.  But  where  there  is  a  sufficient  consideration  'and  her 
maintenance  is  assured,  under  the  agreement,  the  settlement  in  lieu  of 
dower  is  enforced.  Cummings  t;.  Cummings,  25  R.  I.  528,  57  Atl.  Rep. 
302.  And.  likewi.se,  such  a  post-nuptial  agreement,  is  enforced.  In  re 
Fennell's  Estate,  207  Pa.  St.  309,  56  Atl.  Rep.  875.  And,  as  to  an 
ante-nuptial  settlement,  the  marriage  is  a  sufficient  consideration,  in 
Kentucky.     Forwood  v.  Forwood,  86  Ky.  114. 

32  McCartee   v.   Teller,   2   Paige   559;    Drury   v.   Drury,   2   Eden   64; 

140 


CII.    Vil.j  DOWER.  §    118 

have  of  late  years  given  way  to  what  are  known  as  marriage 
settlements,  so  that  they  are  very  rarely  met  with  in  actual 
practice.  Whatever  form  the  provision  for  election  may 
take,  if  it  is  avoided  for  any  cause,  the  dower  right  revives, 
at  least  as  against  the  persons  in  whose  favor  it  is  avoided ; 
as  for  example,  where  the  marriage  settlement  is  void  against 
existing  creditors.  Her  dower  right  in  that  case  attaches 
to  tlie  property  which  is  thus  subjected  to  the  claim  of 
creditors.^^ 

§  118.  Continued  —  By  testamentary  provision. —  If  the  tes- 
tator makes  provision  for  his  widow  in  lieu  of  dower,  the 
widow  must  elect  between  that  and  her  dower  right.  The 
right  of  election  is  a  personal  one  and  is  not  transferable. 
The  provision,  if  accepted,  will  be  a  good  bar  to  dower, 
though  it  consists  entirely  of  personality,  thus  excluding  her 
from  her  share  in  the  realty.^*  If  accepted,  it  not  only  bars 
her  dower  to  lands,  of  which  the  husband  died  seised,  but 
also  to  those  which  he  had  aliened  during  life.^'^  On  the 
other   hand,    if   the    testamentary   provision    is   rejected   by 

Swaine  v.  Ferine,  5  Johns.  Cli.  482;  1  Washb.  on  Real  Prop.  317; 
Shane  v.  McNeill,  76  Iowa,  459;  Bottomly  v.  Spencer,  36  Fed.  Rep.  732. 
In  Illinois  a  wife  may  release  her  dower  for  a  consideration,  provided 
the  acknowledgment  is  made  according  to  the  provisions  of  a  statute. 
Bottomly  v.  Spencer,  36  Fed.  Rep.  732. 

•"Strayer  v.  Long  (Va.),  10  S.  E.  Rep.  574. 

84Bubier  v.  Roberts,  49  Me.  463;  Hubbard  V.  Hubbard,  6  Mete.  50; 
Pollard  V.  Pollard,  1  Allen  490;  Welch  v.  Anderson,  28  Mo.  293;  Asch 
r.  Asch,  47  Hun  285;  Smith's  Appeal,  60  Mich.  436.  It  has  been  held 
that  the  right  of  election  in  such  cases  cannot  be  exercised  by  any  one 
for  her.  Thus  the  guardian  or  committee  of  an  insane  widow  cannot 
make  the  election.  Kennedy  v.  Johnstone,  65  Pa.  St.  451,  3  Am.  Rep. 
650.  But  this  proposition  is  not  supported  by  all  the  authorities,  not 
only  in  consequence  of  statutory  provisions,  but  independently  of  them. 
See  Young  v.  Boardman,  97  Mo.  181. 

35  Allen  V.  Pray,  12  Me.  138;  Chapin  17.  Hill,  1  R.  I,  446;  Kennedy 
r.  Mill,  13  Wend.  553;  Evans  v.  Pierson,  9  Rich.  9;  Hornsey  v.  Casey, 
21  Mo.  545;  Fairchild  V.  Marshall,  42  Minn.  14.  Contra,  Borland  V. 
Nichols,  12  Pa.  St.  38;  Higginbotham  v.  Cornwell,  8  Gratt,  83. 

141 


§    118  DOWER.  [part   I. 

her,  it  lapses  into  the  general  estate,  of  which  the  testator 
dies  intestate,  and  becomes  subject  to  the  widow's  rights 
under  the  law.**  But  the  intention  that  the  testamentary 
provision  must  be  taken  in  lieu  of  dower,  must  be  made  to 
appear  in  the  terms  of  the  will,  either  expressly  or  impliedly, 
as  where  the  behests  of  the  testator  cannot  be  fully  carried 
out,  if  dower  is  claimed  together  with  the  provision.  If 
this  intention  is  not  established,  she  might  at  common  law 
claim  both.^"  But  in  a  number  of  the  States  by  statutory 
enactment  a  testamentary  provision  in  favor  of  the  wife  is 
presumed  to  be  in  lieu  of  dower,  unless  the  contrary  inten- 
tion  is  shown.**     It  has  been   gravely   held   that   a  second 

36  Devecmon  v.  Shaw,  70  Md.  219. 

37  Herbert  V.  Wren,  7  Cranch  370 ;  Van  Order  v.  Van  Order,  10  Johns. 
30;  Adsit  V.  Adsit,  2  Johns.  Ch.  448;  Kennedy  v.  Nedrow,  1  Dall.  418; 
Duncan  v.  Duncan,  2  Yeates  302 ;  White  v.  White,  16  N.  J.  L.  202 ;  Hig- 
ginbotham  v.  Cornwell,  8  Gratt.  83;  Whilden  v.  Whilden,  Riley  205; 
Pickett  V.  Peay,  3  Brev.  545;  Hall  v.  Hall,  8  Rich.  Eq.  407;  Green  v. 
Green,  7  Port.  (Ala.)  19;  Pemberton  v.  Pemberton,  29  Mo.  408;  Os- 
trander  v.  Spickard,  8  Blackf.  227;  Yancey  v.  Smith,  2  Mete.  (Ky.) 
408;  Kanovalinka  v.  Schlegel,  39  Hun  451;  Snyder  V.  Miller,  67  Iowa 
201;  In  re  Hatch's  Est.  (Vt.),  18  Atl.  Rep.  814;  Chase  v.  Alley,  82  Me. 
234;  Callahan  v.  Robinson,  30  S.  C.  249;  Starr  V.  Starr,  54  Hun  300; 
Howard  v.  Watson,  76  Iowa  229.  The  widow  can  elect  to  take  a  provi- 
sion in  lieu  of  dower,  or  to  take  dower,  in  Illinois.  Hieser  r.  Sutter,  195 
111.  378,  63  N.  E.  Rep.  269.  And  in  Missouri,  Rice  v.  Waddill,  168  Mo. 
99,  07  S.  W.  Rep.  605.  Kentucky,  Redmond  v.  Redmond.  00  S.  W. 
Rep.  745 ;  and  Indiana,  Mannan  v.  Mannan,  55  N.  E.  Rep.  855. 

38  See  Herbert  v.  Wrenomitch,  7  Cranch  378 ;   Bubier  r.  Roberts,  49 
Me.  464;  Reed  v.  Dickerman,  12  Pick.  140;  Cook  v.  Couch,  100  Mo.  29 
Morgan  v.  Morgan,  41  N.  J.  Eq.  235;  Hair  v.  Goldsmith,  22  S.  C.  566 
Stunz  V.  Stunz  (111.),  3  Me.  407;  Griggs  v.  Veghty  (N.  J.),  19  Atl.  Rep 
867;   Hastings  v.  Clifford,  32  Me.   132;   Pratt   f.   Felton,  4  Cush.   174 
Kennedy  v.  Mills,  13  Wend.  556;  Thompson  v.  Egbert,  17  N.  J.  L.  459 
Boone  v.  Boone,  3  Har.  &  McH.  93;   Pettijohn  v.  Beasley,  1  Dev.  &  B 
254;  Lewis  v.  Lewis,  7  Ired.  Eq.  72;  Malone  v.  Majors,  8  Humph.  577 
Ex  parte  Moore,  1  How.   (Miss.)  665;  Akin  v.  Kellogg,  39  Hun  252,  s.  c 
119  N.  Y.  44;  Chadwick  v.  Tatem   (Mont.),  23  Pac.  729;  Bradhurst  r 
Field,  10  N.  Y.  S.  452;  Pumphrey  v.  Pumphrey,  52  Ark.  198.     But  see 
Merrill  v.  Emery,  10  Pick.  507,  where  it  is  held  that  if  the  widow  dies 
during  the  time  prescribed   for  making  the  election,  she  will  be   pre- 

142 


CH.    VII.]  DOWER.  §    119 

wife,  who  survives  her  husband,  cannot  claim  the  testamen- 
tary provision,  which  had  been  made  for  the  first  wife  in 
lieu  of  dower.^*  In  most  of  the  States,  there  is  also  a 
statutory  rule,  and  if  the  election  is  not  made  within  a 
certain  period,  usually  six  months,  after  the  death  of  the 
testator,  it  will  be  presumed  that  she  has  elected  to  take 
the  testamentary  provision.  And  equity  will  not  relieve 
against  such  presumption.***  Once  an  election  has  been  made, 
it  becomes  irrevocable,  and  binds  the  widow,  and  all  other 
parties  concerned  in  the  estate.*^ 

§  119.  Contimied  —  By  statutory  provisions  of  inheritance, 
—  In  many  of  the  States,  the  statutes  of  Descent  and  Distri- 
bution provide  for  the  division  of  the  decedent's  estate  be- 
tween his  children  and  his  wife,  making  the  wife  an  heir 
of  her  husband,  and  providing  that  she  shall  inherit  either 
a  child's  part,  or  some  fixed  proportion  of  the  estate,  abso- 
lutely. The  authorities  agree  that  this  statutory  provision 
for  inheritance  does  not  abolish  dower,  but  is  intended  to 
be,  and  must  be  taken  as,  in  lieu  of  her  dower,  and  she  must 
elect  which  of  the  two  interests  she  must  take.*^  Inasmuch 
as  the  statutory  provision  is  ordinarily  more  valuable  than 
the  dower  right,  the  natural  presumption  would  be,  where 
there  had  been  a  division  of  the  property  between  the  widow 
and  children,  that  she  had  elected  to  take  as  heir  of  her 
husband,  instead  of  the  dower  right  of  the  widow.  But  in- 
asmuch as  the  estate  she  takes  as  heir  is  subject  to  the  claims. 

sumed  to  have  elected  that  provision  which  was  most  favorable  to  her. 
See,  also,  In  re  Foster's  Will,  76  Iowa  364,  where  it  was  held  that  if  she- 
did  not  elect  to  take  the  testamentary  provision  within  six  months  after 
notice  to  her  of  such  provision,  she  would  lose  her  right  of  election  ancF 
be  entitled  only  to  her  dower  right  or  statutory  inheritance.  See  to 
same  effect,  Fosher  V.  Guilliams,  120  Ind.  172;  Howard  v.  Watson,  7<J 
Iowa  229. 

39Burrall  v.  Hurd,  61  Mich.  608;  Burrall  v.  Clark,  61  Mich.  024. 

♦oAken  v.  Kellogg,  115  N.  Y.  449. 

41  Hurley  v.  Mclver,  119  N.  Y.  13. 

«-•  Shoot  V.  Galbreath,  128  111.  214. 

143 


§    119  DOWER.  [part   I. 

of  creditors,  and  the  dower  interest  is  superior  to  such 
claims,*'  it  has  been  held  that  under  those  circumstances 
only  her  dower  right  had  been  allotted  to  her.**  The  dower 
right  is,  however,  not  inconsistent  with  her  claim  of  a  share 
under  the  Statute  of  Distribution,  in  her  husband's  per- 
sonal estate,  as  to  which  he  may  die  intestate.  She  may 
claim  such  distributive  share  as  well  as  her  dower.*"  It 
has  been  held  in  Missouri,  under  the  statute,  that  if  the 
widow  rejects  a  testamentary  provision,  she  still  has  the 
right  to  elect  between  her  dower,  and  the  distributive  share 
in  the  estate,  although  there  may  be  no  general  intestacy.*' 

43Hunkin8  r.  Hunkins  (N.  H.),  18  Atl.  Rep.  655. 

**  Cloyd  V.  Cloyd,  15  Lea  204. 

<5  Vower's  Will,  In  re,  113  N.  Y.  569. 

48  Young  V.  Boardman,  97  Mo.  181.  See  Rice  v.  Waddill,  168  Mo.  99, 
67  S.  W.  Rep.  605;  Redmond  v.  Redmond,  66  S.  W.  Rep.  745;  Mannan 
r.  Mannan,  55  N.  E.  Rep,  855;  Hieser  v.  Sutter,  195  111.  378,  63  N.  E. 
Rep.  269. 

144 


SECTION  IV, 

HOMESTEAD    ESTATES. 

Section  120.  History  and  origin. 

121.  Nature  of  the  estate. 

122.  Who  may  claim  homestead. 

123.  What  may  be  claimed. 

124.  Proceedings  for  allotment. 

125.  Exemption  from  debt.  ^ 

126.  How  homestead  may  be  lost  —  By  alienation. 

127.  Continued  —  By  abandonment. 

§  120.  History  and  origin. —  These  estates  are  not  of  com- 
mon-law origin.  They  are  purely  statutory  and  have  been 
in  existence  only  within  the  last  thirty  years.  The  object 
of  their  creation  is  to  provide  for  the  family  a  homestead, 
which  shall  be  exempt  from  a  levy  under  execution  for  the 
debts  of  the  owner,  and  save  the  community  from  the  neces- 
sity of  supporting  such  persons.  The  exemption  rests  only 
on  public  policy,  and  is  not  given  through  any  sympathy 
for  the  debtor.  As  these  estates  are  created  by  statute,  and 
each  statute  varies  in  its  details,  it  is  impossible  to  do  more 
than  present  in  a  general  outline  the  ordinary  and  usual 
characteristics  of  such  estates.  At  present  they  prevail  in 
almost  all  of  the  States  of  this  country.*^ 

§  121.  Nature  of  the  estate. —  As  a  general  proposition, 
though  varying  .somewhat  in  the  different  States,  the  estate 

••7  See  Thompson,  Homesteads  &  Exempt.  Chap.  I.  The  homestead 
estate  is  not  necessarily  an  estate  arising  out  of  the  marital  relation,  as 
unmarried  persons,  if  the  head  of  a  family,  are  given  the  right  of  the 
homestead,  exempt  from  liability  for  debts,  but  it  is  more  frequently 
enjoyed  by  the  husband  or  wife,  than  otherwise,  and  hence  is  usually 
treated  as  an  estate  growing  out  of  the  marital  relation.  Tiffany,  Re.'^l 
Prop.  Sec.  213,  p.  503;  Arnold  r.  Waltz,  53  Iowa  70«. 

l'>  145 


§    121  HOMESTEAD   ESTATES.  [PART   I. 

is  one  for  the  life  or  lives  of  those  who  may  claim  it,  and  in 
most  cases  the  ordinary  incidents  of  life  estates  would  at- 
tach to  it.**  The  most  general  provision  is  that  it  shall  be 
for  the  life  of  the  husband,  to  the  surviving  widow  for  life 
or  during  widowhood,  and  to  the  children  during  minority.** 
Unmarried  daughters,  and  dependent  daughters  in  general 
are  sometimes  included  in  the  beneficence  of  the  homestead 
law.*"  The  children  and  widow  are  jointly  entitled  to  only 
one  homestead.  Each  cannot  claim  a  separate  homestead.^'^ 
And  when  the  widow  claims  it,  it  is  generally  granted  to  her 
in  addition  to  her  dower  right.  One  is  not  affected  by  the 
other.'-     Where  there  is  no  widow  the  estate  becomes  liable 

<8  See  Kerley  v.  Kerley,  13  Allen  287 ;  Abbott  v.  Abbott,  97  Mass. 
136;  Black  v.  Curran,  14  Wall.  403;  McDonald  v.  Crandall,  43  111.  232; 
Smith  V.  Estell,  34  Miss.  527;  Locke  v.  Rowell,  47  N.  H.  49;  Tieman  v. 
Tieman,  34  Texas  525;  Howe  v.  Adams,  28  Vt.  544;  Jewett  V.  Brock, 
32  Vt.  65;  Thompson  on  Homcst.,  Sec.  540.  Mr.  Tiffany  objects  to  the 
term  "  estate,"  being  applied  to  the  interest  of  the  homesteader  (Tiffany, 
Feal  Prop.  Sec.  114,  p.  506;  Sec.  499,  p.  1121),  but  this  distinction  is 
more  technical  than  practical,  for  in  many  States,  the  interest  is  ju- 
dicially held  to  be  "  an  estate  in  land."  This  is  true  in  Illinois. 
Roberson  v.  Tippie,  209  111.  38,  70  N.  E.  Rep.  584;  Alabama,  Bailey  V. 
Mercantile  Co.,  138  Ala.  415,  35  So.  Rep.  451;  Washington,  Whitworth 
V.  McKee,  32  Wash.  83,  72  Pac.  Rep.  1046;  and  New  Hampshire,  Libbey 
V.  Davis,  68  N.  H.  355.  An  "  estate  "  in  real  property  is  generally  de- 
fined as  "  the  nature  or  extent  of  one's  interest  in  land  "  and  certainly 
a  homestead  right,  which  is  exclusive  of  all  other  interests  for  life,  is 
an  "  estate  "  in  the  homesteader,  within  the  legal  meaning  of  the  term. 
Helm  V.  Kaddatz,  107  111.  App.  413. 

40  Levins  v.  Rovegno,  71  Cal.  273;  In  re  Gilmore's  Est.,  81  Cal.  240. 

50  Childers  v.  Henderson,  76  Tex.  664. 

51  Carolina  Nat.  Bk.  v.  Senn,  25  S.  C.  572 ;  Meyer's  Guardian  t". 
Meyer's  Adm'r  (Ky.),  12  S.  W.  Rep.  933. 

62  Chaplin  v.  Sawyer,  35  Vt.  290;  Mercier  v.  Chase,  11  Allen  194; 
Bates  V.  Bates,  97  Mass.  392;  Chisholm  v.  Chisholm,  41  Ala.  327; 
Merriman  v.  Lacefield,  4  Heisk.  222;  Walsh  v.  Reis,  50  111.  477;  Bresee 
V.  Stiles,  22  Wis.  120;  Lee  v.  Campbell  (Ky.),  1  S.  W.  Rep.  875;  Hay- 
den  V.  Robinson,  83  Ky.  615.  Contra,  McAfee  v.  Bettis,  72  N.  C.  29; 
Singleton  v.  Huff,  49  Ga.  584;  Butterfield  V.  Wicks,  44  Iowa  310;  David- 
son V.  Davis,  85  Mo.  440;  Bryan  v.  Rhoades,  96  Mo.  485.  See  Thompson 
on  Homest.,  Sees,  555-566.  The  fact  that  the  homestead  had  been  set 
146 


CH.    VII.]  HOMESTEAD   ESTATES.  §    122 

for  debts  when  the  children  reach  their  majority.''^  The  home- 
stead claim  only  exempts  the  property  from  direct  liability 
for  debts  during  the  life  or  minority  of  the  parties  foi* 
whose  benefits  the  homestead  is  instituted.  The  reversionary 
estate  is  still  liable  for  the  debts  of  the  head  of  the  family,  and 
a  judgment  creditor,  by  virtue  of  his  lien,  has  so  far  a  vested 
interest  in  the  land,  subject  to  the  homestead  exemptiori,- 
as  to  be  able  to  enjoin  the  party  in  possession  under  the 
homestead  claim  from  committing  waste.  The  homestead 
claimant  has  against  his  judgment  creditors  only  the  rights 
of  a  tenant  for  life  or  for  years.^*  The  right  of  the  widow 
and  minor  children  to  claim  the  homestead,  after  the  death 
of  the  husband  and  father,  and  the  nature  of  their  right, 
are  determined  by  the  law  in  force  at  the  time  when  the 
property  devolves  upon  them,  i.  e.,  at  the  death  of  such  hus- 
band and  father."' 

ft 

§  122.  Who  may  claim  homestead. —  It  is  generally  pro- 
vided that  any  one  who  can  be  in  any  sense  denominated 
the  "head  of  the  family,"  may  claim  the  homestead  for  their 
benefit.  Thus,  the  right  may  be  claimed  by  the  husband, 
and,  after  his  death,  by  the  wife,  who  generally  has  the 
right  to  claim  it  for  herself,  though  she  may  have  no  chil- 
dren.'**'    It  has  been  held  that  the  wife,  during  the  husband ^s 

out  during  the  life  of  the  first  wife,  does  not  prevent  the  second  wife 
from  claiming  such  homestead  upon  the  death  of  the  husband.  Xa- 
tional  Bank  v.  Shelton,  3  Pickle  .39.3;  Nelson  v.  Commercial  Bank.  80 
Ga.  .328;   Potter  v.  Clapp,  203  111.  ."192.  68  N.  E.  Rep.  81. 

ssQuinn  V.  Kinyon,  100  Mo.  .5.51;  Childers  v.  Henderson,  76  Tex.  664; 
Zwernean  f.  Von  Rosenburg,  76  Tex.  522;   McAndrew  v.  Hollingaworth«; 
(Ark.  1904),  81  S.  W.  Rep.  610;  Bond  r.  Montgomery,  .56  Ark.  56.3.  20. 
S.  W.  Rep.  .525;  Simpson  v.  Scraggins,  182  Mo.  .560,  81  So.  Rep.   1129.. 

54  Jones  V.  Britton,  102  N.  C.  166.  The  sale  of  a  homestead,  for  debt,, 
will  generally  vest  in  the  purchaser,  the  title,  after  the  termination,  of 
the  homestead.     Butler  r.  Brown,  205  111.  606,  09  N.  E.  Rep.  44. 

»»Tyrell  v.  Baldwin.  78  Cal.  470. 

5«  Nicholas  v.  Parezell,  21  Iowa  265;  Stilloway  v.  Brown,  12  Allen 
34;  McKenzie  v.  Murphy,  24  Ark.  155;  Morrison  v.  McDaniel,  30  Miss. 
217;   Griffin  v.  Sutherland,   14  Barb.  458;   Barney  v.  Leeds,  51   N.  H. 

147 


§    122  HOMESTEAD   ESTATES.  [PART   I. 

life,  has  the  right  to  claim  exemption  from  her  own  debts.*^ 
An  unmarried  person  may  also  claim  it,  if  he  has  living  with 
him  unmarried  sisters  and  others  who  are  dependent  upon 
him.*^*  The  tests  which  are  generally  applied  to  doubtful  cases, 
are:  1.  Whether  there  is  a  legal  or  moral  duty  to  support  the 
pei-sons  who  are  claimed  to  constitute  the  family;  and, 
2.  Whether  such  persons  are  actually  dependent  upon  him.'"' 
The  cases  just  cited  were,  where  an  unmarried  man  had  indi- 
gent sisters  living  with  him,  who  were  dependent  upon  him  for 
support.  In  the  same  manner  an  unmarried  woman,  support- 
ing the  children  of  a  deceased  sister  or  an  invalid  sister,  is 
under  the  homestead  laws  the  head  of  a  family.***     So  also  the 

2()6;  Homestead  Cases,  31  Texas  G80;  Miller  v.  Finegan  (Fla.),  7  So. 
Rep.  140;  Armstrong's  Estate,  In  re,  80  Cal.  71;  Fountain  f.  Hendley, 
82  Ga.  616. 

57  Morton  v.  Bradhern,  21  S.  C.  375.  See,  also,  to  same  effect,  Belden 
r.  Younger,  76  Iowa,  567;  Hill  v.  Meyers  (Ohio),  19  N.  E.  Rep.  593; 
Kruger  v.  LeBlanc,  75  Mich.  424. 

58  Marsh  v.  Lozenby,  41  Ga.  154;  Graham  v.  Crockett,  18  Ind.  119; 
VVhaley  r.  Cadman,  11  Iowa  226;  Homestead  Cases,  31  Texas,  678. 
A  surviving  wife,  who  resided  alone  in  the  residence  of  her  deceased 
husband,  is  held  entitled  to  hold  such  residence  as  her  homestead,  in 
Kansas.  Aultman,  Miller  &  Co.  V.  Price,  75  Pac.  Rep.  1019.  The 
sole  surviving  head  of  a  family  is  held  entitled  to  a  homestead 
in  Arkansas,  if  he  continues  to  reside  thereon.  Baldwin  v.  Thomas 
(1903),  72  S.  W.  Rep.  53.  Also,  in  Kentucky,  Holburn  r.  Pfanmillers, 
Adnir.,  71  S.  W.  Rep.  940.  But  not  in  Florida.  Herrin  r.  Brown,  33 
So.  Rep.  522.  A  dependent  grandchild  is  a  sufficient  family  to  en- 
title a  householder  to  a  homestead.  Ragsdale  &  Co.  r.  Watkins  (Ky. 
1003),  76  S.  W.  Rep.  45;  Cross  V.  Benson  (Kan.  1904),  75  Pac. 
Rep.  .558.  See  also  Baldwin  r.  Thompson  (Ark.  1903),  72  S.  W. 
Rep.  53;  Amer.  Nat.  Bank  v.  Cruger  (Tex.  1902),  71  S.  W.  Rep.  784. 
A  minor  nephew,  in  Illinois,  whom  a  householder  has  agreed  to  sup- 
port and  is  supporting,  is  such  a  person,  dependent  for  support,  upon 
the  householder,  as  to  entitle  him  to  a  homestead.  Stodgell  v.  Jackson, 
111  111.  App.  256. 

59  Whaley  v.  Cadman,  11  Iowa,  226;  Blackwell  v.  Broughton,  50  Ga. 
390;  Connaughton  v.  Sands,  32  Wis.  387;  Wade  V.  Jones,  20  Mo.  75. 

80  Arnold  i'.  Waltz,  53  Iowa,  706 ;  36  Am.  Rep.  248 ;  Chamberlain  v. 
Brown  (S.  C),  11  S.  E.  Rep.  952;  Moyer  v.  Drummond  (S.  C),  10 
S.  E.  Rep.  952. 

14a 


CH.    VII.]  HOMESTEAD   ESTATES.  §    123 

guardian  of  a  minor.''^  But  an  unmarried  man,  having  his 
brother  and  brother's  wife  living  with  him,  is  not  the  "head 
of  a  family. ' '  ®^  And  likewise  an  unmarried  man,  having  no 
dependent  relatives,  keeping  house  alone  with  his  servants 
and  farm  hands,  or  with  children  who  are  not  dependent 
upon  him,  does  not  constitute  the  "head  of  the  family."^' 
But  the  father  living  with  an  adult  son  after  the  death  of 
the  wife,  can  claim  homestead.**  And  so,  also,  a  husband 
living  alone,  after  divorce  from  his  wife,  although  the  cus- 
tody of  the  children  had  not  been  awarded  him.®''  But  not 
a  widower  without  dependents.®*  In  making  the  declaration 
of  homestead,  it  is  not  necessary  for  the  declarant  to  show 
on  what  grounds  he  claims  to  be  the  head  of  a  family.  It 
suffices,  until  it  is  disputed,  for  him  to  allege  that  he  is  the 
head  of  a  family.*^  In  some  of  the  States,  homestead  is 
denied  to  one  who  carries  on  an  illegal  business,  such  as 
gambling.** 

§  123.  What  may  be  claimed. —  A  homestead,  as  defined  by 
the  courts,  is  the  place  where  one  dwells.  It  is  his  residence. 
And  the  same  rules  and  principles  apply  to  the  homestead, 
which  govern  the  determination  of  what  is  one's  domicile.*' 

81  Roundtree  v.  Dennard,  59  Ga.  629;  27  Am.  Rep.  235. 

62  Whalen  v.  Cadman,   11    Iowa,  226. 

«s  Calhoun  v.  Williams,  32  Gratt.  18;  34  Am.  Rep.  759;  Garaty  v.  Du- 
boee,  5  S.  C.  498;  Calhoun  r.  McLendon,  42  Ga.  406;  Bosquett  t?.  Hall 
(Ky.),  13  S.  W.  Rep.  244. 

«*  Rollings  t'.  Evans,  23  S.  C.  316. 

«5  Zapp  V.  Strohmeyer,  75  Tex.  638. 

«« Ellis  V.  Davis   (Ky.),  14  S.  W.  Rep.  74. 

87  Jones  V.  Waddy,  66  Cal.  457.  In  Washington,  California  and 
Idaho,  a  declaration  of  homestead  must  be  filed  and  recorded,  during 
the  life  of  the  householder  and  if  not  done,  the  property  vests  in  hia 
heirs.  Lloyd  v.  Lloyd  (Wash.  1904),  74  Pac.  Rep.  1061;  Harris  v. 
Duarte  (Cal.  1904),  75  Pac.  Rep.  58;  Mellen  v.  McMannis  (Idaho 
1904),  75  Pac.  Rep.  98. 

88  Tillman  r.  Brown,  64  Tex.  181.  But  see  contra,  Prince  v.  Hake,  75 
Wis.  638. 

89  Davis  tJ.  Andrews,  30  Vt.  678;  Austin  v.  Stanley,  46  N.  H.  51; 
Barney  v.  Leeds,  51  N.  H.  265;  Rogers  v.  Ragland,  42  Texas,  443. 

149 


§    123  HOMESTEAD   ESTATES.  [PAKT   I. 

It  is  manifest,  therefore,  that,  while  one  may  have  two  or 
more  residences,  he  can  have  but  one  homestead,  and  that 
one  must  be  wherever  his  legal  domicile  isJ°  In  order  that 
the  homestead  right  may  be  claimed  in  a  lot  or  parcel  of 
land,  it  must  be  shown  to  be  the  bona  fide  residence  of  him 
and  his  family.  An  intention  to  make  it  such  will  give  no 
right."  The  party  claiming  homestead  must  also  be  in  pos- 
session of  the  land  in  his  own  right.  Thus  a  remainderman, 
living  with  the  tenant  for  life,  cannot  by  virtue  of  such  a 
possession .  claim  the  right  of  homestead."  But  the  use  of  a 
part  of  the  premises  for  business  or  renting  purposes  will  not 
prevent  the  homestead  right  from  attaching."     So,  also,  it 

70  Cornish  v.  Frees,  75  Wis.  490;  Little  v.  Baker  (Tex.),  11  S.  W, 
Rep.  549. 

-1  Elston  V.  Robinson,  23  Iowa,  208;  Lee  v.  Miller,  11  Allen,  38; 
Norris  v.  Moulton,  34  N.  H.  394;  Smith  v.  Wells,  46  Miss.  71;  Cook  V. 
McChristian,  4  Cal.  24;  Prescott  v.  Preseott,  45  Cal.  58;  Tousville  V. 
Pierson,  39  111.  453;  Kitchell  v.  Burgwin,  21  111.  40;  Christy  v.  Dyer,  14 
Iowa,  440;  Currier  V.  Woodward,  02  N.  H.  63;  Lake  v.  Nolan  (Mich.), 
45  N,  W.  Rep.  376;  Steenburger  v.  Greenwood  (Ark.),  13  S.  W.  Rep. 
702;  In  re  Crowley,  71  Cal.  300;  Gerrish  v.  Hill  (N.  H.),  19  Atl.  Rep. 
1001 ;  First  Nat.  Bank  v.  Hillinsworth,  78  Iowa,  575.  An  intent  to 
reside  on  the  property,  as  a  homestead,  is  never  sufficient.  It  requires 
actual  occupancy.  White  v.  Danforth  ( Iowa,  1904 ) ,  98  N.  W.  Rep. 
136;  Higgins  v.  Higgins  (Ky.  1904),  78  S.  W.  Rep.  1124;  Zollinger  V. 
Dunaway  (Mo.  1904),  78  S.  W.  Rep.  666.  But  where  homestead  is 
actually  occupied  by  a  widow,  it  is  immaterial  that  she  had,  in  her 
own  right,  property  better  fitted  for  her  homestead.  Wilmoth  V.  Gos- 
sett,  71  Ark.  594;  76  S.  W.  Rep.  1073;  Sansberry  v.  Sims,  79  Ky,  527; 
Ex  parte  Brown,  37  S.  C.  181;   15  S.  E.  Rep.  926. 

72  Cornish  v.  Frees,  74  Wis.  490.  See  to  same  eflfect,  Meigs  v.  Dibble, 
73  Mich.  101. 

73Hogan  V.  Manners,  23  Kan.  551;  33  Am.  Law  Rep.  199;  Smith  v. 
Quiggans,  65  Iowa,  637;  Lubbock  v.  McMann,  82  Cal.  226;  Parr  V. 
Newby,  73  Tex.  468;  Jacoby  v.  Parkland  Distilling  Co.,  41  Minn.  227; 
see  Allen,  In  re,  78  Cal.  293.  But  see  Rhodes  v.  McCormick,  4  Iowa, 
368;  Kurz  v.  Brusch,  13  Iowa,  371.  The  fact  that  part  of  the  home- 
stead is  rented,  where  the  house  is  in  two  apartments,  does  not  deprive 
the  homesteader  of  his  rights,  in  Missouri.  Adams  v.  Adams,  183  Mo. 
396;  82  S.  W.  Rep.  60.  See,  also,  Pratt  v.  Pratt,  161  Mass.  276;  37 
N.  E.  Rep.  435 ;  Layson  V.  Grange,  48  Kansas  440,  29  Pac.  Rep.  585. 
150 


CH.    VII.]  HOMESTEAD   ESTATES.  §    123 

has  been  held  that  homestead  cannot  be  claimed  jointly  with 
another."*  For  the  same  reason,  a  partner  cannot  claim 
homestead  in  partnership  property.^^  But  if  a  joint  es- 
tate is  subsequently  partitioned,  so  as  to  enable  an  actual 
and  exclusive  occupation  of  one's  divide  interest,  the  home- 
stead will  attach  from  the  declaration  of  an  intention  to 
claim  homestead.^^ 

Lands  and  houses  rented  out  cannot  as  a  general  rule  be 
claimed  as  homestead.''"  But  it  has  been  held  that  the  claim 
of  homestead  may  be  made,  notwithstanding  the  claimant 
lives  on  another  tract  of  land,  which  he  rents  because  there 
is  no  house  on  the  land  which  he  owns.  The  land  he  owns 
will  be  treated  under  these  circumstances  to  be  a  part  of 
the  rented  land  on  which  he  resides.  The  absence  of  a 
house  on  the  land  which  he  owns  makes  it  impossible  for 
him  to  reside  there.''*  But  where  the  party  owns  both  tracts 
of  land  he  cannot  claim  homestead  in  the  tract  on  which  he 
does  not  reside."  Nor  can  the  claim  be  made  to  property 
worth  more  than  the  sum  laid  down  by  the  statute  of  the 
State.     "When  the  debtor  wishes  to  claim  the  homestead,  it 

'♦Cornish  V.  Frees,  74  Wis.  490.  But  see  contra,  O'Brien  v.  Krenz, 
36  Minn.  136;  Ward  V.  Huhn,  16  Minn.  159;  Oswald  V.  McCuley 
(Dak.),  42  N.  W.  Rep.  769. 

T5  Drake  l'.  Moore,  66  Iowa,  58. 

76  Miller  f.  Bennett   (Ky.),  12  S.  W.  Rep.  194. 

77  Folsom  V.  Carli,  5  Minn.  337;  Kelly  v.  Baker,  10  Minn.  154;  Ash- 
ton  f.  Ingle,  20  Kan.  670;  27  Am.  Law  Rep.  197. 

78  Rogers  V.  Ashland  Sav.  Bank,  63  N.  H.  428;  Mills  v.  Hobbs,  76 
Mich.  122. 

79  Semmes  v.  Wheatley  (Miss.),  7  So.  Rep.  430;  Rhyne  v.  Guevara, 
6  So.  736;  Pfeiflfer  v.  McNatt,  74  Tex.  640;  Vanmeter  v.  Vanmeter'a 
Assignee  (Ky.),  13  S.  W.  Rep.  924;  Beard  V.  Johnson,  87  Ala.  729; 
Armstrong's  Estate,  In  re,  80  Cal.  71.  The  vendee  in  an  executory 
contract  foi'  the  sale  of  land,  is  held  entitled  to  his  homestead  in  the 
property,  in  Minnesota.  Hook  v.  N.  VV.  Thresher  Co.  (Minn.  1904),  98 
N.  VV.  Rep.  463.  A  homestead  may  be  claimed  in  leased  lands.  White 
V.  Danforth  (Iowa,  1904),  98  N.  W.  Rep.  136;  Bailey  v.  Dunlap  Co., 
138  Ala.  415;  .35  So.  Rep.  451.  But  see,  as  to  "cropper,"  in  Texas, 
Webb  V.  Garrett,  70  S.  VV.  Rep.  992. 

151 


§    123  HOMESTEAD   ESTATES.  [PART   I. 

is  necessary  that  it  should  in  some  way  be  ascertained  and 
set  out.  But  the  homestead  is  exempt  from  levy,  although 
it  is  not  actually  set  out.®°  The  occupation,  or  declaration 
to  claim  as  homestead,  must  be  made  before  the  property 
has  been  attached.^^  Minute  details  in  regard  to  this  mat- 
ter are  in  some  States  prescribed  by  the  statutes.*'  But  the 
general  rule  is  that  the  debtor  must  select  the  land  which  he 
desires  for  a  homestead,  keeping  within  the  limit  as  to  value. 
The  value  of  the  homestead  is  determined  by  the  consider- 
ation of  the  estate  which  is  owned  by  the  claimant,  whether 
it  be  a  life  estate  or  a  fee:  that  is,  its  whole  market  value 
is  the  guide,  and  not  the  market  value  of  the  life  estate.'* 
If  the  value  of  the  property  exceeds  the  limit,  it  may  be  par- 
titioned and  set  out  by  appraisers  at  the  instance  of  creditors  y 
and  if  it  is  not  divisible,  the  property  may  be  sold,  and  the 
sum  allowed  by  statute  will  be  set  apart,  and  in  most  cases 
invested  by  the  court  in  a  homestead;  while  the  remainder 
of  the  purchase-money  will  be  devoted  to  the  liquidation  of 
the  debts.**  If  the  homestead  should  increase  in  value,  after 
being  set  out,  the  creditors  cannot  make  any  claim  for  a  new 
assignment  of  the  homestead  within  the  statutory  limit  as 
to  value." 


80  King  V.  McCarley  (S.  C),  10  S.  E.  Rep.  1075;  Swandale  v.  Swan- 
dale,  25  S.  C.  389;  Bridwell  v.  Bridwell,  76  Ga.  627;  Little  v.  Baker 
(Tex.),  11  S.  W.  Rep.  549;  Riggs  V.  Sterling,  60  Mich.  643.  See  Mc- 
Loy  V.  Arnett,  47  Ark.  445. 

81  Reynolds  r.  Tenant,  51  Ark.  84. 

82  See  Thompson  on  Homest.  Sees.  230,  236.  In  many  of  the  States, 
the  homestead  right  only  attaches  after  the  filing  and  recording  of 
the  deed  thereto  and  as  to  debts  previously  existing,  the  property  is 
liable  to  attachment  or  execution  levy  and  sale.  Loring  v.  Groomer, 
142  Mo.  1,  43  S.  W.  Rep.  647. 

83  Yates  r.  McKibben,  66  Iowa  357;  Squire  v.  Mudgeth,  63  N.  H.  428; 
Brown  r.  Starr,  79  Cal.  608. 

84  1  Washburn  on  Real  Prop.  366,  380 ;  Thompson  on  Homest.,  Sees. 
230,  236. 

85 /n    re    Walkerley's    Estate,    81    Cal.    5/0;    Turner's    Guardian    v.. 
Turner's  Heirs  &  Creditors  (Ky.),  13  S.  W.  Rep.  6;  McLane  v.  Paschal.. 
152 


CH,    Vn.]  HOMESTEAD   ESTATES.  §   124 

§  124.  Proceedings  for  allotment. —  The  manner  of  allotting 
the  homestead  estate,  to  one  entitled  thereto,  differs  in  the 
different  States.  In  some  a  claim  or  declaration  being  made 
in  the  court  where  the  homestead  is  recorded,^"  while  in 
others,  the  probate  or  county  courts,  according  to  the  juris- 
diction of  the  particular  court,  under  the  statutory  pro- 
ceedings governing  the  subject,  have  power  to  set  off  the 
homestead,  on  the  death  of  the  householder.^^  Generally, 
any  court,  having  common  law  jurisdiction,  would  have 
power  to  recognize  the  claim  of  exemption,  by  a  homesteader 
and  to  entertain  a  suit  to  set  off  the  homestead  **  and  where 
creditors  attempted  to  force  a  sale  of  property  rightfully 
claimed  as  a  homestead,  by  the  head  of  a  family,  a  court  of 
equity  would  entertain  a  bill  for  an  injunction,  to  restrain 
a  sale  thereof.®^  The  burden  of  proof  is  generally  held  to  be 
on  the  party  claiming  the  homestead  to  show  that  the  land 
claimed  as  such  was  susceptible  of  being  made  the  basis  of 
the  claim,  that  it  was  actually  used  as  a  homestead  and  that 
the  tract  claimed  did  not  exceed  in  value  the  amount  subject 
to  the  claim.®"    And  where  the  evidence  upon  the  different 

74  Tex.  20;  Mills  V.  Hobbs,  76  Mich.  122;  Fowler's  Estate  (Cal),  20 
Pac.  Rep.  81. 

86  Otto  17.  Long,  144  Cal.  144;  77  Pac.  Rep.  885,  The  order  setting 
apart  the  homestead  cannot  be  collaterally  assailed.  Otto  v.  Long, 
supra.  But  see,  where  court  is  without  jurisdiction.  Williams  v. 
Whitaker,  110  N.  C.  393;  14  S.  E.  Rep.  924;  Watts  v.  Miller,  76  Tex.  13. 

8T  County  Court  has  jurisdiction,  in  Nebraska.  Tyson  r.  Tyson,  98 
N.  W.  Rep.  1076.  Where  heirs  of  the  deceased  husband  are  in  adverse 
possession,  the  probate  court  has  no  authority  to  entertain  a  suit  by 
the  widow  to  set  off  the  homestead,  in^  Arkansas.  James  v.  James, 
80  S.  \y.  Rep.  148.  By  statute,  in  Texas,  the  homestead  cannot  be 
partitioned,  during  the  life  of  the  homesteader.  Flynn  r.  Hancock,  80 
S.  W.  Rep.  245. 

88Atlee  r.  Bullard,  123  Iowa,  274,  98  N,  W.  Rep.  889;  Simpson  v. 
Scroggins,  182  Mo.  560,  81  S.  W,  Rep.  1129. 

8»  Cooper  Grocery  Co.  v.  Peter  (Tex.  1904),  80  S.  W.  Rep.  108; 
Harris  v.  Mathews,  81  S.  W.  Rep.  1198. 

00  Harris  v.  Mathews,  SIS.  W.  Rep.  1198.     By  statute,  in  Alabama, 

153 


§    125  HOMESTEAD   ESTATES.  [PART   I. 

issues  are  disputed  it  is  held  to  be  a  question  of  fact  for 
the  jury  to  determine,  whether  the  land  was  the  proper  sub- 
ject of  the  homestead  claim  and  if  it  was  actually  used  as  a 
homestead  by  the  claimant  or  if  it  had  been  abandoned 
prior  to  the  claim  thereto.*^ 

§  125.  Exemption  from  debt. —  The  exemption  of  the  home- 
stead from  liability  for  the  debts  of  the  owner  is  various  in 
its  extent,  sometimes  absolute,  referring  to  all  classes  of 
debts,  and  sometimes  more  or  less  limited  to  particular 
obligations,  depending  altogether  upon  the  special  provisions 
of  each  statute.  But,  perhaps  the  most  general  rule  is,  ex- 
emption from  liability  for  all  debts,  except  taxes,  and  such 
debts  which  create  a  lien  upon  the  premises,  such  as  for  the 
purchase  money,  or  judgment  debts,  where  such  judgment 
has  been  obtained  prior  to  the  attachment  of  the  home- 
stead."- In  this  connection  it  may  be  stated  that  the  home- 
stead can,  under  no  circumstances,  be  claimed  against  debts 
contracted  prior  to  the  passage  of  the  homestead  and  ex- 
emption laws."^  But  a  judgment  obtained  before  the  pur- 
chase of  the  property,  or  before  actual  occupation,  will  not 
attach  to  the  property  when  bought  or  occupied,  to  the  ex- 

the  burden  is  on  the  creditor.  Bailey  V,  Dunlop  Co.,  138  Ala.  415,  35 
So.  Rep.  451. 

91  Mathewson  r.  Kilburn,  183  Mo.  110,  81  S.  W.  Rep.  1096;  Mac- 
avenny  v.  Ralph,   107   111.  App.  542. 

!'2  See  Thompson  on  Homest.,  Sees.  290-388;  Withers  V.  Jenkins,  21 
S.  C.  365;  Lowdermilk  v.  Corpening,  92  N.  C.  333;  Finnegan  v.  Prinde- 
ville,  83  Mo.  517;  King  v.  Goetz,  70  Cal.  236;  Halcomb  v.  Hood   (Ky.), 

I  S.  W.  Rep.  401;  Hendrix  ^.  Seaborn,  25  S.  C.  481;  Burnside  v.  Wat- 
kins  (S.  C),  10  S.  E.  Rep.  960;  McWatty  v.  Jefferson  Co.,  76  Ga.  352; 
Meader  r.  Meader    (Ky.),  10  S.  W.  Rep.  651;  Greer  v.  Oldham    (Ky.), 

II  S.  W.  Rep.  73;  Cornish  v.  Frees,  74  Wis.  490;  Bell  v.  Wise  (Ky.), 
11  S.  W.  Rep.  717;  Smith  v.  Richards  (Idaho),  21  Pac.  Rep.  419. 

93  Homestead  Cases,  22  Gratt.  266,  12  Am.  Rep.  507;  Garrett  V. 
Cheshire,  69  N.  C.  396;  12  Am.  Rep.  647;  Gunn  v.  Barry,  15  Wall.  610: 
Lowdermilk  v.  Corpening,  92  N.  C.  333;  Wright  v.  Straub,  64  Tex.  64; 
Cohn  f.  Hoffman,  45  Ark.  376;  Long  v.  Walker,  106  N.  C.  90;  Shaffer 
V.  Hahn,  105  N.  C.  121. 
154 


CIl.    VII.  J  HOMESTEAD   ESTATES.  §    126 

elusion  of  the  homestead  right,  where  the  purchase  was  made 
for  the  expressed  purpose  of  securing  a  homestead.^*  And 
the  homestead  claim  is  held  to  have  precedence  over  a  debt 
contracted  for  the  purpose  of  borrowing  money  which  was 
expended  in  the  purchase  of  the  homestead.^^  So,  also,  if 
the  debts  were  contracted  before  marriage,  but  they  did  not 
constitute  liens  upon  the  land,  the  homestead  right  would 
attach  and  take  precedence  to  the  claims  of  such  creditors.®" 
In  some  of  the  States  it  is  expressly  provided  by  statute  that 
debts  contracted  in  making  improvements  on  the  homestead 
shall  have  precedence  over  the  homestead  claim."^ 

§  126.  How  homestead  may  be  lost  —  By  alienation. —  The 
attachment  of  the  homestead  right  does  not  take  away  al- 

9*  Gardner  v.  Douglass,  64  Tex.  76;  Cogwell  v.  Warrington,  66  Iowa, 
666;  Van  Ratcliflf  V.  Call,  72  Tex.  491;  Neumaier  v.  Vincent,  41  Minn. 
481. 

95  Hale  V.  Richards  (Iowa),  45  N.  W.  Rep.  734.  See,  also,  contra, 
Roy  V.  Clark,  75  Tex.  28;  McWilliams  V.  Bones,  84  Ga.  203.  A  home- 
stead is  generally  liable  for  debts  existing  before  its  acquisition.  Fer- 
guson V.  Waller  &  Co.  (Tex.  1903),  76  S.  W.  Rep.  609;  Emrich  v. 
Gilbert  Co.,  138  Ala.  316;  35  So.  Rep.  322;  Edinger  v.  Bain  (Iowa, 
1904),  98  N.  W.  Rep.  568;  Roark  v.  Bach  (Ky.  1903),  76  S.  W.  Rep. 
340;  Walker  V.  Walker,  117  Iowa,  609;  91  N.  W.  Rep.  908.  On  death 
of  the  widow  and  majority  of  the  debtor's  children,  the  homestead 
generally  is  held  an  asset  of  his  estate.  McAndrew  V.  HoUingsworth 
(Ark.  1904),  81  S.  W.  Rep.  610;  Winters  v.  Davis,  51  Ark.  335,  11 
S.  W.  Rep.  420;  Simpson  v.  Scroggins,  182  Mo.  560;  81  S.  W.  Rep. 
1129;  Phillipps  V.  Pressen,  172  Mo.  24;  72  S.  W.  Rep.  501.  In  most 
of  the  States,  obligations  for  the  repair  or  betterment  of  the  home- 
stead, are  valid  charges  against  it.  Butler  v.  Brown,  205  111.  606,  69 
N.  E.  Rep.  44.  The  proceeds  of  the  sale  of  a  homestead  are  generally 
exempt,  the  same  as  the  homestead.  Lee  &  Hester  v.  Hughes  (Ky. 
1903),  77  S.  W.  Rep.  386;  Canney  v.  Canney  (Mich.  1902),  91  N.  W. 
Rep.  620.  And  so,  generally,  is  property  purchased  with  proceeds. 
Slattery  V.  Keefe,  201  111.  483;  66  N.  E.  Rep.  365;  Richards  v.  Orr 
(Iowa  1902),  92  N.  W.  Rep.  655. 

»«  Dye  V.  Cook,  88  Tenn.  275 ;  King  v.  Goetz,  70  Cal.  236. 

81^  All  V.  Goodson  (S.  C),  21  S.  E.  Rep.  703;  McWilliams  v.  Bones, 
84  Ga.  203;  Richards  r.  Shears,  70  Cal.  187.  An  ungathered  crop  on 
the  homestead  of  the  debtor  is  exempt  from  sale  for  his  debts.  Parker 
r.  Hale   (Tex.  1903),  78  S.  W.  Rep.  655. 

155 


§    126  HOMESTEAD   ESTATES.  [PART   I. 

together  the  power  of  alienation.  It  is  the  subject  of  sale, 
mortgage,  and  release,  as  if  no  homestead  right  had  existed. 
But  for  the  complete  conveyance  of  the  title  and  effectual 
barring  of  the  homestead  right,  it  is  generally  necessary  that 
the  wife  should  join  in  the  deed  of  conveyance.®^  And  if  a 
conveyance  or  mortgage  is  invalid,  because  there  has  not  been 
a  proper  release  of  the  homestead  right,  a  subsequent  aban- 
donment of  the  homestead  will  not  cure  the  defect."®  In 
some  States  the  mortgage  of  the  homestead  is  prohibited  al- 
together.^ However,  if  the  homestead  is  also  limited  to  the 
minor  children  during  their  minority,  a  conveyance  by  the 
widow  would  not  bar  the  children's  claim  of  homestead,  and 
they  can,  on  the  death  of  the  mother,  during  their  minority, 

98  Poole  V.  Gerrard,  6  Cal.  71;  Bearing  v.  Thomas,  25  Cal.  224;  Burn- 
side  r.  Terry,  45  Ga.  629;  Greenough  v.  Turney,  11  Gray,  334;  Morris 
r.  Moulton,  34  N.  H.  394;  Re  Cross,  2  Dill.  320;  Sears  v.  Hanks,  14 
Ohio  St.  298;  Crim  V.  Nelms,  78  Ala.  604;  Rhea  V.  Rhea,  15  Lea,  527; 
Riecke  v.  Westenhoff,  85  Mo.  642;  Schermerhorn  v.  MahaflSe,  35  Kan. 
108;  Aultman  &  Taylor  Co.  v.  Jenkins,  19  Neb.  209;  Chopin  v.  Runte, 
75  Wis.  361;  Louisville  Bkg.  Co.  v.  Leonard  (Ky),  13  S.  W.  Rep.  521; 
Grimes  v.  Portman,  99  Mo.  229;  Peck  v.  Ormsby,  55  Hun,  265;  Hall  v. 
Loomis,  63  Mich.  709;  Bunting  v.  Saltz,  84  Cal.  168;  Duncan  v.  Moore 
(Miss.),  7  So.  Rep.  221;  Franklin  Land  Co.  v.  Wea  Gas,  etc.,  Co.,  43 
Kan.  518;  Betts  v.  Sims,  25  Neb.  166;  Hemphill  v.  Haas  (Ky.),  11 
S.  W.  Rep.  510;   Riggs  v.  Sterling,  60  Mich.  643. 

89  Bruner  v.  Bateman,  66  Iowa,  488;  Belden  v.  Younger,  76  Iowa,  567. 

1  Smith  V.  Hutton,  75  Tex.  625;  Planters',  etc.,  Bank  v.  Dickenson, 
83  Ga.  711;  Texas  Land,  etc.,  Co.  V.  Blalock,  76  Tex.  85.  Most  of  the 
csaes  hold,  that  since  there  can  be  no  fraudulent  conveyance  of  a  home- 
stead, a  claim  to  a  homestead  may  be  made,  even  after  a  fraudulent 
conveyance  thereof.  Smith  v.  Kerr,  2  Dill.  (U.  S.)  50;  McFarland  V. 
Goodman,  6  Biss.  (U.  S.)  Ill;  Kennedy  v.  Nat.  Bank,  107  Ala.  170; 
Turner  v.  Vaughan,  33  Ark.  454;  JaflFers  v.  Aneals,  91  111.  487;  Thom- 
ason  V.  Neely,  50  Miss.  310;  State  v.  Diveling,  66  Mo.  375;  Dortch  v. 
Benton,  98  N.  C.  190;  Hatcher  V.  Crews,  83  Va.  371.  But  see,  contra, 
Minor  v.  Wilson,  58  Fed.  Rep.  616;  Gideon  v.  Struve,  78  Ky.  134. 
Since  a  homestead  is  exempt,  in  law,  from  the  debts  of  the  house- 
holder, creditors  cannot  claim  that  a  conveyance  of  a  homestead,  from 
husband  to  wife,  is  a  fraudulent  conveyance.  Wetherly  r.  Strauss,  93 
Cal.  283;  Boyd  v.  Barnett,  24  111.  App.  199:  Golsbitdi  v.  Ranibon,  84 
Iowa,  567;  Whayne  v.  Morgan  (Ky.),  12  S.  W.  Rep.  128;  Kelly  v. 
156 


CH.    Vn.]  HOMESTEAD   ESTATES.  §    126 

assert  their  claim  of  homestead  against  their  mother's  pur- 
chaser.- 

The  conveyance  must  conform  in  every  respect  to  the  or- 
dinary rules  of  conveyance.^  And  when  the  homestead  law 
requires  a  peculiar  form  of  acknowledgment,  in  order  to 
release  the  homestead  right,  the  conveyance  will  be  inef- 
fectual for  that  purpose,  if  the  provisions  of  the  law  are  not 
strictly  complied  with.*  But  even  when  the  proper  form 
of  acknowledgment  is  employed,  if  the  deed  contains  an  ex- 
press declaration  that  its  execution  by  the  wife  is  "solely 
for  the  purpose  of  relinquishing  her  dower  interest  in  the 
land,"  the  homestead  right  is  not,  as  to  her,  affected  by 
such  conveyance.' 

Fraud,  in  the  procurement  of  the  wife's  renunciation  of 
the  homestead,  will,  of  course,  vitiate  the  transaction;  and 
it  has  been  held  that  she  could  claim  her  homestead  even 
against  a  grantee,  who  was  not  a  party  to  the  fraud.®  But 
the  renunciation  of  the  homestead  right  by  the  wife,  is  only 
necessary  to  the  validity  of  a  conveyance  by  the  husband, 
when  the  homestead  right  had  been  established,  and  the 
homestead  set  out,  under  the  provisions  of  the  homestead 
law.    A  conveyance  prior  to  such  establishment  of  the  home- 

Connell  (Ala.),  18  So.  Rep.  9;  Burdge  v.  Bolin,  106  Ind.  175;  Robb  v. 
Brewer,  60  Iowa,  539;  Roberts  v.  Robinson,  49  Neb.  717,  68  N.  W.  Rep. 
1035;  Plummer  v.  Rohman  (Neb.),  84  N.  W.  Rep.  600;  Steiner  v. 
Berney  (Ala.  1901),  30  So.  Rep.  570,  8  Amer.  &  Eng.  Dec.  Eq.  261. 

2  Rogers  v.  Mayes,  84  Mo.  520 ;  Rhoder  v.  Brockhage,  86  Mo.  544. 

3 Jones  V.  Bobbins,  74  Tex.  615;  Winkleman  v.  Winkleraan  (Iowa), 
44  N.  W.  Rep.  556;  Borehan  v.  Byrne,  83  Cal.  23;  Yocum  v.  Lovell,  111 
111.  212;  Shelton  v.  Aultman  &  Taylor  Co.,  82  Ala.  315;  Jones  v.  Roper, 
86  Ala.  210. 

♦  See  Wheeler  v.  Gage,  28  111.  App.  427;  s.  c.  129  III.  197;  Razor  v. 
Dowan  (Ky.),  13  S.  W.  Rep.  914;  Kimmell  v.  Caruthers  (Ky.),  1 
S.  W.  Rep,  2;  Boreham  r.  Byrne,  83  Cal.  23;  Gage  v.  Wheeler,  128 
111.  197. 

•'•Thompson  v.  Sheppard,  85  Ala.  611. 

«  Barker  v.  Barker  ( Neb. ) ,  42  N.  W.  Rep.  889. 

157 


§    126  HOMESTEAD   ESTATES.  [PART   I. 

stead  needs  no  renunciation  of  the  right,  in  order  to  make 
perfect  the  title  of  the  purchaser.^ 

That  a  conveyance  by  husband  and  wife  for  a  valuable 
consideration  will  pass  their  title  to  the  grantee  free  from  the 
claims  of  creditors,  is  established  beyond  a  doubt.*  But  it 
has  been  held  that  the  voluntary  conveyance  to  a  third  per- 
son without  consideration,  is  an  act  of  abandonment,  a  fraud 
upon  creditors,  and  the  creditors  may  attach  the  property 
in  the  hands  of  the  grantee.®  An  alienation  of  the  home- 
stead for  a  substantial  consideration  conveys  the  whole  title 
and  the  proceeds  of  sale  are  to  be  re-invested  in  a  home- 

f  Hughes  r.  Hodges,  102  N.  C.  236,  262.  A  conveyance  by  the  husband 
alone,  of  a  homestead,  is  held  void,  in  the  following  cases:  Penn  v. 
Case  (Tex.  1904),  81  S.  W.  Rep.  349;  Alvis  V.  Alvis,  123  Iowa,  546; 
99  N.  W.  Rep.  166;  Collins  v.  Bounds  (Miss.  1904),  36  So.  Rep.  689; 
Helgebye  v.  Dammen  (N.  D.  1904),  100  N.  W.  Rep.  245;  Solt  v.  Ander- 
son (Neb.  1904),  99  N.  W.  Rep.  678;  Way  v.  Scott  (Iowa,  1902),  91 
N.  W.  Rep.  1034;  Keisewetter  v.  Kress  (Ky.  1902),  70  S.  W.  Rep.  1065; 
Hubbard  v.  Sage  Land  Co.  (Miss.  1903),  33  So.  Rep.  413.  Where  a 
statute  requires  the  wife  to  join  in  conveyances  of  the  homestead,  a 
conveyance  from  husband  to  wife,  in  which  she  does  not  join,  is  held 
void,  in  Illinois.  Robertson  v.  Tippie,  209  111.  38,  70  N.  E.  Rep.  584; 
Hogue  V.  Steel,  207  111.  340;  69  N.  E.  Rep.  931.  But  such  a  convey- 
ance, under  a  similar  statute,  is  upheld,  in  Arkansas.  Kindley  v. 
Spraker  (1904),  79  S.  W.  Rep.  766.  See,  also.  Turner  v.  Burnheimer, 
95  Ala.  241;  10  So.  Rep.  750;  Burkett  v.  Burkett,  78  Cal.  310;  20  Pac. 
Rep.  715;  3  L.  R.  A.  781;  Harsh  v.  Griffin,  72  Iowa,  608,  34  N.  W.  Rep. 
441;  Lynch  V.  Doran,  95  Mich.  395;  54  N.  W.  Rep.  882;  Furrow  V, 
Athey,  21  Neb.  671,  33  N.  W.  Rep.  208;  Beedy  v.  Finney  (Iowa,  1902), 
91  N.  W.  Rep.  1069. 

8  Bowman  v.  Norton,  16  Cal.  214;  Deffeliz  v.  Pico,  46  Cal.  289;  Bon- 
nell  V.  Smith,  53  Cal  377;  Parker  v.  Parker,  88  Ala.  362;  Ray  v.  Yar- 
nell,  118  Ind.  112;  Maynard  v.  May  (Ky.),  11  S.  W.  Rep.  806;  Thomp- 
son V.  Sheppard,  85  Ala.  611. 

9  Currier  v.  Sutherland,  54  N.  H.  475,  20  Am.  Rep.  143;  Jones  v. 
Currier,  65  Iowa,  533;  Campbell  v.  Jones,  52  Ark.  493.  But  see  Dient- 
zer  V.  Bell,  11  Wis.  114;  Wienbrenner  r.  Weisinger,  3  B.  Mon.  33; 
Planters'  Bank  v.  Henderson,  4  Humph.  75;  Garrison  v.  Monaghan,  33 
Pa.  St.  232;  Rankin  v.  Shaw,  94  N.  C.  405;  Beard  t;.  Blum,  64  Tex.  .59; 
Willis  V.  Mike,  76  Tex.  82;  Fordyce  V.  Hicks  (Iowa),  45  N,  W.  Rep. 
750;  Maynard  v.  May  (Ky.),  11  S.  W.  Rep.  806. 

158 


CH.    VU.]  HOMESTEAD   ESTATES.  §    127 

stead,  otherwise  they  become  subject  to  the  claims  of  cred- 
itors." If,  however,  the  alienation  consists  of  a  mortgage 
of  the  land,  the  homestead  right  will  have  been  lost  only 
as  to  the  mortgagee  and  persons  claiming  under  him.^^ 
There  may  of  course  be  a  direct  exchange  of  homesteads,  and 
the  same  homestead  rights  will  attach  to  the  new  property 
thus  acquired."  And  if  partition  is  made  of  the  premises 
in  which  the  homestead  has  been  claimed,  the  homestead 
would  attach  to  the  claimant's  share  in  the  proceeds  of  sale.'^ 

§  127.  Continued  —  By  abandonment. —  The  homestead  may 
also  be  lost  by  acts  which  constitute  an  abandonment  of  the 
homestead ;  such  would  be  a  permanent  removal  from  the 
homestead  where  actual  residence  is  required  to  support  the 
right,  or  the  acquisition  of  a  new  homestead."  The  inten- 
tion of  abandonment,  and  actual  abandonment,  must  co-exist. 

10  Smith  V.  Gore,  23  Kan.  88,  .33  Am.  T?ep.  158;  City  Bank  v.  Smisson, 
73  Ga.  422;  Skinner  v.  Chadwell  (Ky),  1  S.  W.  Kep.  437;  Kirby  v.  Gid- 
dings,  74  Tex.  679;  Mann  V.  Kelsey,  71  Tex.  609;  Lane  v.  Richardson, 
104  N.  C.  642.  It  has,  however,  been  held  that  homestead  exemption 
can  be  claimed  in  proceeds  of  the  sale  of  the  old  homestead,  although 
the  proceeds  have  not  been  re-invested  in  an  actual  homestead.  See 
Turner's  Guardian  v.  Turner's  Heirs  and  Creditors  (Ky.),  13  S.  W. 
Rep.  6. 

11  King  V.  Goetz,  70  Cal.  236;  First  Nat.  Bank  v.  Briggs,  22  111.  App. 
228;  White  t;.  Fulghum,  3  Pickle,  281. 

"Creath  v.  Dale,  84  Mo.  349;  City  Bank  v.  Smisson,  73  Ga.  422. 
Plummer  v.  Rohman  (Neb.  1900),  84  N.  W.  Rep.  600,  7  Amer.  &  Eng. 
Dec.  in  Eq.  379;  Jamison  v.  Weaver,  87  Iowa,  72;  Breshanan  r.  Nu- 
gent, 92  Mich.  76;  Bell  v.  Boosley,  18  Tex.  Civ.  App.  639.  But  see  Pool 
V.  Reid,  15  Ala.  826;  Bennett  v.  Hudson,  33  Ark.  762. 

i3Swandale  v.   Swandale,  25  S.  C.  389. 

1*  Stewart  V.  Mackey,  16  Texas,  38;  Gonhenant  v.  Cockrell,  20  Texas, 
96;  Titman  v.  Moore,  45  111.  169;  Woodbury  f.  Luddy,  14  Allen,  1; 
Howe  17.  Adams,  28  Vt.  544;  Ross  V.  Hellyer,  26  Fed.  Rep.  413;  Foster 
V.  Leland,  141  Mass.  187;  Reifenstahl  v.  Osborne,  66  Iowa,  567:  Wilson 
V.  Daniels  (Iowa),  44  N.  W.  Rep.  1246;  Feldes  v.  Duncan,  30  III.  App. 
469;  Hutch  V.  Holly,  77  Tex.  220;  Milburn  Wagon  Co.  v.  Kennedy,  75 
Tex.  212;  Smith  v.  Mattingly  (Ky.),  13  S.  W.  Rep.  719;  McAlpine  v. 
Powell  (Kan),  24  Pac.  Rep.  1353;  Langston  v.  Maxey,  74  Tex.  576; 
Welborne  v.  Downing,  73  Tex.  527. 

159 


§    127  HOMESTEAD   ESTATES.  [PART   I. 

The  intention  of  permanent  removal  does  not  affect  the  con- 
tinuance of  the  homestead  right,  as  long  as  there  is  no  actual 
abandonment.*^  But  the  abandonment  is  an  accomplished 
fact,  where  the  only  continued  occupation  consists  of  the 
temporary  storage  of  some  goods  on  the  place.**'  A  tempo- 
rary absence,  animo  revertendi,  will  not  cause  an  abandon- 
ment.*^ Nor  does  a  forced  absence  from  the  homestead,  it 
matters  not  for  how  long  a  time,  constitute  an  abandon- 
ment.*' 

It  is  always  a  question  of  fact  for  the  jury  whether  there 
has  been  an  abandonment.*®  The  statutes  sometimes  provide 
that  the  abandonment  must  be  manifested  by  certain  acts, 
or  a  written  acknowledgment  under  which  circumstances, 
abandonment  cannot  be  proven  in  any  other  way.^°  The 
fact  that  the   husband   abandons   the   homestead    has    been 

teKauffman  v.  Fore,  73  Tex.  ,308.  V 

"Tomlinson  v.  Swinney,  22  Ark.  400;  Wood  f.'Lord,  51  N.  H.  454; 
Barker  r.  Dayton,  28  Wis.  367;  Burch  v.  Mouton,  37  La.  An.  725; 
Scheuber  v.  Ballow,  64  Tex.  166;  Leake  r.  King,  85  Mo.  413;  Jones  V. 
Bobbins,  74  Tex.  615;  DuflFy  v.  Willis,  99  Mo.  432;  Reinstein  v.  Daniels, 

75  Tex.  640;  Nichols  v.  Nichols,  62  N.  H.  621;  Rollins  v.  O'Farrell, 
77  Tex.  90;  Davis  Sew.  M.  Co.  v.  Whitney,  61  Mich.  518;  Persiful  V. 
Hind  (Ky.),  11  S.  W.  Rep.  15;  Black  v.  Black's  .4dm'r  (Ky.  1889),  12 
S.  W.  147;  Graves  v.  Campbell,  74  Tex.  576;  C.  B.  Carter  Lumber  Co. 
V.  Clay  (Tex.),  10  S.  W.  Rep.  293;  see  Durland  v.  Seiler  (Neb.),  42 
N.  W.  Rep.  741.  A  sale  and  conveyance  of  the  homestead  to  a  third 
party,  who  re-conveys  to  the  wife,  is  not  an  abandonment,  in  Michigan. 
Burkhart  v.  Walker  &  Son,  92  N.  W.  Rep.  778.  By  statute,  in  Wash- 
ington, an  abandonment  of  a  homestead  is  only  operative,  when  filed  in 
the  office  where  the  homestead  is  recorded  and  actual  occupancy  is  not 
an  essential  of  the  estate.  Lewis  v.  Mauerman,  35  Wash.  156;  76 
Pac.  Rep.  737. 

18  Leake  r.  King,  85  Mo.  413;  Keyes  v.  Scanlan.  63  Wis.  345;  Persiful 
17.  Hind  (Ky.),  11  S.  W.  Rep.  15;  Woolcut  v.  Lerdell,  78  Iowa,  668. 

19  Feldes  f.  Duncan,  .^O  111.  App.  409;  Kutch  r.  Holly,  77  Tex.  220; 
Smith  V.  Mattingly  (Ky.),  13  S.  W.  Rep.  719;  Bowman  v.  Watson,  66 
Tex,  295;  Jones  v.  Blumenstein,  77  Iowa,  361;   Marshall  r.  Appelgate 

(Ky.),  10  S.  W.  Rep.  805. 

20  Tipton  r.  Martin,  71  Cal.  325.     Lewis  v.  Mauerman   (Wash.  1903), 

76  Pac.  Rep,  737. 

160 


CH.    VII.]  HOMESTEAD   ESTATES.  §    127 

held  not  to  affect  the  wife's  right  to  the  homestead  exemp- 
tion, although  she  accompanies  him,  on  the  ground  that  her 
departure  from  the  homestead,  under  those  circumstances, 
is  presumptive  involuntary.^^ 

21  Collins  r.  Baytt,  3  Pickle,  334 ;  overruling  Levison  v.  Abrahams, 
14  Lea.,  336.  But  see  Graves  v.  Campbell  (Tex.),  12  S.  W.  Rep.  238; 
74  Tex.  576.  A  second  marriage  is  usually  held  to  be  a  bar  or  aban- 
donment of  the  homestead,  as  the  wife  would  have  a  homestead  in  the 
second  husband's  land  and  could  not  legally  enjoy  two  homesteads. 
Kloss  r.  Wylezalek,  207  111.  328,  69  N.  E.  Rep.  863.  The  acquisition  of 
a  second  homestead  is  generally  held  to  be  sufficient  evidence  of  aban- 
donment to  prevent  a  claim  of  homestead  as  to  a  previous  residence. 
Wilmoth  V.  Gossett,  71  Ark.  594,  76  S.  W.  Rep.  1073. 

11  161 


CHAPTER  VIII. 

ESTATES  LESS  THAN  FREEHOLD. 

Section  I.  —  Estates  for  years. 

II.  —  Estates  at  will,  and  tenancies  from  year  to  year. 
III.  —  Estates  at  sufferance. 

SECTION  I. 

Sectiow  128.  History  of  estates  for  years. 

129.  Definition. 

130.  Term  defined. 

131.  Interesse  termini. 

132.  Terms  commencing  in  futuro. 

133.  The  rights  of  lessee  for  years. 

134.  How  created. 

135.  Form  of  instrument. 

136.  Continued  —  Distinction   between  present   lease   and   con- 

tract for  a  future  one.  , 

137.  Acceptance  of  lease  necessary. 

138.  Relation  of  landlord  and  tenant. 

139.  Assignment  and  subletting. 

140.  Involuntary  alienation. 

141.  Disposition  of  terms  after  death  of  tenant. 

142.  Covenants  in  a  lease,  in  general. 

143.  Continued  —  Express  and  implied   covenants. 

144.  Implied  covenant  for  quiet  enjoyment. 

145.  Implied  covenant  for  rent. 

146.  Implied  covenant  against  waste. 

147.  Covenants  running  with  the  land, 

148.  Conditions  in  leases. 

149.*  Rent  reserved  —  Necessity  of  consideration. 

150.  Rent  reserved  —  Condition  of  forfeiture. 

151.  How  relation  of  landlord  and  tenant  may  be  determined. 

152.  What  constitutes  eviction. 

153.  Constructive  eviction. 

154.  Partial  eviction. 

155.  Surrender  and  merger, 

162 


CH.    VIII.]  ESTATES   FOR   YE.VES.  §    128 

156.  How  surrender  may  be  eflFected. 

157.  Right  of  lessee  to  deny  lessor's  title. 

158.  Effect  of  disclaimer  of  lessor's  title. 

159.  Options  of  purchase  and  for  renewal. 

160.  Letting  land  upon  shares. 

161.  Actions  between  landlords  and  tenants. 

§  128.  History  of  estates  for  years. —  Under  the  feudal  sys- 
tem, the  smallest  interest  which  could  be  granted  out  of 
lands,  having  the  characteristics  of  an  estate,  was  a  free- 
hold. Such  are  the  estates,  which  have  been  treated  in  the 
preceding  pages.  But  there  obtained  at  that  time  a  custom 
of  granting  by  contract  to  tenants  the  possession  of  the 
lands  for  a  stipulated  period,  in  consideration  of  some  rent 
paid  or  service  performed  by  the  tenant.  The  tenant 
acquired  no  estate  or  vested  interest  in  the  land,  which 
would  give  to  him  the  possessory  actions  necessary  for  the 
protection  of  such  interests.  If  he  was  evicted  by  the  land- 
lord or  by  any  other  person,  he  had  only  his  action  for  dam- 
ages against  the  landlord  for  the  breach  of  his  contract. 
He  could  not  recover  possession  as  in  the  case  of  a  free- 
hold.^ But  subsequently  the  writ  of  ejectment  was  invented 
for  his  protection,  by  which  he  could  recover  possession  of 
the  land,  with  damages  for  its  detinue,  and  this  form  of 
action  substantially  remains  to  this  day.*  But  these  estates, 
as  well  as  the  other  tenancies  considered  in  the  fol- 
lowing sections,  are  generally  considered  and  treated  as 
chattel  interests  in  lands,  having  more  the  characteristics 
of  a  bailment,  than  of  a  freehold  estate  in  real  property. 
The  tenant  is  never  said  to  be  seized  of  the  land.  The 
actual  seisin,  if  acquired  by  virtue  of  his  possession,  is  held 
by  him  as  a  quasi-bailee  of  the  remainderman.'     This  gen- 

1  Washburn  on  Real  Prop,  433,  435 ;  Maine's  Anc.  Law,  275 ;  Digby, 
Hist.  Real  Prop.  175. 

2  1  Washburn  on  Real  Prop.  435,  436;  Goodlittle  v.  Tombs.  3  Wils. 
120;  Campbell  r.  Loader,  3  H.  A  C.  527.  For  history  of  the  writ 
ejectione  firmae,  on  which  the  action  of  ejectment  was  subsequently 
based,  see  2  Pollock  &,  Maitlands  Hist.  Eng.  Law,  291. 

8  1  Washburn  on  Real  Prop.  435 ;  1  Cruise  Dig.  224. 

163 


§    130  ESTATES  FOR  YEARS,  [PART  I. 

eral  proposition  is,  however,  often  limited  by  statutory 
enactments,  which  give  to  estates  for  years  of  a  certain 
duration,  fixed  by  statute,  all  the  characteristics  of  a  free- 
hold estate.*  Such  leaseholds,  by  force  of  these  statutes,  as- 
sume the  character  of  a  freehold  estate,  so  far  as  the  cer- 
tainty of  its  duration  will  permit. 

§  129.  Definition. —  An  estates  for  years  is  one  granted  for 
a  certain  definite  period  of  time,  by  the  owner  of  the  free- 
hold, who  in  this  connection  is  called  the  lessor,  to  one  called 
the  lessee,  to  hold  and  enjoy  during  the  time  stipulated  and 
under  the  conditions  agreed  upon.  The  word  years  is  used 
simply  as  a  unit  of  time,  and  an  estate  for  years,  technic- 
'ally,  may  be  for  any  period  of  time,  a  month,  a  week,  etc.'' 

§  130.  Term  defined. —  Since  the  estate  is  to  last  for  a  defi- 
nite period  of  time,  having  a  precise  beginning  and  end, 
it  has  acquired  the  technical  designation  of  a  term,  from  the 
Latin  terminus.^  But  the  period  need  not  be  definitely  fixed 
by  the  contract  of  the  parties,  which  creates  the  estate.  Un- 
der the  maxim,  id  cerium  est  quod  certum  reddi  potest,  the 
contract  or  lease  would  be  valid,  if  it  contained  sufficient 
means  of  ascertaining  its  duration.  A  lease,  therefore,  for 
so  many  years  as  J.  S.  shall  name,  or  to  A.  during  his 
minority,  would  be  a  good  term,  while  a  lease  for  so  many 
years  as  A.  shall  live,  would  not  be  good  as  a  term,  since 
there  is  no  way  in  which  the  duration  of  the  term  can  be 
ascertained  until  its  expiration.'     It  has,  however,  been  held 

*  1  Washburn  on  Real  Prop.  463 ;  Walker  Am.  Law,  279. 

5  1  Washburn  on  Real  Prop.  436 ;  Brown  V.  Bragg,  22  Ind.  122 ;  Gould 
V.  School  Dist.,  8  Minn.  431;  Dixon  V.  Ahem  (Nev.),  24  Pac.  Rep.  337; 
Shaw  V.  Hill  (Mich),  44  N.  W.  Rep.  422;  Buel  v.  Buel  (Wis.),  45  N.  W. 
Rep.  324;  State  v.  Staiger  (N.  J.),  19  Atl.  Rep.  357.  Taylor,  Land  & 
Ten.,  Sec.  17;  Huff  v.  McCauly    (Pa.),  91  Amer.  Dec.  203. 

«  1  Washburn  on  Real  Prop.  438 ;  Williams  on  Real  Prop.  388. 

T  Co.  Lit.  45  b:  1  Washburn  on  Real  Prop.  441;  Dunn  V.  Cartright,  4 
East,  29:  Doe  r.  Dickson,  9  East,  15;  West.  Transp.  Co.  V.  Lansing,  49 
N.  Y.  508;  Horner  v.  Leeds,  25  N.  J.  L.  106;  Delashman  v.  Barry,  20 

164 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    131 

to  be  a  good  lease  where  the  lessee  was  given  the  possession 
as  long  as  a  certain  building  was  not  completed.^  And  if  a 
lease  is  given  for  a  time  certain,  the  validity  is  not  affected 
by  an  additional  stipulation  that  the  tenant's  possession 
thereafter  is  to  continue  at  the  will  of  the  lessor.® 

§  131.  Interesse  termini. —  The  lessee  does  not  acquire  an 
estate  in  the  land  until  he  has  entered  into  possession.  His 
interest  is  simply  a  right  of  entry,  and  is  called  an  interesse 
termini.  Until  possession  is  acquired,  he  cannot  maintain 
any  action  against  strangers  in  respect  to  the  land.  Before 
the  entry,  the  right  of  possession  and  the  right  to  bring  such 
actions  are  in  the  lessor.^"  It  has  also  been  held  at  com- 
mon law  that  the  lessee  cannot,  before  entry,  maintain  an 
action  of  ejectment.  But  under  the  present  theory  in  re- 
gard to  this  action,  it  is  equivalent  to  common-law  entry, 

Mich.  292;  Russell  v.  McCartney,  21  Mo.  App.  544;  Spies  f.  Voss,  9. 
N.  Y.  S.  532.  On  the  principle  that  the  number  of  years  can  be  ascer- 
tained by  computation,  it  has  been  held  that  a  devise  or  grant  of  lands>. 
to  pay  debts  out  of  the  rents  and  profits,  is  treated  as  an  estate  for 
years.  1  Cruise  Dig.  223;  Batchelder  v.  Dean,  16  N.  H.  268.  See, 
also,  ante,  Sec.  46. 

8  D'Arcy  r.  Martyn,  63  Mich.  602.  See,  also,  Sutton  v.  Hiram  Lodge, 
83  Ga.  770  (for  the  space  of  twenty  years,  or  during  our  (lessee's^ 
natural  lives).  A  term  may  be  created  as  well  in  incorporeal  thing*, 
real,  as  in  other  species  of  real  property.  Taylor  Land.  &  Ten.,  17;: 
Commonwealth  V.  Weatherhead,  110  Mass.  175.  That  the  lessor  only- 
has  a  life  estate,  does  not  effect  the  rights  of  the  parties  to  a  lease- 
for  a  fixed  term,  with  privilege  of  a  renewal.  Olden  v.  Sassman  (N.  J.. 
Ch.   1904),  57   Atl.  Rep.   1075. 

» Myers  V.  Kingston  Coal  Co.,  126  Pa.  St.  582. 

10  Co.  Lit.  46  b;  4  Kent's  Com.  97;  Doe  v.  Walker,  5  B.  &  C.  Ill; 
Wheeler  v.  Montefiore,  2  Q.  B.  142;  Sennett  V.  Bucher,  3  Pa.  St.  392; 
1  Washburn  on  Real  Prop.  442,  443.  And  although  the  words  "  bargair> 
and  sell  "  in  a  lease,  founded  upon  actual  and  valuable  consideration, 
will  create  a  use,  which  will  be  executed  into  a  legal  estate  by  the 
Statute  of  Uses,  the  same  rule  in  respect  to  the  necessity  of  entry  into 
possession  applies.  2  Sand.  Uses,  56;  1  Washburn  on  Real  Prop.  443. 
See  Harrison  v.  Blackburn,  17  C.  B.  (N.  S.)  .678;  Austin  r.  Coal  Co., 
72  Mo.  535;  1  Greenl.  Cruise  243;  4  Kent's  Com.  (11  ed.)  106;  1 
Flatt  Leas.  22;  Taylor  Land.  &  Ten.   (6  ed.)    11. 

165 


§    132  ESTATES  FOR  YEARS.  [PART  I. 

and  can  be  maintained  by  any  one  who  has  a  good  title  and 
an  immediate  right  of  entry."  The  interesse  termiw'  how- 
ever, is  so  far  a  vested  interest  as  to  be  capable  of  descent 
to  the  personal  representatives,  or  of  bequest  like  other  chat- 
tel interests.  It  can  also  be  assigned  or  released."  But  a 
delay  on  the  part  of  the  lessee  to  convert  his  interesse  termini 
into  an  actual  estate,  does  not  suspend  his  liability  on  the 
covenants  of  his  lease,  unless  such  delay  is  occasioned  by 
the  fault  of  the  lessor.^'  But  it  is  the  duty  of  the  lesser 
to  deliver  the  possession  to  the  tenant;  and  if  the  leased 
property  is  in  the  possession  of  a  third  person,  who  refuses 
to  give  it  up,  it  is  the  lessor's  duty  to  oust  him;  and  until 
he  does  this  he  breaks  his  covenant  for  quiet  enjoyment  and 
is  liable  in  damages  to  the  lessee." 

§  132.  Terms  commeiicing  in  futuro. —  Since  a  term  of  years 
is  a  contract  for  the  delivery  and  detention  of  the  possession 
and  does  not  affect  the  seisin  of  the  reversioner,  it  may  be 
made  to  commence  at  any  time  in  the  future,  as  well  as  in 
the  present,  provided  it  does  not  offend  the  doctrine  of  per- 
petuities, by  vesting  in  possession  at  a  time  beyond  a  life 
or  lives  in  being,  and  twenty-one  years  thereafter.^^  Some- 
times a  lease  contains  a  covenant  for  renewal.  Where  it 
is  a  covenant  for  an   indefinite  renewal,   it  has  been  held 

"  1  Washburn  on  Real  Prop.  443,  444;  Gardner  v.  Keteltas,  3  Hill  332; 
Whitney  r.  Allaire,  1  N.  Y.  305. 

"Co.  Lit.  46  b,  338  a;  4  Kent's  Com.  97;  Doe  V.  Walker,  5  B.  &  C. 
Ill;   1  Washburn  on  Real  Prop.  444. 

13  1  Washburn  on  Real  Prop.  44.5;  Salmon  r.  Smith,  1  Saund. 
203,  note  1,  Whitney  v.  Allaire.  1  N.  Y.  305;  Lafarge  v.  Mansfield,  31 
Barb.  .345 :  Mechan.  Ins.  Co.  v.  Scott.  2  Hilt.  550 ;  Maverick  v.  Lewis,  3 
McCord,  216;  Rice  v.  Brown,  81  Me.  56.  But  see  Reed  v.  Beck,  66  Iowa 
21,  where  it  was  held  that,  where  a  mine  was  rented  imder  a  contract  to 
pay  a  certain  sum  per  ton,  sp'l  a  guaranty  that  the  royalty  should  not 
fall  short  of  a  given  amount,  no  rent  was  due  until  mining  had  begun. 

i«Cohn  r.  Norton,  57  Conn.  480. 

15  Williams  on  Real  Prop.  38;  Cadell  f.  Palmer,  10  Bing.  140;  Wild 
r.  Traip,  14  Gray  333. 
166 


CH.    VUI.]  ESTATES   FOR   YEARS,  §    132 

to  be  a  void  agreement  within  the  doctrine  of  perpetuity.^' 
Whether  this  rule  would  be  adopted  generally,  is  a  matter 
of  some  doubt.  Where  the  covenant  for  renewal  is  on  the 
part  of  the  lessor  and  the  lessee  does  not  expressly  bind  him- 
self to  accept  such  a  renewal,  the  performance  or  non-per- 
formance of  the  covenant  is  at  the  option  of  the  lessee,  and 
he  cannot  be  compelled  to  accept  a  renewal."  Unless  the 
term  does  take  effect  in  possession,  the  lessee  has  only  an 
interesse  termini.^^ 

It  is  sometimes  stated  without  any  qualification  or  ex- 
planation, which  is  at  all  satisfactory  to  a  rational  mind,  that 
leaseholds  can,  and  freeholds  cannot,  be  created  to  com- 
mence in  the  future,  and  the  difference  in  the  operation  of 
this  rule  on  the  two  kinds  of  estates  is  ordinarily  ascribed 
to  some  feudal  distinction.  But  the  rational  explanation 
of  the  matter  is  the  following:  A  lease  is  not  a  conveyance 
of  an  estate,  but  only  an  executory  contract  for  the  transfer 
of  an  estate  for  years,  and  differs  in  no  material  respect 
from  the  operation  of  an  executory  contract  for  the  sale 
of  a  freehold  estate.  The  difference  arises  at  common  law 
in  the  modes  of  executing  these  two  executory  contracts  of 
sale.  The  lease  is  executed  by  the  lessee  taking  possession 
of  the  land,  without  any  formal  transfer  of  it  to  him  by  the 

18  Reed  r.  Campbell,  43  N.  J.  Eq.  406;  Morrison  r.  Rossignol,  5  Cal. 
64. 

17  Brucer  r.  Fulton  National  Bank,  79  N.  Y.  154,  35  Am.  Rep.  505. 

18  1  Washburn  on  Real  Prop.  439;  4  Kent's  Com.  97;  Doe  r.  Walker 
.")  B.  &  C.  311.  Berridge  v.  Glassey,  112  Pa.  St.  442,  56  Am.  Rep.  322; 
Illinois  Starch  Co.  r.  Ottawa  Hydraulic  Co.,  23  111.  App.  272,  «.  c.  125 
111.  237.  If  the  premises,  in  a  lease  commencing  in  futuro,  are  de- 
stroyed before  the  time  arrives  for  it  to  vest  in  possession,  the  tenant 
is  under  no  liability  for  rent.  The  very  subject-matter  of  the  contract 
being  destroyed,  the  contract  becomes  an  impossible  one,  and  the  ])arties 
are  relieved  of  their  liability.  Taylor  f.  Caldwell,  3  B.  &  S.  826; 
Wood  r.  Hubbell,  10  N.  Y.  487.  A  mere  contract  to  execute  a  lease  never 
conveys  any  estate  in  the  premises  agreed  to  be  demised.  Henderson 
r.  Schuylkill  V^alley  Co.,  24  Pa.  Super.  Ct.  422;  Ver  Steeg  r.  Becker- 
Moore  Co.  (Mo.  1904),  80  S.  W.  Rep.  346;  Austin  v.  Coal  Co.,  72  Mo. 
535. 

167 


§    134  ESTATES   FOR   YEARS.  [PART    I. 

lessor.  But  at  common  law  an  executory  contract  for  the 
sale  of  a  freehold  could  only  be  executed  by  a  livery  of 
seisin,  which  from  its  very  nature  could  not  take  place 
until  the  time  arrive(f  when  the  grantee's  estate  was  to  be- 
gin. To  be  strictly  accurate  in  speech,  neither  the  lease- 
hold nor  the  freehold  can  be  created  to  commence  in  the 
future,  but  it  is  practically  accurate  to  say  that  a  leasehold 
can  be  so  created,  inasmuch  as  the  executory  lease  is  self- 
executing.  The  necessity  at  common  law  for  the  livery  of 
seisin  in  the  execution  of  an  executory  sale  of  a  freehold 
is  the  only  obstacle  in  the  way  of  applying  the  same  state- 
ment to  the  sale  of  freeholds  in  futuro.  As  soon  as  a  con- 
veyance of  the  legal  title  to  freeholds  was  devised,  whereby 
the  executory  bargain  and  sale  of  a  freehold  became  self- 
executing,  we  then  find  that  freeholds,  as  well  as  leaseholds, 
can  be  created  to  commence  in  the  future.^® 

§  133.  The  rights  of  lessee  for  years. —  As  a  general  propo- 
sition, the  lessee  is  entitled  to  all  the  rights  of  freeholders, 
which  arise  out  of  actual  possession,  including  those  of 
estovers,  fixtures,  and  the  modes  of  enjoyment  of  the  land.^" 
But  the  estate  for  years  can  be  regulated  by  agreement  of 
parties  to  an  almost  unlimited  extent,  and  the  rights  of  the 
parties  under  a  lease  are  as  variant  as  the  contracts.  There 
are  few,  if  any,  rights  which  might  be  considered  as  in- 
variable incidents  of  leaseholds. 

§  134.  How  created. —  A  contract  is  the  basis  of  every  ten- 
ancy for  years.  A  permissive  occupation  of  the  land  is  not 
such  a  tenancy  as  would  support  a  claim  for  rent.-^  At 
common  law  an  estate  for  years  could  have  been  created  by 

18  See  post,  Sec.  543, 

zoKutter  v.  Smith,  2  Wall.  497;  Davis  v.  BuflFum,  51  Me.  162; 
Dingley  v.  Buffum,  57  Me.  382;  Riddle  V.  Littlefield,  33  N.  H.  510; 
Freer  v.  Stotenbur,  si  Barb.  642;  Dubois  v.  Kelly,  10  Barb.  49^  See 
ante,  Sees.  56-63. 

2iCollyer  V.  Colly^r,  113  N.  Y.  442. 
168 


3^ 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    134 

a  parol  contract.  But  under  the  English  Statute  of  Frauds, 
all  leases  for  more  than  three  years  must  be  put  in  writing 
and  signed  by  the  parties;  otherwise,  they  shall  have  only 
the  force  and  effect  of  estates  at  will.^^  Although  the  stat- 
utes declare  such  parol  leases  to  have  only  the  force  and 
effect  of  estates  at  will,  yet  in  those  States  in  which  the 
doctrine  of  tenancies  from  year  to  year  is  recognized,  they 
would  be  construed  to  be  tenancies  from  year  to  year,  if  the 
tenant  enters  into  possession  and  pays  rent,  and  in  all  the 
States,  such  tenants  would  have  a  right  to  the  statutory 
notice  to  quit  before  an  action  of  ejectment  can  be  main- 
tained against  them.^  But  mere  possession,  without  an 
actual  payment  of  rent,  will  not  impose  upon  the  tenant  the 
obligations  of  a  tenant  from  year  to  year;  and  -he  is  at 
liberty  to  escape  liability  for  rent  by  abandoning  the  pos- 
session,^* It  is  not  necessary  that  such  leases  should  be 
under  seal  in  order  to  be  valid.^'^     The  statutes  of  the  dif- 

22  1  Washburn  on  Eeal  Prop.  446,  447. 

23  Schneider  v.  Lord,  62  Mich.  141;  Tanton  v.  Van  Alstine,  24  111. 
App.  405;  Quinlan  v.  Bonte,  25  111.  App.  240;  Talamo  r.  Spitzniiller, 
120  N.  Y.  37;  People  V.  Rickhert,  8  Cow.  226;  McDowell  v.  Simpson,  3 
Watts  129;  Dunn  V.  Rothermel,  112  Pa.  St.  272;  Utah  Loan  &  T.  Co.  v. 
Garbut  (Utah),  23  Pac.  Rep.  758;  Condert  v.  Cohn,  118  N.  Y.  309, 
N.  B.  48;  Rosenblatt  V.  Perkins  (Or.),  22  Pac.  Rep.  598.  But  see 
Unglish  V.  Marvin,  45  Hun  45.  And  as  long  as  possession  continues 
under  a  parol  lease,  which  is  void  under  the  Statute  of  Frauds,  the 
rights  of  the  parties  will  be  governed  by  the  terms  of  the  original  let- 
ting. Doe  17.  Bell,  5  T.  R.  471;  Barlow  v.  Wainwright,  22  Vt.  88;  Cur- 
rier V.  Barker,  2  Gray  224;  Quinlan  v.  Bonte,  25  111.  App.  240.  Any 
language  by  which  possession  of  premises  is  transferred  for  a  fixed 
term,  for  a  stipulated  rent,  is  a  lease,  in  Pennsylvania.  Pickering  v. 
O'Brien,  23  Pa.  Super.  Ct.  125.  No  seal  is  necessary,  in  Illinois,  Borg- 
gard  V.  Gale,  107  111.  App.  128,  205  111.  511,  68  N.  E.  Rep.  1063.  But 
the  lease  must  be  for  a  lawful  purpose.  A  lease  of  property  for  a 
bawdy  house  is  wholly  void.  Berni  v.  Boyer,  90  Minn.  469,  97  N.  W. 
Rep.  121;  Sprague  v.  Rooney,  84  Mo.  349;  McDermott  v.  Sedgwick,  140 
Mo.  172. 

24  Capper  v.  Sibley,  55  Iowa  754. 

28  Allen  V.  Jaquish,  21  Wend.  635;  Olmstead  v.  Niles,  7  N.  H.  526; 
Den  V.  Johnson,  15  N.  J.  L.  116;  1  Washburn  on  Real  Prop.  447. 

169 


§134  ESTATES    FOR    YEARS.  [PART   I. 

ferent  States  are  similar  in  their  general  provisions,  but  there 
is  a  diversity  in  respect  to  the  length  or  duration  of  those 
leases,  which  will  be  valid  without  writing;-*  while  in  some, 
again,  the  writing  is  required  to  be  under  seal,  or  in  other 
words,  to  be  a  deed.^^  But  if  only  one  of  the  parties  signs 
the  lease,  and  the  tenant  enters  into  actual  possession  of 
the  premises,  the  party  signing  cannot  relieve  himself  of 
liability  on  the  lease  by  showing  that  the  lease  had  not  been 
duly  executed  by  the  other  party.  This  is  true  whether  the 
party  failing  to  sign  be  the  lessor  or  lessee.-^  In  Maine  it 
is  held  that  the  signature  of  the  lessor  and  the  seal  of  the 
lessee  bind  both  parties  to  the  lease.^®  If  the  lease  is  ex- 
ecuted by  an  agent,  according  to  the  English  law,  and  that 
of  some  of  the  States,  the  authority  must  be  given  in  writing, 
while  in  other  States,  the  writing  not  being  under  seal,  a 

26  The  English  statute  has  been  re-enacted  in  Pennsylvania,  New 
Jersey,  Maryland,  North  Carolina,  South  Carolina,  Georgia,  and  In- 
diana. In  Florida,  leases  for  two  j'ears  and  under  may  be  by  parol. 
In  Alabama,  Arkansas,  California,  Delaware,  Iowa,  Kentucky,  Michigan, 
Mississippi,  New  York,  Nevada,  Rhode  Island,  Tennessee,  Texas,  Vir- 
ginia and  Wisconsin,  the  term  is  one  year ;  while  in  Maine,  Massachu- 
setts, Missouri,  New  Hampshire,  Ohio  and  Vermont,  all  parol  leases 
create  tenancies  at  will.     1  Washburn  on  Real  Prop.  484,  note. 

27  The  provisions  of  the  State  statutes  requiring  a  sealed  instru- 
ment in  the  grant  of  a  leasehold,  are  not  uniform.  Generally  it  is  pro- 
vided that  only  leases  of  a  certain  duration  should  be  sealed.  See 
Taylor's  L.  and  T.,  Sec.  34;  Gratt  v,  Bratt,  21  Md.  583;  Chandler  v. 
Kent,  8  Minn.  526. 

28Zink  V.  Bohn,  3  N.  Y.  S.  4;  Toan  V.  Pline,  60  Mich.  385.  There 
must  be  a  sufficient  description  of  the  premises  (Dixon  v.  Finnegan,  182 
Mo.  Ill,  81  S.  W.  Rep.  449)  ;  a  present  demise  of  the  premises  (Ver 
Steeg  v.  Becker-Moore  Co.,)  Mo.  1904,  80  S.  W.  Rep.  346;  and  an 
execution  by  the  parties,  to  constitute  a  valid  lease  (Kuntz  v.  Maren- 
holz,  N.  Y.  1904,  88  N.  Y.  S.  1002).  In  the  execution  of  a  lease  to 
property  held  in  trust  all  the  trustees  must  join,  or  the  lease  is  void. 
Baltimore  &  Ohio  Co.  v.  Winslow,  188  U.  S.  646,  47  L.  Ed.  635.  And,  in 
W^est  Virginia,  if  lessor's  name  does  not  appear  in  body  of  lease,  al- 
though he  signs  it,  it  is  not  a  good  demise.  Barnsball  V.  Boley,  119  Fed. 
Rep.  191. 

20  Rice  V.  Brown,  81  Me.  56.  No  seal  is  required  in  Illinois.  Borg- 
gard  V.  Cole,  205  111.  511,  68  N.  E.  Rep.  1063. 

170 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    135 

parol  power  of  attorney  will  be  sufficient.^'*  Whenever  a 
lease  is  reduced  to  writing,  parol  evidence  is  inadmissible 
to  vary  or  add  to  the  terms  of  the  lease  as  set  forth  in  the 
writing.^^ 

§  135.  Form  of  instrument. —  In  the  execution  of  a  lease,  a 
general  form  of  deed,  more  fully  explained  hereafter,  is 
usually  followed,  and  certain  terms  and  forms  of  expression 
are  used.  But  any  form  of  deed,  and  any  terras  or  mode  of 
expression  will  be  sufficient  for  the  creation  of  an  estate 
for  years,  which  shows  the  intention  of  the  lessor  to  transfer 
to  the  lessee  the  possession  of  the  land  during  a  certain  de- 
terminate period  of  time.^-  If  the  lease  is  delivered  as  an 
escrow,  no  title  passes  to  the  tenant  until  the  condition  has 
been  performed.''^  The  words  of  grant  usually  employed 
are  "grant,"  "demise,"  and  "farm-let."  "Do  lease,  de- 
mise, and  farm-let,"  signify  generally  the  creation  of  a 
present  vesting  term,  and  not  a  future  or  contingent  one, 
but  this  implication  may  be  controlled  by  the  other  provisions 
of  the  lease.'*     The  lease  must,  of  course,  describe  the  land 

30  1  Washburn  on  Real  Prop.  448,  note.  The  English  rule  has  been 
adopted  in  Alabama,  Arkansas,  Georgia,  Maryland,  Michigan,  Missouri, 
New  Hampshire,  New  Jersey,  New  York,  Ohio,  Pennsylvania,  South 
Carolina,  and    Wisconsin.     Cheesebrough   v.   Ringrel,    72   Mich.  438. 

81  Stevens  v.  Pierce  (Mass.),  23  N.  E.  Rep.  1006;  McLean  v.  Nicoll, 
43  Minn.  169;  Snead  f.  Tiejer  (Ariz.),  24  Pac.  Rep.  324;  Kline  v.  Mc- 
Lain,  33  W.  Va.  32;  Pike  v.  Leiter,  26  111.  App.  531;  Leiter  v.  Pike,  127 
111.  287;  Stoddard  v.  Nelson,  17  Or.  418. 

32  Wells  V.  Sheerer,  78  Ala.  142;  Dunck  Co.  v.  Webber  (Mass.),  24 
N.  E.  Rep.  1082;  Collyer  i'.  Collyer,  113  N.  Y.  442;  Houston  v.  Smythe, 
66  Miss.  118;  Oliver  v.  Moore,  53  Hun  472;  Rice  v.  Brown,  81  Me.  56. 

33  Gorsuch  V.  Rutledge,  70  Ind.  272. 

34  So.  Cong.  Meet.  House  v.  Hilton,  11  Gray  409;  White  v.  Livingston, 
10  Cush.  259;  Putnam  v.  Wise,  1  Hill  244;  Jackson  f.  Delacroix.  2 
Wend.  438;  Walker  v.  Fitts,  24  Pick.  181;  Doe  r.  Ries,  8  Bing.  182; 
Doe  V.  Benjamin,  9  A.  &  E.  650.  "  Shall  hold  and  enjoy  "  have  atso 
been  held  to  be  words  of  present  demise.  Doe  v.  Ashburner,  5  T.  R. 
168;  Moshier  r.  Reding.  12  Me.  135;  Wilson  r.  Martin,  1  Denio  602; 
Watson  V.  O'Hern,  6  Watts.  362;  Moore  v.  Miller,  8  Pa.  St.  272.  See, 
for  essentials  of  lease,  Kuntz  v.  Morenholz    (N.  Y.  1904),  88  N.  Y.  8. 

171 


§    136  ESTATES   FOR   YEARS.  [PART   I. 

which  is  leased  with  sufficient  accuracy  to  admit  of  its 
identification.*^  But  an  agent  of  the  lessor  may  under  parol 
authority  *®  supply  the  deficiency  of  the  description.*^  And 
if  the  tenant  enters  into  possession  under  the  lease,  he  can- 
not object  to  his  liability  under  the  covenant,  on  account  of 
the  deficiency  of  the  description.*^ 

§  136.  Continued  —  Distinction  between  present  lease  and 
contract  for  future  one. —  It  is  sometimes  difficult  to  determine 
whether  the  instrument  is  a  present  lease,  or  only  a  contract 
for  a  future  one.  If  it  is  a  present  lease,  the  parties  will 
be  bound  by  its  implied,  as  well  as  express,  provisions,  and 
their  force  and  affect  cannot  be  altered  by  parol  evidence, 
showing  the  intentions  of  the  parties  to  have  been  different.*® 
Whereas,  if  the  instrument  was  only  a  contract  for  a  future 
lease,  it  is  not  the  final  repository  of  the  wishes  of  the 
parties,  and  it  can  be  altered  or  amended  to  effectuate  their 
intention.*"  But  in  the  absence  of  mutual  agreements  for 
alterations  or  amendments,  neither  party  can  insist  on  the 
insertion  into  the  lease  of  terras  and  conditions,  which  are 
not  imposed  on  the  parties  by  law.*^  The  ordinary  rule 
of  construction  is  that  where  the  agreement  leaves  nothing 
further  to  be  done  by  the  parties,  and  contains  directly,  or 
by  reference  to  other  papers  or  records,  all  the  provisions 
that  are  necessary  to  a  valid  lease,  the  instrument  will  be 
treated  as  a  present  demise.*^    And  even  where  a  fuller  lease 

1002;  Dixon  v.  Finnegan,  182  Mo.  Ill,  81  S.  W.  Rep.  449;  Baltimore 
&  Ohio  Co.  V.  Winslow,  188  U.  S.  646,  47  L.  Ed.  635. 

35Cluett  V.  Sheppard    (111.),  23  N.  E.  Rep.  582. 

30  See  post,  Sec.  548. 

37  Bulkley  v.  Devine,  27  111.  App.  145,  s.  c.  127  111.  406. 

38  Bulkley  v.  Devine,  127  111.  406. 

39  Kline  v.  MeLain,  33  W.  Va.  32. 
«>  1  Washburn  on  Real  Prop.  453. 

<i  Hayden  v.  Lucas,  18  Mo.  App.  325. 

<2  Kabley  v.  Worcester  Gas  Co.  102  Mass.  394;  Shaw  v.  Farnsvvorth, 
108  Mass.  357.  See  Weed  v.  Crocker,  13  Gray  219 ;  Hallett  v.  Wylie,  3 
Johns.  47;  Jackson  r.  Delacroix,  2  Wend.  433;  Averill  v.  Taylor,  8 
172 


CII.    VIII.]  ESTATES   FOR   YEARS.  §    137 

is  stipulated  for,  although  this  clause  standing  alone  would 
give  to  the  agreement  the  character  of  a  contract  for  a  lease, 
yet  if  there  are  proper  words  of  present  demise,  the  cove- 
nant for  a  future  lease  will  be  treated  merely  as  a  covenant 
for  further  assurance,  and  the  agreement  will  take  effect 
as  a  present  demise.*^  And  where  the  agreement  admits  of 
either  construction  the  acts  and  declaration  of  the  parties 
may  be  introduced,  as  indications  of  their  intention  and 
their  understanding  of  the  agreement.**  Entry  into  pos- 
session and  payment  of  rent  would  create  a  tenancy  under 
a  written  instrument,  which  otherwise  would  be  construed 
to  be  only  a  contract  for  a  future  lease.*° 

§  137.  Acceptance  of  lease  necessary. —  In  order  that  the 
lessor  may  be  divested  of  his  possession  and  of  his  rights 
incident  to  possession,  and  the  lessee  be  bound  by  the  terms 

N.  Y.  44;  Morgan  v.  Bissell,  3  Taunt.  65;  Haven  v.  Wakefield,  39  111. 
509. 

*3  Alderman  v.  Neate,  4  M.  &  W.  719;  Jackson  v.  Kisselbrack,  10 
Johns.  336;  The  People  V.  Gillis,  24  Wend.  201;  Jackson  v.  Myers,  3 
Johns.  395;  Bacon  v.  Bowdoin,  22  Pick.  401;  Jackson  V.  Eldridge, 
3  Story  325;  Aiken  v.  Smith,  21  Vt.  272.  In  Buell  v.  Cork,  4  Conn. 
238,  it  was  held  to  be  a  contract  for  a  lease,  because  the  consent  of 
a  third  person  was  required  to  make  a  valid  lease;  and  in  Jackson 
V.  Delacroix,  2  Wend.  433,  where  the  instrument  contained  a  state- 
ment that  alterations  were  expected  to  be  made  in  the  terms,  it  was 
held  to  be  a  contract  for  a  future  lease.  See  Poole  v.  Bently,  12  East 
168;  Jones  v.  Reynolds,  1  Q.  B.  517;  Doe  v.  Benjamin,  9  A.  &  E.  644; 
Chapman  v.  Towner,  6  M.  &  W.  100.  In  Thornton  v.  Payne,  5  Johns. 
74,  the  court  say:  "  In  every  case  decided  in  the  English  courts  where 
agreements  have  been  adjudged  not  to  operate  by  passing  an  interest, 
but  to  rest  in  contract,  there  has  been  either  an  express  agreement  for  a 
future  lease,  or  construing  the  agreement  to  be  a  lease  in  prcesenti 
would  work  a  forfeiture,  or  the  terms  have  not  been  fully  settled,  and 
something  further  was  to  be  done."  The  presumption  is  always  in  favor 
of  its  being  a  present  lease,  in  stead  af  a  contract  for  a  future  lease. 

**  Chapman  v.  Black,  4  Bing.  N.  C.  187 ;  Alderman  v.  Neate,  4  M.  & 
W.  704;  Doe  v.  Ashburner,  5  T.  R.  163. 

♦sChenny  v.  Newberry,  67  Cal.  125;  Austin  v.  Coal  Co.,  72  Mo.  535; 
Ver  Steeg  v.  Becker-Moore  Co.    (Mo.  1904),  80  S.  W.  Rep.  346. 

173 


§    139  ESTATES  FOR  YEARS.  [PART  I. 

of  the  lease,  acceptance  by  the  latter  must  be  shown.  Where 
it  operates  entirely  to  his  benefit,  his  acceptance  may  be 
presumed;  while  in  other  cases  it  may  be  inferred  from  acts, 
such  as  entry  into  possession  and  the  like,  as  well  as  es- 
tablished by  words  of  formal  acceptance.*" 

§  138.  Relation  of  landlord  and  tenant. —  As  soon  as  a  lease 
has  been  delivered  and  accepted  by  parties  competent  to 
contract,*^  a  relation  is  established  between  .the  lessor  and 
lessee  which  is  known  as  that  of  landlord  and  tenant.  A 
privity  of  estate  and  a  tenure  are  established,  which  bind 
the  parties  to  each  other  in  respect  to  the  duties  imposed 
by  the  law  and  the  implied  covenants.  This  o^igation  exists 
no  longer  than  does  the  relation  of  landlord  and  tenant, 
while  the  obligation  imposed  and  created  by  the  express 
terms  and  provisions  of  the  instrument  rest  upon  privity  of 
contract,  and  survive  the  dissolution  of  such  relation.*^  The 
lessee,  however,  does  not  become  liable  on  his  covenant  to 
pay  rent  until  the  lessor  has  put  him  into  possession  of  the 
premises.*' 

§  139.  Assigrnment  suid  subletting. —  Unless  restrained  by  a 
covenant  or  changed  by  statute,  the  lessee  can  assign  his  term 
or  grant  a  sublease  of  the  same  without  let  or  hindrance  of 
the  lessor.'"    And  a  restriction  against  assignment  does  not 

<"  Maynard  v.  Maynard,  10  Mass.  456;  Hedge  v.  Drew,  12  Pick.  141; 
Kramer  v.  Cook,  7  Gray  550;  Jackson  V.  Dunlap,  1  Johns.  Cas.  114; 
Jackson  v.  Bodle,  20  Johns.  184;  Jackson  v.  Richards,  6  Cow.  617. 

47  See  post,  Sees.  549,  550,  551,  569-571,  for  a  discussion  of  the  sub- 
jects, delivery  and  competency  of  parties. 

<8  1  Wahsburn  on  Real  Prop.  468,  469. 

49Kean  v.  Kolkschneider,  21  Mo.  App.  538;  Austin  v.  Coal  Co.,  72 
Mo.  535;  4  Kent's  Com.  (11  ed.)  106;  1  Piatt's  Leas.  22;  Townsend  v. 
Nickerson  Co.,  117  Mass.  501. 

BO  King  V.  Aldborough,  1  East  597;  Roe  v.  Sales,  1  M.  &  Sel.  297; 
Taylor's  L.  &  T.  22;  1  Washburn  on  Real  Prop.  507,  508;  Cottee  v. 
Richardson,  7  Ex.  Rep.  143;  Brown  v.  Powell,  25  Pa.  St:  329;  Shannon 
r.  Burr.  1  Hilt.  39;  Den  V.  Post,  35  N.  J.  L.  285;  Robinson  v.  Perry,  21 
Ga.  183;  Crommelin  v.  Thiess,  31  Ala  421.  An  unauthorized  assign- 
174 


CH.    VUI.]  ESTATES   FOR    YEARS.  §    139 

prevent  a  subletting,  and  vice  versa.  The  restriction  must 
apply  expressly  to  both  in  order  to  restrain  both.'*^  The  as- 
signment or  sublease  is  subject  to  the  same  requirements  of 
the  Statute  of  Frauds,  as  the  original  lease.°^  An  assign- 
ment is  effected,  whenever  the  entire  term  is  disposed  of, 
leaving  nothing  in  the  lessee  by  way  of  a  reversion.  And  a 
grant  will  be  considered  and  treated  as  an  assignment, 
whether  it  be  in  the  form  of  a  new  lease,  or  merely  a  trans- 
fer of  the  old  lease.  The  reservation  of  a  different  rent  does 
not  make  the  transfer  a  subletting.**^  The  decisive  question 
is,  whether  there  is  a  reversion  left  in  the  lessee ;  and  a  grant 
of  a  portion  of  the  premises  for  the  entire  term  would  be 
an  assignment,  and  not  a  sublease  of  such  portion.'*  But 
if  the  whole,  or  only  a  part  of  the  premises  be  demised  for  a 
term  of  shorter  duration  than  that  of  the  lessee,  it  is  a  sub- 

ment  or  subletting  of  the  leased  premises,  is  voidable,  at  the  option  of 
the  lessor.  Scott  v.  Slaughter  (Tex.  1904),  80  S.  W.  Rep.  643;  Granite 
Bldg.  Corp.  V.  Green,  25  R.  I.  580,  57  Atl.  Rep.  649;  Calvert  t;.  Hobbs. 
107  Mo.  App.  7,  80  S.  W.  Rep.  681;  Peer  V.  Wadsworth  (N.  J.  Ch. 
1904),  58  Atl.  Rep.  379;  Teater  v.  King,  35  Wash.  138,  76  Pac.  Rep. 
688;  Slaughter  v.  Coke  Co.  (Tex.  1904),  79  S.  W.  Rep.  863.  But  see, 
for  estoppel  of  lessor  to  deny  validity  of  assignment  or  subletting, 
Warner  r.  Cochrane,  128  Fed.  Rep.  553,  63  Cir.  Ct.  App.  207. 

51  Greenaway  v.  Adams,  12  Ves.  400;  Beardman  v.  Wilson,  L.  R.  4  C. 
B.  57;  Lynde  v.  Hough,  27  Barb.  415;  Den  t\  Post,  25  N.  J.  L.  285; 
Field  t'.  Mills,  33  N.  J.  L.  254;  Hargrave  v.  King,  5  Ired.  Eq.  430. 
Taking  boarders  is  neither  a  subletting  nor  an  assignment  according  to 
a  late  case.  Stanton  v.  Allen  (S.  C),  10  S.  E.  Rep.  878.  A  covenant 
against  assignment  is  not  violated  by  the  possession  of  a  trustee  in 
bankruptcy.     In  re  Bush,  126  Fed.  Rep.  878. 

52  1  Washburn  on  Real  Prop.  508 ;  Williams  on  Real  Prop.  402. 

53  Sexton  V.  Chicago  Storage  Co.,  129  111.  318. 

54  Palmer  v.  Ei" wards,  Dougl.  187,  note;  Parmenter  v.  Webber,  8 
Taunt.  593;  Boardman  v.  Wilson,  L.  R.  4  C.  B.  56;  Wollaston  r.  Hake- 
well,  3  M.  &  G.  323;  Plush  v.  Diggs,  5  Bligh  (N.  S.)  31;  Pollack  r. 
Stacy,  9  Q.  B.  1033;  Sanders  t'.  Partridge,  108  Mass.  558;  Lynde  f. 
Hough,  27  Barb.  145;  Patten  r.  Deshon,  1  Gray  325;  Sands  v.  Hughes, 
53  N.  Y.  293;  Bedford  V.  Terhune,  30  N.  Y.  457.  But  see  Fulton  v. 
Stuart,  2  Ohio  369,  and  McNeil  v.  Kendall,  128  Mass.  245,  35  Am.  Rep. 
373,  where  transfer  of  a  part  of  premises  for  the  whole  term  was  con- 
sidered a  subletting. 

175 


§  139  ESTATES  FOR  VEARS.  [PART  I. 

letting.  And  the  most  inconsiderable  reversion,  such  as  the 
last  day  of  the  term,  would  be  sufficient  to  give  the  grant 
the  character  of  an  under-lease,'*'*  It  has  been  held  and  like- 
wise denied,  that  the  reservation  of  a  right  of  entry  for 
breach  of  a  condition  would  be  such  a  reservation  of  a  re- 
version, as  to  make  the  demise  a  subletting.  The  better  opin- 
ion is  that  a  right  of  entry  will  have  no  such  effect,  if  the 
whole  term  has  been  granted.'**  If  the  demise  is  an  as- 
signment, the  assignee  enters  into  the  privity  of  estate  with 
the  original  lessor  and  becomes  thereby  liable  to  him  on 
the  covenants  of  the  original  lease,  which  run  with  and  bind 
the  land.  But  his  liability  only  continues  during  the  con- 
tinued maintainance  of  this  privity  of  estate,  and  does  not 
extend  to  breaches  occurring  before  assignment  to  him,  or 
after  his  alienation   of  the   term.'*^     But   he   cannot   escape 

55  Post  V.  Kearney,  2  N.  Y.  394;  Collins  v.  Hasbrouck,  56  N.  Y. 
157,  15  Am.  Law  Rep.  407;  Astor  v.  Miller,  2  Paige  68;  Martin  V. 
O'Connor,  43  N.  Y.  522;  Linden  v.  Hepburn,  3  Sandf.  668;  Patten  V. 
Deshon,  1  Gray  325;  Parmenter  v.  Webber,  8  Taunt.  593;  Pollock  V. 
Stacy,  9  Q.  B.  1033;  Derby  v.  Taylor,  1  East  502;  Sexton  v.  Chicago 
Storage  Co.,  129  111.  318. 

56  That  the  reservation  of  a  right  of  entry  upon  failure  to  pay 
rent  makes  the  transfer  a  subletting,  see  Kearney  V.  Post,  1  Sandf. 
105;  Martin  v.  O'Connor,  43  Barb.  522;  Linden  v.  Hepburn,  3  Sandf. 
670;  Sexton  r.  Chicago  Storage  Co.,  129  111.  318.  In  the  following 
cases  the  rule  is  denied.  2  Prest.  Conv.  124,  125;  Palmer  v.  Edwards, 
Dougl.  187,  note;  Doe  v.  Bateman,  2  B.  &  Aid.  168;  Lloyd  v.  Cozens,  3 
Ashm.  138;  Davis  v.  Morris,  36  N.  Y.  575;  Smiley  v.  Van  Winkle,  6 
Cal.  605.  See  Bedford  V.  Terhune,  30  N.  Y.  457;  Sanders  v.  Partridge, 
108  Mass.  558;  Stewart  v.  Long  Island  R.  R.  Co.,  102  N.  Y.  601,  55 
Am.  Rep.  844.  In  a  note  to  King  v.  Wilson,  5  Man.  &  R.  157,  note,  it  is 
stated  that  there  is  "  neither  principle  nor  authority,  to  preclude  such 
term  or  from  making  an  underlease  for  a  period  commensurate  in  point 
of  computation  with  the  original  term." 

57  Stevenson  v.  Lombard,  2  East  575;  Burnet  v.  Lynch,  5  B.  &  C. 
689;  University  of  Vermont  v.  Joslyn,  21  Vt.  52;  Rowland  v.  Coffin,  12 
Pick.  125;  Graham  v.  Way,  38  Vt.  19;  Davis  v.  Morris,  36  N.  Y.  576 
McKeon  v.  Whitney,  3  Denio  452;  Benson  v.  Bolles,  8  Wend.  175 
Grandin  v.  Carter,  99  Mass.  16;  Sanders  v.  Partridge,  108  Mass.  556 
Walton  V.  Cronly,  14  Wend.  62;  Armstrong  v.  Wheeler,  9  Cow.  89 
Salisbury  v.  Shirley,  66  Cal.  223;  Donelson  v.  Polk,  64  Md.  501;  Os- 

176 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    139 

liability  for  rent  merely  by  abandonment  of  the  possession. 
Nothing  but  alienation  or  a  complete  surrender  to  the  lessor 
would  relieve  the  assignee  from  the  payment  of  rent.^*  The 
fact  that  the  original  lease  contains  a  condition  against  assign- 
ment without  consent  of  lessor  does  not  make  the  assignee 's 
liability  depend  upon  such  consent;  the  lessor  may  waive 
the  performance  of  the  agreement.^®  Actual  entry  into  pos- 
session is  not  necessary  to  attach  such  liability  to  the  assignee 
during  the  time  that  the  term  is  vested  in  him,  except  that 
in  some  States  actual  entry  is  required  in  order  to  render 
the  assignee  liable  on  the  covenant  for  rent.""  Whore  the 
assignment  is  by  way  of  a  mortgage,  actual  entry  is  always 
necessary.®^     If  the  assignment  is  in  violation  of  a  condition, 

wald  r.  Mollett,  29  111.  App.  449;  Rejmolds  r.  Lawton,  8  N.  Y.  S.  403; 
Washington  Nat.  Gas  Co.  v.  Johnson,  123  Pa.  St.  576;  Congrcgationul 
Soc.  r.  Rix  (Vt.),  17  Atl.  Rep.  719. 

58  Dewey  v.  Payne,  19  Neb.  540.  An  assignment  dors  not  relieve  tlie 
original  lessee  from  his  covenant  to  pay  rent.  Rector  r.  Hartford  Devp. 
Co.,  102  111.  App.  554.  But  a  re-assignment,  or  transfer  by  the  assignee, 
relieves  him  from  this  duty.  Springer  v.  Chicago,  etc.,  Co.,  102  111.  App. 
294,  66  N.  E.  Rep.  850. 

50  Sexton  v.  Chicago  Storage  Co.,  129  111.  318. 

floFelch  V.  Taylor,  13  Pick.  130;  Bagley  r.  Freeman,  1  Hilt.  196; 
Smith  V.  Drinker,  17  Mo.  148.  In  New  York,  entry  into  possession  is 
necessary,  to  render  liable  on  covenant  for  rent.  Damainville  r.  Mann, 
32  N.  Y.  197;  O'Rourke  v.  Brown,  54  N.  Y.  Super.  Ct.  384;  O'Rouike 
V.  H.  P.  Cooper  &  Co.  34  N.  \^  Super.  Ct.  389.  In  Massachusetts  the 
assignee  is  liable  for  rent  without  entry,  if  the  assignment  is  by  deed. 
Sanders  v.  Partridge,  108  Mass.  556;  Guienzberg  v.  Claude,  28  Mo. 
App.  258.  In  Illinois  entry  is  never  necessary.  Babcock  v.  Scoville,  56 
111.  466. 

01  Williams  V.  Bosanquet,  1  Brod.  &  B.  238;  Felch  v.  Taylor.  13  Pick. 
133;  Pingrey  v.  Watkins,  15  Vt.  488;  Graham  V.  Way,  38  Vt.  24; 
Walton  r.  Cronly,  14  Wend.  63 ;  Astor  r.  Hoyt,  5  Wend.  603 ;  Astor  v. 
Miller,  2  Paige  68;  McKee  V.  Angelrodt,  16  Mo.  283.  In  Maryland, 
entry  is  not  necessary.  Mayhew  v.  Hardisty,  8  Md.  479.  See  also.  Cal- 
vert V.  Bradley,  16  How,  (U.  S.)  593;  Salisbury  v.  Shirley,  66  Cal.  223; 
Donelson  r.  Polk,  64  Md.  501;  Oswald  r.  Mollett,  29  111.  App.  449; 
Reynolds  v.  Lawton,  8  N.  Y.  S.  403 ;  Washington  Nat.  Gas  Co.  v.  John- 
son, 123  Pa.  St.  576;  Congregational  Soc.  v.  Rix  (Vt.),  17  Atl.  Kcp. 
719. 

12  177 


§  139  ESTATES  FOR  YEARS.  [PART  I. 

the  lessee  cannot  be  compelled  to  assume  the  obligations  of  a 
tenant,  if  he  abandons  the  possession  or  repudiates  the  ten- 
ancy.^'* If  the  demise  be  only  a  sub-lease,  the  privity  of  es- 
tate between  the  lessee  and  the  original  lessor  is  still  main- 
tained, and  the  sublessee  is  only  liable  to  the  intermediate 
lessor  on  the  covenants  in  the  lease  between  them,  although 
he  takes  his  title  subject  to  the  right  of  the  original  lessor 
to  effect  a  forfeiture  of  the  estate  for  the  breach  of  the  lessee's 
covenant  of  rent.^*  And  a  reservation  of  rent  by  the  in- 
termediate lessor,  if  it  is  an  assignment,  will  not  give  him 
a  right  to  distrain  for  it.  His  remedy  is  an  action  to  re- 
cover on  the  covenant.®* 

In  order  that  the  assignee  may  be  protected  against  any 
ouster  by  the  original  lessor,  for  failure  of  the  lessee  to  pay 
the  rent  due  to  him,  it  has  been  held  that,  before  the  lessee 
can  recover  of  his  assignee,  he  must  show  that  the  lessor's 
claim  has  been  satisfied.  The  assignor  or  original  lessee  is 
not  released  from  his  express  covenant  to  pay  rent,  and  hence 
he  may  still  be  required  to  pay  the  rent,  notwithstanding 
the  lessor's  acceptance  of  the  assignee  as  a  tenant.  But  if 
he  was  required  to  pay  it,  the  assignor  could  recover  it  of 
the  assignee,  on  the  principal  of  subrogation.''^  And  if  the 
rent  reserved  in  the  second  lease  be  larger  than  what  is  re- 
served in  the  first,  the  parties  may,  by  agreement,  provide 
that  the  lessee  shall  recover  only  the  difference,  while  the 

82  Hynes  v.  Ecker,  34  Mo.  App.  650.  But  see  contra,  Chautauqua 
Assembly  v.  Ailing,  46  Hun  582.  Collection  of  rent  from  an  assignee  in 
possession,  under  a  voidable  assignment,  is  a  ratification  of  the  as- 
signment.    Anderson  v.  Comeor,   (N.  Y.  1904)   87  N.  Y.  S.  449. 

«3Hulet  V.  Stockwell,  27  Mo.  App.  328;  In  re  Strasburger's  Estate, 
56  Hun  164;  Otis  v.  Conway,  114  N.  Y.  13. 

6<  Hicks  V.  Bowling,  1  Ld.  Raym.  99;  Parmenter  v.  Webber,  8  Taunt. 
593;  Davis  v.  Morris,  36  N.  Y.  574. 

65  Lehman  v.  Dreyfus,  37  La.  An.  587;  Farrington  v.  Kimball,  126 
Miss.  313,  30  Am.  Rep.  680.  Collection  of  rent  from  an  assignee  does 
not  efTect  lessor's  right  to  proceed  against  his  lessee,  for  rent.  Rector 
V.  Hartford  Co.,  102  111.  App.  554. 

178 


CH.   VIII.]  ESTATES   FOR   YEARS.  §    140 

sublessee  pays  the  original  rent  to  the  lessor.®®  Without  ex- 
press agreement,  the  lessor  cannot  sue  the  sublessee  for  rent. 
There  is  neither  privity  of  estate  nor  privity  of  contract  be- 
tween them  to  sustain  the  action.®^  But  if  the  original  lease 
is  surrendered  to  the  lessor,  without  prejudice  to  under- 
lessees,  the  lessor  may  recover  subsequently  accruing  rent 
from  the  sublessees.®^ 

§  140.  Involuntary  alienation. —  A  leasehold  estate  is  alsd 
subject  to  sale  under  execution,  and  under  the  bankrupt  and 
insolvent  laws  passes  to  the  assignee,  like  other  personal 
property,  for  the  satisfaction  of  the  lessee's  debts.®^  And 
such  assignees  become  liable  on  the  covenants  of  the  lease, 
if  they  accept  the  assignment,  and  exercise  the  rights  of 
ownership  over  it.'"  But  the  assignees  have  the  right  within 
a  reasonable  time  to  elect  whether  they  shall  accept  or  re- 
ject the  lease.  The  mere  fact  that  the  lease  is  properly  in- 
cluded in  the  assignment  will  not  render  them  liable  on  the 
covenants.'^  But  the  assignee's  rejection  of  the  lease  does 
not  release  the  lessee's  liability  under  the  lease,  even  though 
the  lessor  should  enter  into  possession,  in  consequence  of  the 
abandonment  of  the  premises.'^  Involuntary  alienation  may 
be  prevented,  if  it  is  explicitly  stated  in  the  lease,  that  suchr, 

6«  Wollaston  v.  Hakewell,  3  M.  &  G.  323;  Smith  v.  Mapleback,  1  T.  R. , 
441. 

87Halford  v.  Hatch,  Dougl,  187;  Grandin  v.  Carter,  98  Mass.  16;  see 
Foster  r.  Reid   ( Iowa ) ,  42  N.  W.  Rep.  649. 

«8Beal  V.  Boston,  etc.,  Car.  Co.,  125  Mass.  157,  28  Am.  Rep.  216; 
Bailey  v.  Richardson,  66  Cal.  416;  Appleton  V.  Ames  (Mass.),  22  N. 
E.  Rep.  69;  Otis  v.  Conway,  114  N.  Y.  13. 

«»  Williams  on  Real  Prop.  404;  Williams  on  Pers.  Prop.   (9  ed.)  56; 

TO  White  V.  Hunt,  L.  R.  6  Exch.  32;  Quackenboss  v.  Clarke,  12  Wend. 
555;   1  Washburn  on  Real  Prop.  523,  524. 

71  Smythe  v.  North,  L.  R.  7  Exch.  242 ;  Carter  v.  Warne,  4  C.  «&  P. 
191 ;  Copeland  v.  Stephens,  1  B.  &  Aid.  593 ;  Pratt  v.  Levan,  1  Miles 
358;  Blake  r.  Sanderson,  1  Gray  332;  Journegy  v.  Brackley,  1  Hilt. 
448;  Kendrick  v.  Judas,  5  Caines  25;  Carter  v.  Hammett,  18  Barb.  608; 
Sparhawk  r.  Broome,  6  Binn.  256;  Dorrance  v.  Jones,  27  Ala.  630. 

T2  Stewart  v.  Sprague,  76  Mich.  184. 

179 


r 


§    142  ESTATES   FOR    YEARS.  [PART   I. 

a  mode  of  alienation  will  work  a  forfeiture  of  the  teiiu.  =' 
But  a  simple  restriction  against  alienation  does  not  apply 
to  involuntary  alienation.  Nothing  short  of  an  actual  and 
voluntary  transfer  of  the  lessee's  estate  will  ordinarily  be 
considered  a  breach  of  a  condition  or  covenant  against  as- 
signment.^* 

§  141.  Disposition  of  terms  after  death  of  tenant. —  A  term, 
like  other  personal  property,  can  be  bequeathed,  or  if  the 
tenant  dies  without  making  any  disposition,  it  descends  to 
the  executor  or  administrator,  who  takes  it  and  disposes 
of  it  like  any  other  chattel,  unless  the  restriction  against 
alienation  expressly  includes  the  personal  representatives  in 
such  prohibition.^'  And  the  right  to  devise  a  leasehold  is 
not  taken  away  by  a  general  condition  in  restraint  of  alien- 
ation, although  it  may  be  by  express  limitation.''^ 

§  142.  Covenants  in  a  lease  in  general. —  In  strict,  technical 
language,  a  covenant  is  any  agreement  which  is  executed  un- 
der the  solemnity  of  a  seal;  but  in  this  connection  it  is  used 
to   signify   the   agreements,   which    appear   in   a   lease,   and 

73  Roe  V.  Galliers,  2  T.  R.  133;  Davis  v.  Eyton,  7  Bing.  154.  See  Doe 
r.  Hawks,  2  East  481;  Doe  v.  Clark,  8  East  185;  Doe  v.  David,  5 
Tyrw.  125;  Cooper  v.  Wyatt,  5  Madd.  482;  Yarnold  v.  Moorehouse,  1  R. 
&  Myl.  346. 

74  Philpot  V.  Hoare,  2  Atk.  219;  Doe  v.  Bevan,  3  M.  &  S.  353;  Doe  v. 
Carter,  8  T.  R.  300;  Lear  f.  Leggett,  1  Russ.  &  M.  690;  Smith  v.  Put- 
nam, 3  Pick.  221;  Jackson  v.  Corlis,  7  Johns.  531;  Moore  v.  Pitts,  53  N. 
Y.  85 ;  Collins  V.  Hasbrouck,  56  N.  Y.  157,  15  Am.  Rep.  407 ;  Hargrave 
V.  King,  5  Ired.  Eq.  430;  Munkvvitz  v.  Uhlig,  64  Wis.  380;  Farnum  V. 
Hefner,  79  Cal.  575.  But  see  contra,  Holliday  v.  Achle,  99  Mo.  273. 
But  a  voluntary  assignment  under  the  bankrupt  and  insolvent  laws  is 
not  an  involuntary  alienation.  See  1  Pars.  Con.  506;  In  re  Bush 
(1904),   126  Fed.  Rep.  878. 

75  Taylor's  Land  &  T.,  Sec.  408;  Seers  v.  Hind,  1  Ves.  jr.  295;  Keating 
V.  Condon,  68  Pa.  St.  75;  1  Washburn  on  Real  Prop.  579;  Hellwig  v. 
Bachman,  26  111.  App.  165;  Jacquat  v.  Bachman,  26  111.  App.  169. 

78  Fox  V.  Swann,  Styles  483;  Berry  v.  Taunton,  Cro.  Eliz.  331;  Dum- 
per V.  Symmons,  Ih.  816;  Charles  v.  Byrd,  29  S.  C.  544. 
180 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    143 

which  bind  the  parties  thereto,  whether  the  lease  is  under 
seal  or  not.^^  And  it  may  be  said  generally,  that  unless  the 
performance  of  a  covenant  by  one  party  to  the  lease  is  made, 
expressly  or  by  necessary  implication,  to  depend  upon  the 
performance  of  some  other  covenant  by  the  other  party,  cove- 
nants in  leases  are  independent  of  each  other,  and  the  breach 
of  one  covenant  by  one  party  is  no  bar  to  his  action  against 
the  other  party  for  the  breach  of  another  covenant.^* 

§  143.  Contintied  —  Express  and  implied  covenants. —  Cove- 
nants may  be  express  or  implied.  There  is  apparently  no 
restriction  upon  the  number  and  character  of  the  express 
covenants  which  may  be  inserted  in  a  lease.  The  parties  may 
by  them  change  altogether  their  common-law  liability  under 
the  lease  and  substitute  for  the  general  rule  of  law  express 
limitations  and  obligations.^"  Implied  covenants  are  those 
which  arise  by  construction  of  law  from  the  employment  of 
certain  words  and  forms  of  expression,  such  as  "grant," 
"lease,"  "demise,"  ete.*°    An  important  distinction  exists 

"Hayne  v.  Cummings,  16  C.  B.  (N.  S.)  426.  No  reference  is  made 
here  to  the  common-law  form  of  the  action  to  be  used  in  the  enforce- 
ment of  covenants  in  leases.  The  action  of  covenant  would  lie  only  in 
the  case  of  an  agreement  under  seal,  signed  and  sealed  by  the  covenan- 
tor. See  Goodwin  V.  Gilbert,  9  Mass.  5i0;  Pike  v.  Brown,  7  Cush.  133; 
Johnson  r.  Mussey,  45  Vt.  419;  Hinsdale  v.  Humphrey,  15  Conn.  431; 
Gale  V.  Nixon,  6  Cow.  445;  Maule  v.  Weaver,  7  Pa.  St.  329. 

78  Strohmeyer  t*.  Zeppenfeld,  28  Mo,  App.  268;  Butler  v.  Manney,  52 
Mo.  497.  An  assignee  cannot  sue  the  lessee  for  breach  of  a  covenant  to 
repair,  where  the  violation  occurred  prior  to  his  entry.  Foss  v.  Staun- 
ton (Vt.  1904),  57  Atl.  Rep.  942.  The  violation  of  a  covenant  to  repair, 
will  not  support  an  action  in  tort,  against  the  landlord.  Spero  v.  Levy, 
86  N.  Y.  S.  869,  43  Misc.  Rep.  24;  Aiken  V.  Perry,  119  Ga.  263,  46  S.  E. 
Rep.  93.  In  I..ouisiana,  while  a  lessor  can  be  compelled  to  repair,  he 
cannot  be  compelled  to  rebuild,  in  case  of  destruction  of  the  buildings, 
by  fire.     Jackson  v.  Doll,  .09  Land,  230,  33  So.  Rep.  207. 

79  1   Washburn  on  Real  Prop.  505. 

80  1  Washburn  on  Real  Prop.  487.  But  the  tendency  of  modern  deci- 
sions is  against  implying  covenants,  which  might  have  been  expressed, 
and  this  is  particularly  the  case  where  the  deed  appears  to  contain  all 
the  stipulations  and  conditions  which  the  parties  intended.     See  Aspen 

181 


§   143  ESTATES   FOR    YEARS.  [PART   I. 

between  express  and  implied  covenants  in  respect  to  the 
effect  of  assignment  of  the  lease  upon  the  liability  of  the 
lessee.  He  remains  bound  by  all  the  express  covenants  con- 
tained in  the  lease.  His  liability  under  them  rests  upon  ex- 
press personal  obligation..  But  the  liability  under  an  implied 
covenant  arises  from  the  privity  of  estate  created  between 
the  parties  by  the  possession  of  the  lessee  under  the  lease. 
The  lessee's  liability,  therefore,  on  implied  covenants  deter- 
mines with  the  destruction  of  the  privity  of  estate  by  as- 
signment or  otherwise.*^  But  acceptance  of  the  assignee  as  a 
tenant  by  the  original  lessor  is  necessary  in  order  to  absolve 
the  lessee  from  his  liability  for  rent  under  an  implied  cove- 

V.  Austin,  5  Ad.  &  El.  (N.  S.)  684;  Sheets  v.  Selden,  7  Wall.  423.  It 
has  been  held  that  the  covenant  for  quiet  enjoyment  is  implied  from  the 
use  of  any  operative  words.  Mack  v.  Patchin,  42  N.  Y.  167,  1  Am.  Rep. 
506.  But,  generally,  "  lease  "  and  "  demise  "  are  the  only  words  which 
will  raise  implied  covenants.  See  Tone  i'.  Bruce,  8  Paige  597 ;  Mayor  v. 
Mabie,  14  N.  Y.  160;  Maule  v.  Ashmead,  20  Pa.  St.  482;  Lovering  v. 
Lovering,  13  N.  H.  518;  Hamilton  v.  Wright,  28  Mo.  199;  Wake  v. 
Halligan,  16  111.  507;  Playter  V.  Cunningham,  21  Cal.  233. 

>'i  Auriol  V.  Mills,  4  T.  R.  98;  Thursby  v.  Plant,  1  Saund.  241  b;  Way 
V.  Reed,  6  Allen  364 ;  Kimpton  v.  Walker,  9  Vt.  199 ;  Sutliff e  v.  Atwood, 
15  Ohio  St.  186;  Wall  v  Hinds,  4  Gray  250;  Post  17.  Jackson,  17  Johns. 
239;  Quackenboss  V.  Clark,  12  Wend.  556;  Ghegan  v.  Young,  23  Pa, 
St.  18;  Howland  V.  Coffin,  12  Pick.  125;  Lodge  v.  White,  30  Ohio  St. 
569,  27  Am.  Rep.  492 ;  Whetstone  v.  McCartney,  32  Mo.  App.  430 ;  Guinz- 
burg  V.  Claude,  28  Mo.  App.  258;  Foss  v.  Staunton  (Vt.  1904),  57 
Atl.  Rep.  942.  There  is  an  implied  covenant  that  premises  will  be  fit 
for  occupancy  at  commencement  of  term,  in  New  York.  Paugh  &  Co.  v. 
Ceremido,  88  N.  Y.  S.  1054.  But  see,  for  contrary  rule,  in  Massa- 
chusetts, Roth  V.  Adams,  185  Mass.  341,  70  N.  E.  Rep.  445.  In  some 
States,  where  the  premises  demised  are  described  as  used  for  a  par- 
ticular purpose,  there  is  an  implied  warranty  of  fitness  for  the  pur- 
poses of  the  demise.  Hunter  v.  Porter  (Idaho  1904),  77  Pac.  Rep.  434. 
But  unless  provided  by  contract  or  statute,  there  is  no  implied  war- 
ranty of  fitness  in  Montana  (Landt  v.  Schneider,  1904,  77  Pac.  Rep. 
307)  ;  or  New  York  (Ducker  v.  Del  Genovese,  87  N.  Y.  S.  889,  93  App. 
Div.  575).  And  see,  generally,  as  to  implied  covenants,  Clifton  V.  Mon- 
tague, 33  L.  R.  A.  449  and  note. 


182 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    144 

nant.®^      The    following   covenants   are    usually    implied    in 
every  lease. 

§  144.  Implied  covenant  for  quiet  enjoyment. — This  is  a 
covenant  for  the  quiet  enjoyment  of  the  premises  by  the 
lessee.  It  is  not  an  absolute  covenant  for  the  protection  of 
his  possession  against  the  acts  of  the  whole  world.  It  ex- 
tends only  to  the  acts  of  the  landlord  and  of  strangers  as- 
serting a  paramount  title.  The  lessor  does  not  warrant 
against  the  acts  of  strangers  who  do  not  claim  a  superior 
title.®^  But  in  order  that  his  own  acts  may  constitute  a 
breach  of  the  covenant,  they  must  amount  to  an  eviction.^* 
A  mere  fugitive  trespass  by  the  lessor  does  not  work  a  breach 
of  the  covenant  for  quiet  enjoyment.**^  But  a  landlord  is 
guilty  of  neither  trespass  nor  eviction  when  he  enters  for 
the   purpose  of  making  repairs.®®      When   the   covenant  of 

82Auriol  V.  Mills,  4  T.  R.  98-  Thursby  v.  Plant,  1  Saund.  240; 
Fletcher  v.  McFarlane,  12  Mass.  43;  Wall  v.  Hinds,  4  Gray  256;  Salis- 
bury V.  Shirley,  66  Cal.  223. 

83  Morse  v.  Goddard,  13  Mete.  177;  Ross  v.  Dysart,  33  Pa.  St.  452; 
Moore  v.  Webber,  71  Pa.  St.  429,  10  Am.  Rep.  708;  Edgerton  v.  Page,  1 
Hilt.  333;  Dexter  v.  Manley,  4  Cush.  24;  Sherman  V.  Williams,  113 
Mass.  481,  18  Am.  P^p.  522;  Mack  v.  Patchin,  42  N.  Y.  167,  1  Am.  Rep. 
506 ;  Branger  v.  Manciet,  30  Cal.  626 ;  Schuylkill,  etc.,  R.  R.  v.  Schmoele, 
57  Pa.  St.  273;  Barneycastle  v.  Walker,  92  N.  C.  198;  Duncklee  v.  Web- 
ber (Mass.),  24  N.  E.  Rep.  1082;  McAlester  V.  Landers,  70  Cal.  79. 
There  is  an  implied  covenant  for  quiet  enjoyment  in  the  grant  of  an  in- 
corporeal, as  well  as  of  a  corporeal,  hereditament.  Mayor  v.  Mabie,  13 
N.  Y.  157.  To  support  the  implied  covenant,  the  lease  must  be  a  valid 
one.     Webster  v.  Conley,  46  HI.  17. 

f>*  See  post,  Sec.  609. 

86  Avery  v.  Dougherty,  102  Ind.  443. 

8«  International  Press  Ass'n  v.  Brooks,  30  111.  App.  114;  WTiite  v. 
Thurber,  55  Hun  447.  No  breach  of  a  covenant  for  quiet  enjoyment 
arises  where  the  entry  is  under  eminent  domain  proceedings.  Pabst 
Brewing  Co.  t?.  Thorley,  127  Fed.  Rep.  439.  There  must  be  an  actual 
or  constructive  eviction,  to  constitute  a  violation  of  the  covenant  for 
quiet  enjoyment.  Roth  r.  Adams,  185  Mass.  341,  70  N.  E.  Rep.  445; 
Fuller  Co.  v.  Manhattan  Const.  Co.,  88  N.  Y.  S.  1049;  Mason  v.  Lande- 
roth    (N.  Y.  1903),  84  N.  Y.  S.  740,  88  App.  Div.  38;   Greenwood  t?. 

183 


§    146  ESTATES   FOR   YEARS.  [PART   I. 

quiet  enjoyment  is  broken,  the  obligation  for  payment  of  rent 
is  suspended,  and  the  presumption  in  ordinary  cases  is,  that 
the  tenant  suffers  no  damage,  the  rent  being  an  equivalent 
of  the  use.     If  the  lessee  claims  damage,  he  must  show  it.*'^ 

§  145.  Implied  covenant  for  rent. —  The  covenant  for  rent 
is  implied  from  the  very  reservation  in  the  lease  of  a  certain 
stipulated  sum.  This  implied  covenant  is,  of  course,  separate 
and  distinct  from  any  express  contracts  the  lessor  may  enter 
into.*' 

§  146.  Implied  covenant  against  waste. —  By  the  very  ac- 
ceptance of  the  lease,  the  lessee  assumes  an  implied  obli- 
gation to  use  the  premises  in  a  husbandlike  manner,  and  to 
keep  the  buildings  and  other  structures  in  repair;  and  a 
failure  on  his  part  to  do  so,  subjects  him  to  an  action  of 
waste.*^  And  where  the  lessor  is  obliged  by  the  law  to  re- 
pair, in  a  case  where  the  lessee  has  covenanted  to  repair, 
either  expressly  or  by  implication,  the  lessor  can  recover  of 
the  lessee  in  an  appropriate  action  for  the  expense  of  such 
repairs.""      For    although   the    landlord    is   not   under    obli- 

Wetterau,  84  N.  Y.  S.  287.  A  physical  expulsion  of  the  tenant  is  not 
always  essential  to  constitute  an  eviction.  The  intent  of  the  landlord 
is  a  question  of  fact  for  the  jury.  Dennick  v.  Ekdahl,  102  111.  App. 
199.  When  wrongfully  evicted,  a  tenant  can  recover  for  all  injury  to 
his  business  and  loss  of  profits,  when  established  with  reasonable  cer- 
tainty.    Murphy  v.  Bldg.  Co.,  90  Mo.  App.  621. 

STLarkin  v.  Misland,  100  N.  Y.  212;  Duncklee  v.  Webber  (Mass.),  24 
N.  E.  Rep.  1082. 

ssKimpton  v.  Walber,  9  Vet.  198;  Van  Rennselaer  v.  Smith,  27 
Barb,  140;  Royer  v.  Ake,  3  Pa.  3  Pa.  St.  461;  1  Washburn  on  Real 
Prop.  492.  Unless  the  tenant  is  put  in  possession  of  all  the  demised 
premises,  he  can  refuse  to  pay  rent  on  the  whole.  Sullivan  v.  Smitt,  87 
N.  Y.  S.  714,  93  App.  Div.  469;  Smith  v.  Barber,  89  N.  Y.  S.  317,  96 
App.  Div.  236. 

soThorndike  v.  Burrage,  111  Mass.  532;  1  Washburn  on  Real  Prop. 
492;  Fenton  v.  Montgomery,  19  Mo.  App.  156;  Hoyleman  v.  Kanawha, 
etc.,  Ry.  Co.,  33  W.  Va.  489.  See  ante.  Sees.  60-64,  as  to  what  acts. 
constitute  waste. 

80  Hull  V.  Bums,  17  Abb.  N.  C.  317. 
184 


CH.    Vm.]  ESTATES   FOR   YEARS.  §    146 

gation  to  tenant  to  repair,  if  the  tenant  does  not  repair, 
and  injury  results  to  third  persons,  the  landlord  has  been 
held  liable.*^  Where  the  leased  premises  consisted  of  a  part 
of  a  tenement  or  other  building,  the  general  stairway  and 
walls,  and  roof,  are  not  included  within  the  lease,  so  as  to 
impose  upon  the  lessee  the  duty  of  keeping  them  in  repair. 
The  lessor  is  liable  for  any  damage  which  may  result  from 
such  sources;  not  as  lessor,  but  in  general,  as  owner  of  the 
property."^  And  in  order  that  the  lessor  may  in  such  a  ease 
be  held  liable,  it  need  not  be  shown  that  he  had  knowledge 
of  the  need  of  repairs.'^  The  lessor,  in  the  absence  of  an 
express  covenant,  is  not  bound  to  make  repairs  upon  the 
leased  premises.  But  if  he  does  undertake  to  make  such 
repairs,  he  is  bound  by  an  implied  covenant  to  do  it  in  a 
workman  like  manner,  without  injury  to  the  lessee.®*     The 

»i  Marshall  v.  Cohen,  44  Ga.  489,  9  Am.  Rep.  170;  Riley  v.  Simpson, 
83  Cal.  217;  Catts  i'.  Simpson,  83  Cal.  217,  s.  c.  23  Pac.  Rep.  294; 
O'SuUivan  v.  Norwood,  14  Daly  286;  Tomle  v.  Hampton,  28  111.  App. 
142,  s.  c.  129  111.  379;  Folsom  v.  Lewis  (Ga.),  11  S.  E.  Rep.  606; 
Hungerford  r.  Bent,  55  Hun  3;  Timlin  v.  Standard  Oil  Co..  54  Hun 
44.  But  see  contra,  Kalis  v.  Shattock,  69  Cal.  593;  Ahem  v.  Steele,  115 
N.  Y.  203.  - 

82  Ward  V.  Eagan,  28  Mo.  App.  116;  O'Sullivan  v.  Norwood,  14  Daly 
286;  Fisher  v.  Jansen,  30  111.  App.  91,  8.  c.  128  111.  549;  McGuire  V. 
Joslyn,  10  N.  Y.  S.  384;  Dollard  v.  Roberts,  8  N.  Y.  S.  432;  Lindsey 
V.  Leighton,  150  Mass.  285;  Brennan  v.  Laehat,  14  Daly  197;  Sawyer  V. 
McGillieuddy,  81  Me.  318.  But  see  contra,  Quinn  v.  Perham,  23  N. 
E.  Rep.  735. 

93  Lindsey  v.  Leighton,  150  Mass.  258. 

0*  Gott  V.  Gaudy,  22  Eng.  Law  &  Eq.  173;  Sheets  v.  Selden,  7  Wall. 
423;  Leavitt  v.  Fletcher,  10  Allen  121;  Gill  v.  Middleton,  105  Mass. 
478;  Elliott  V.  Aiken,  45  N.  H.  36;  Doupe  v.  Gcrrin,  45  N.  Y.  119,  6  Am. 
Rep.  47 ;  Post  V.  Vetter,  2  E.  D.  Smith  248 ;  Dexter  v.  King,  8  N.  Y.  S. 
489;  Bumes  v.  Fuchs,  28  Mo.  App.  279;  Simons  v.  Seward,  54  N.  Y. 
Super.  Ct.  406;  Cantrell  v.  Fowler  (S.  C),  10  S.  E.  Rep.  934;  Butler 
r.  Gushing,  46  Hun  521;  Weinstein  V.  Harrison,  66  Tex.  546;  McLean 
V.  Wunder  (Pa.),  19  Atl.  Rep.  749,  s.  c.  26  W.  N.  C.  24;  Wisdom  V. 
Newberry,  30  Mo.  App.  241;  Perez  V.  Rayband,  76  Tex.  191;  Little  r. 
Maoadaras,  29  Mo.  App,  332,  s.  c.  38  Mo.  App.  178;  Gregor  r.  C'ady, 
82  Me.  131.  There  is  no  implied  covenant  on  the  part  of  the  landlord, 
that  the  premises  are  in  a  tenantable  condition.     Jaffe  v.  Harteau,  56  N. 

185 


§    146  ESTATES  FOR  YEARS.  [PART  I. 

lessor,  however,  is  not  liable  on  his  covenant  to  repair  for 
its  breach,  unless  he  has  been  notified  or  learns  of  the  need 
of  repairs  and  fails  to  respond  within  a  reasonable  time  after 
such  notice."  But  if  the  person  injured  be  a  social  or 
business  visitor  of  the  tenant,  or  a  boarder  or  sub-tenant,  the 
lessor  is  not  liable  for  the  injury  unless  he  was  under  a 
covenant  to  repair.®'  The  lessor  or  lessee  may  enter  into 
express  covenants  for  the  repair  of  the  premises  under  all 
circumstances,  and  an  unqualified  covenant  of  this  kind  will 
obligate  the  covenantor  to  repair,  whatever  may  have  caused 
the  damage.®^     But  the  implied  covenant  of  the  lessee  extends 

Y.  398,  15  Am.  Rep.  438;  Fisher  v.  Lightall,  4  Mackey  82,  54  Am. 
Rep.  258;  Lucas  v.  Coulter,  104  Ind.  81;  Blake  v.  Ranous,  25  111.  App. 
481;  Stevens  v.  Pierce  (Mass.),  23  N.  E.  Rep.  1006.  But  see  Snyder 
V.  Gordon,  45  Hun  538.  But  if  the  lessor  knew  at  tJie  time  when  the 
lease  began  that  the  premises  were  not  in  a  healthful  condition,  he  will 
be  liable  on  an  implied  covenant.  Maywood  t*.  Logan  (Mich.),  43  N.  W. 
Rep.  1052;  Leonard  v.  Armstrong  (Mich.),  41  N.  W.  Rep.  695;  contra, 
Wasson  V.  Pettis,  117  N.  Y.  118.  A  removal  by  the  lessee  of  any  part  of 
the  demised  premises,  or  a  change  or  injury  to  buildings,  is  waste. 
Palmer  V.  Young,  108  111.  App.  252 ;  Champ  Spring  Co.  v.  Roth  Tool  Co. 
(Mo.  1903),  77  S.  W.  Rep.  344. 

95  Thomas  v.  Kingsland,  12  Daly  315;  O'Connor  V.  Gourand,  14  Daly 
64;  Alperir  v.  Earle,  55  Hun  211.  In  the  absence  of  agreement  or  stat- 
ute, there  is  no  duty  on  the  landlord  to  repair  the  premises.  Landt  V. 
Schneider  (Mont.  1904),  77  Pac.  Rep.  307;  Fowler  Cycle  Works  V. 
Fraser  &  Chalmers,  110  111.  App.  126;  Lyon  V.  Bauerman  (N.  J.  1904), 
57  Alt.  Rep.  1009;  Mangolius  v.  Muldberg,  88  N.  Y.  S.  1048.  And  a 
promise  to  repair,  after  commencement  of  term  is  void,  as  without  con- 
sideration. Fowler  Cycle  Works  v.  Fraser  &  Chalmers,  110  111.  App. 
126.  No  agreement  to  repair  was  implied  in  the  following  cases: 
Aiken  V.  Perry,  119  Ga.  263,  46  S.  E.  Rep.  93;  Borggard  v.  Gale,  205 
111.  511,  68  N.  E.  Rep.  1063;  Whitehead  v.  Comstock  Co.,  25  R.  I.  423, 
56  Atl.  Rep.  446. 

9«0'Sullivan  v.  Norwood,  14  Daly  286;  Sterger  V.  Van  Siclen,  7  N. 
Y.  S.  805;  Fisher  V.  Jansen,  30  111.  App.  91,  s.  c.  128  111.  549;  Wilson 
V.  Treadwell,  81  Cal.  58;  Donaldson  v.  Wilson,  60  Mich.  86. 

»T  Walton   V.   Waterhouse,  2   Saund.   422 ;    Abby  v.   Billups,   35  Miss. 

618;  Warner  V.  Hitchins,  5  Barb.  666;  Hoy  v.  Holt,  91  Pa.  Ct.  88,  36 

Am.  Rep.  558;  Mcintosh  v.  Rector,  etc.,  St.  Phillip's  Church,  120  N.  Y. 

71.     But  where  an  ordinance  of  a  city,  passed  subsequently,  prohibits 

186 


CII.    VIII.]  ESTATES   FOR   YE.VKS.  §    147 

only  to  repairs  made  necessary  by  the  negligence  (f  tlie 
lessee.  If  he  uses  the  land  in  a  husbandlike  manner,  he  is 
not  liable  to  repair  any  damage  done  by  the  elements  or  by 
strangers  without  his  fault."^  The  lessee  cannot  hold  the 
lessor  liable  for  improvements  made  by  the  former,  unless 
the  hndlord  has  expressly  assented  to  the  improvements  be- 
ing made  at   his  expense.^® 

§  147.  Covenants  ranning  with  land. —  If  the  covenant  is 
beneficial  only  to  the  owner  of  the  land,  whether  he  be  the 
tenant  of  the  freehold  or  of  the  term,  and  relates  to  the 
preservation  or  improvement  of  the  land,  it  runs  with  the 
land,  passes  to  the  assignee  of  the  lessor  or  lessee,  as  the 
case  may  be,  and  can  be  enforced  by  him.^  But  the  lessor 
may,  in  the  sale  of  the  reversion,  reserve  to  himself  the  en- 
forcement of  any  of  the  covenants  which  would  otherwise 

the  erection  of  wooden  buildings,  the  covenantor  in  a  covenant  to  re- 
build a  wooden  building  is  thereby  released  from  the  obligation  to  per- 
form. Cordes  v.  Miller,  39  Mich.  581,  33  Am.  Law  Rep.  430.  And  a 
covenant  to  erect  a  new  building  does  not,  by  implication,  include  the 
rebuilding  of  it  after  destruction  by  fire  or  otherwise.  Cowell  V. 
Lumley,  39  Cal.   151,  2  Am.  Eep.  430. 

98  Wells  V.  Castles,  3  Gray  323;  I>eavitt  V.  Fletcher,  10  Allen  121; 
Post  V.  Vetter,  2  E.  D.  Smith  248;  Elliott  v.  Aikin,  45  N.  H.  36;  Bold 
V.  O'Brien,  12  Daly  160;  Carroll  v.  Rigney,  15  R.  I.  81;  Sheer  v.  Fisher, 
27  111.  App.  464. 

»»  Pearson  v.  Sanderson,  128  111.  88.  As  to  tenant's  right  to  remove 
trade  fixtures,  on  termination  of  the  tenancy,  see,  Donnelly  v.  Frick  & 
Co.,  207  Pa.  St.  597,  57  Atl.  Rep.  60;  Linden  Oil  Co.  v.  Jennings,  207 
Pa.  St.  524,  56  Atl.  Rep.  1074.     See  also,  ante,  Sec.  18. 

1  Spencer's  Case,  5  Rep.  16;  1  Smith's  Ld.  Cas.  139;  Vyvyan  V. 
Arthur,  1  B.  &  C.  410;  Patton  v.  Deshon,  1  Gray  325;  Rowland  V. 
Coffin,  12  Pick.  125;  Streaper  v.  Fisher,  1  Rawle  161;  Cook  v.  Brightly, 
46  Pa.  St.  445;  Scott  V.  Lunt,  7  Pet.  606;  Crawford  v.  Chapman,  17 
Ohio  449.  In  Illinois,  the  assignee  of  the  covenantor's  estate  cannot 
sue  on  the  covenant  in  his  own  name  unless  the  covenantee  has  attorned 
to  him.  Fisher  v.  Deering,  60  111.  114.  And  at  no  time  has  it  been 
permitted  of  the  assignee  to  sue  for  breaches  of  the  covenant  occurring 
before  assignment.  Lewis  r.  Ridge,  Cro.  Eliz.  863;  Gibbs  r.  Ross,  2 
Head  437;   I  Washburn  on  Real  Prop.  498. 

187 


5    147  ESTATES   FOR    YEARS,  [PAHT    I. 

run  with  the  land.'  A  covenant  is  said  to  run  with  the  land, 
so  as  to  bind  assignees,  when  it  relates  to  the  management 
and  conduct  of  the  land,  or  where  its  performance  forms  a 
part  of  the  original  consideration  upon  which  the  lease 
rests.^  The  usual  covenants  running  with  the  land  are  those 
for  quiet  enjoyment;*  to  insure;'  to  repair;®  to  pay  rent;'^ 
to  pay  taxes ;  *  to  renew  the  lease.^  A  covenant  for  lessor 
to  pay  for  improvements,  passes  to  the  assignee  of  the  lessee, 
but  whether  it  binds  the  assignee  of  the  reversion  has  been 
decided  both  in  the  affirmative,^"  and  in  the  negative."  Cove- 
nants which  relate  to  a  subject-matter  not  in  esse,  as  for  the 
erection  of  a  new  building  upon  the  premises,  do  not  run 
with  the  land  so  as  to  bind  assignees,  unless  they  are  ex- 

2 Payne  v.  James  (La.),  7  So.  Rep,  457. 

3  Morse  v.  Aldrich,  19  Pick.  749;  Piggot  v.  Mason,  1  Paige  Ch.  412; 
Norman  V.  Wells,  17  Wend.  136;  DeForrest  V.  Byrne,  1  Hilt.  43;  Jack- 
son V.  Langhead,  2  Johns.  75;  Blackmore  V.  Boardman,  28  Mo.  410; 
Gordon  v.  George,  12  Ind.  408;  Chautauqua  Assembly  V.  Ailing,  46  Hun 
582.  A  covenant  that  the  lessee  will  not  sell  intoxicants  on  the  demised 
premises,  is  a  covenant  running  with  the  land.  Granite  Building  Cor. 
r.  Green,  25  R.  I.  586,  57  Atl.  Rep.  649;  Spear  v.  Fuller,  8  N.  H.  174, 
28  Amer.  Dec.  391;  Brown  v.  Bragg,  22  Ind.  122;  Burns  v.  McCubbin, 
3  Kan.  221,  87  Amer.  Dec.  468. 

*  Campbell  v.  Lewis,  3  B.  &  Aid.  392 ;  Williams  r.  Burrell,  1  C.  B. 
433;  Shelton  V.  Codman,  3  Cush.  318;  Markland  v.  Cramp,  1  Dev.  &  B. 
94. 

5  Vernon  v.  Smith,  5  B.  &  Aid.  1. 

6  Spencer's  Case,  5  Rep.  16;  1  Smith  Ld.  Cas.  139;  Demarest  V. 
Willard,  8  Cow. -206;  Pollard  v.  Shaffer,  1  Dall.  210;  Taffe  v.  Harteau, 
56  N.  Y.  398,  15  Am.  Rep.  438;  Foss  V.  Staunton  (Vt.  1904),  57  Atl. 
Rep.  942. 

7  Graves  v.  Potter,  11  Barb.  592;  Main  v.  Feathers,  21  Barb.  646; 
Demarest  v.  Willard,  8  Cow.  206;  Howland  v.  Coffin,  12  Pick.  125; 
Hurst  V.  Rodney,  1  Wash.  C.  Ct.  375;  McElroy  v.  Brooks,  104  111.  App. 
220. 

8  Astor  V.  Miller,  2  Paige  68 ;  Host  v.  Kearney,  2  N.  Y.  394. 

0  Piggot  V.  Mason,  1  Paige,  412;  Renond  f.  Daskam,  34  Conn.  512. 
But  see  West.  Transp.  Co.  v.  Landing,  49  N.  Y.  499;  Kolasky  v. 
Mickles,  120  N.  Y.  535. 

10  Ecke  V.  Fetzer,  65  Wis.  55. 

"  Hunt  V.  Danforth,  2  Curt.  592.     See  next  note. 

188 


CH.    Vin.]  ESTATES   FOR    YEARS.  §    1  '  ^ 

pressly  named  therein.^-  On  the  other  hand,  if  the  covenan!; 
be  of  a  collateral  nature,  i.  €.,  to  the  land,  it  is  a  personal 
obligation,  and  does  not  run  with  the  land.  And  if  it  is  in- 
capable in  law  of  attaching  to  the  estate,  it  will  not  bind  or 
inure  to  assignees,  even  though  they  are  expressly  named." 

§  148.  Conditions  in  leases. —  In  connection  with  the  cove- 
nants in  a  lease,  it  may  be  provided  that  the  breach  of  the 
covenant  will  work  a  forfeiture  of  the  estate,  and  give  the 
covenantee  the  right  of  entry  upon  the  land.  But  the  breach 
of  a  covenant  will  not  work  a  forfeiture,  unless  the  right  of 
entry  is  expressly  reserved.^*  Nor  will  a  covenant  lo  pay 
rent  in  advance  operate  as  a  condition  precedent  unless  ex- 
pressly declared  to  be  a  condition.^''  The  attachment  of  a 
condition  of  forfeiture  to  a  covenant  does  not,  however,  inter- 
fere with  a  resort  to  the  ordinary  remedies  on  the  cove- 
nant.^® Like  all  other  conditions,  they  can  only  be  reserved 
to  the  landlord  and  his  assigns,  and  they  alone  can  take  ad- 
vantage of  the  breach.     If  they  elect  to  waive  the  forfeiture, 

"Spencer's  Case,  5  Rep.  16;  1  Smith  Ld.  Cas.  189;  Congleton  v.  Pat- 
tison,  10  East  138;  Sampson  v.  Easterly,  9  B.  &  C.  505;  Bean  r.  Dicker- 
son,  2  Humph.  126;  Hanson  v.  Meyer,  81  111.  321,  25  Am.  Rep.  282. 

13  Spencer's  Case,  5  Rep.  16;  1  Smith's  Ld.  Cas.  139;  Keppell  v. 
Bailey,  2  Mylne  &  R.  517.  See  Vyvyan  v.  Arthur,  1  B.  &  C.  410;  Aiken 
V.  Albany  R.  R.,  26  Barb.  289;  Winton's  Appeal,  HI  Pa.  St.  387. 

"Doe  V.  Jepson,  3  B.  &  Aid.  402;  Jones  r.  Carter,  15  M.  &  W.  718; 
Clark  V.  Jones,  1  Denio  516;  Delancey  V.  Ganong,  9  N.  Y.  9;  Wheeler 
r.  Earl,  5  Cush.  31;  Den  v.  Post,  25  N.  J.  L.  292;  Dennison  v.  Reed,  3 
Dana  586;  Pickard  i'.  Kleis,  56  Mich.  604.  But  the  presumption  of  law 
is  always  against  the  attachment  of  a  condition;  the  condition  must  be 
clearly  expressed,  in  order  to  attach  to  the  covenant.  Doe  i'.  Phillips, 
2  Bing.  13;  Spear  v.  Fuller,  8  N.  H.  174;  Wheeler  r.  Dascombe,  3  Cush. 
285;  Langley  V.  Ross,  55  Mich.  163.  And  conditions  are  always  liber- 
ally construed  in  favor  of  the  covenantor  or  tenant,  and  strictly  against 
the  grantor.  Doe  v.  Bond,  5  B.  &  C.  855;  Pillot  v.  Boosey,  11  C.  B.  (N. 
S.)  885;  Mattice  r.  Lord,  30  Barb.  38;  Palethorp  v.  Bergner,  52  Pa. 
St.  149;  Mackubin  v.  Whetcroft,  4  Harr.  &  McH.  135. 

IS  Hilsendegen  f.  Scheich,  55  Mich.  468. 

i«  See  Rowe  v.  Williams,  97  Mass.  165. 

189 


§    149  ESTATES   FOR   YEARS.  [PART   I. 

the  estate  continues  with  all  the  obligations  attached  thereto.^" 
And  if  the  lessor  conveys  the  absolute  title  to  the  reversion, 
with  the  merger  of  the  leasehold  in  the  fee  the  conditions  be- 
come extinguished.^*  The  subject  of  estates  upon  condition 
is  treated  more  specifically  in  a  subsequent  chapter,  to  which 
reference  must  be  made  to  ascertain  in  detail  the  effect  of 
a  breach  of  a  condition.^" 

§  149.  Rent  reserved  —  Necessity  of  consideration. —  Au- 
thorities are  not  required  for  the  statement  that  a  lease  with- 
out consideration  cannot  be  enforced  as  long  as  it  remains 

17  Morton  r.  Woods,  L.  R.  4  Q.  B.  303,  18  Am.  Law  Rep.  52.5;  Shum- 
•way  1'.  Collins,  6  Gray  231;  Way  v.  Reed,  fl  Allen  364;  Bemis  v.  Wilder, 
100  Mass.  446;  Clark  v.  Jones,  1  Denio  517;  Mcintosh  v.  Rector,  etc., 
St.  Phillips  Church,  120  N.  Y.;  Will's  Appeal,  30  Pa.  222;  Creveling  v. 
West  End  Iron  Co.,  51  N.  J.  L.  34.  An  express  license  to  break  the 
covenant  will  constitute  an  absolute  waiver  of  the  condition,  and  the 
covenantee  cannot  enter  for  any  subsequent  breach.  Dumpor's  Case,  4 
Rep.  119;  Cartwright  V.  Gardner,  5  Cush.  281;  Bleecker  V.  Smith,  13 
Wend.  530;  Murray  V.  Harway,  56  N.  Y.  343;  Dickey  v.  McCullough,  2 
Watts.  &  S.  88;  Chipman  V.  Emesic,  5  Cal.  40.  And  so  will  a  prayer 
for  a  mandatory  injunction.  Chautauqua  Assembly  v.  Ailing,  46  Hun 
582.  But  a  mere  acquiescence  in  the  breach,  or  a  failure  to  enter  for  it, 
will  not  discharge  the  condition.  Doe  v.  Bliss,  4  Taunt.  735;  Ireland 
1'.  Nichols,  46  N.  Y.  413;  Mcintosh  v.  St.  Phillips  Church,  34  N.  Y. 
Super.  Ct.  291.  Unless  the  tenant  should  be  able  to  claim  the  protection 
of  an  estoppel.     Young  v.  Gay,  41  La.  An.  758.     See  post,  Sec.  208. 

18  St.  Phillips  Church  v.  Zion  Presb.  Church,  23  S.  C.  297. 

19  Sec.  207  as  to  assignment  of  conditions.  Covenants  of  forfeiture, 
for  breach  of  conditions,  being  regarded  with  disfavor,  the  lessor,  to 
enforce  such  forfeiture,  must  show  a  strict  compliance  with  the  condi- 
tions on  which  such  right  accrued.  Johnson  v.  Lehigh  Valley  Co.,  130 
Fed.  Rep.  932;  Schwoerer  v.  Connolly  (1904),  88  N.  Y.  S.  818;  West 
Shore  Co.  V.  Wenner  (N.  J.  1904),  57  Atl.  Rep.  408.  But  see  as  to  con- 
dition to  pay  taxes,  Gordon  y.  Richardson,  185  Mass.  492,  70  N.  E.  Rep. 
1027.  And  for  waiver  of  forfeiture,  see,  McConnell  r.  Peirce,  210  111. 
627,  71  N.  E.  Rep.  622;  Granite  Bldg.  Corp.  v.  Green,  25  R.  I.  586,  57 
Atl.  Rep.  649;  Metropolitan  Land  Co.  r.  Manning  (Mo.  1902),  71  S.  W. 
Rep.  696.  A  forfeiture  cannot,  generally,  be  worked,  without  a  notice 
or  hearing,  by  arbitrary  proceedings  of  the  lessor.  Murphy  v.  Century 
Co.,  90  Mo.  App.  621. 

190 


C:i.    VIII.]  ESTATES   FOR   YEARS.  §    14J 

executory.  But  as  soon  as  it  becomes  executed  by  the  trans- 
fer of  possession  to  the  lessee,  the  lease  is  as  valid  and  the 
relation  of  landlord  and  tenant  is  as  definitely  established, 
as  if  it  had  been  given  for  a  valuable  consideration  of  some 
sort,-"  Although  not  necessary  to  the  validity  of  a  lease, 
it  is  customary  and  usual  to  reserve  a  rent  to  be  paid  by  the 
lessee,  and  its  payment  is  enforced  by  the  insertion  of  an 
express  covenant,  or  such  a  covenant  is  implied  from  its 
reservation.  The  rent  may  consist  of  anything  of  value, 
things  or  service.^^  The  covenant  for  rent  passes  with  the 
assignment  of  the  reversion  to  the  assignee.^^  But  if  there 
has  been  a  prepayment  of  the  rent  in  good  faith  to  the 
original  lessor,  before  it  was  due,  the  validity  of  the  payment 
as  a  quittance  of  the  liability  for  rent  is  in  nowise  affected 
by  the  assignment  of  the  reversion  before  the  actual  accru- 
ment  of  such  rent.  The  lessor's  receipt  for  the  rent  is  a 
good  defense  to  an  action  for  the  same  by  the  assignee."^  If 
the  reversion  be  divided  up,  and  portions  of  the  same  are 
assigned  to  different  parties,  the  rent  will  be  apportioned 
between  them.^*     The  same  rule  of  apportionment  prevails 

20  Allen  V.  Koepsel,  77  Tex.  505.     , 

21  Gilpin  V.  Adams   (Cal.),  24  Pac.  Rep.  566. 

22  Scott  V.  Lunt,  7  Pet.  590 ;  Gale  v.  Edwards,  52  Me.  365 ;  Van  Rensse- 
laer V.  Smith,  27  Barb.  140;  Main  v.  Feathers,  21  Barb.  646;  Rowland 
V.  Coffin,  12  Pick.  125 ;  Burden  v.  Thayer,  3  Mete.  76 ;  Demarest  v.  Wil- 
lard,  8  Cow.  206;  Hurst  v.  Rodney,  1  Wash.  C.  Ct.  375;  Van  Rensselaer 
V.  Gallup,  5  Denio  450;  Farley  v.  Craig,  10  N.  J.  L.  262;  Wilson  v. 
Delaplaine,  3  Harr.  499;  Snyder  V.  Riley,  1  Spears  272;  Gibbs  v.  Ross, 
2  Head  437. 

28  Dreyfus  v.  Hirt,  82  Cal.  621, 

24  Montague  v.  Gay,  17  Mass.  439;  Mellis  v.  Lathrop,  22  Wend.  121; 
Burns  v.  Cooper,  31  Pa.  St.  428;  Reed  V.  Ward,  22  Pa.  St.  144;  Peck  v. 
Northrup,  17  Conn.  217;  Sampson  v.  Grimes,  7  Blackf.  176;  Breeding 
V.  Taylor,  13  B.  Mon.  477.  The  apportionment  is  never  made  between 
several  successive  holders  of  the  reversion  according  to  the  length  of 
holding.  Whoever  owns  the  reversion  when  the  rent  is  due  receives  the 
entire  sum.  Burden  v.  Thayer,  3  Mete.  76;  Bank  of  Pennsylania  v. 
Wise,  3  Watts  394 ;  Martin  v.  Martin,  7  Md.  368 ;  Anderson  v.  Bobbins, 
82  Mo.  422;  see  ante,  Sec.  65.     A  landlord  is  entitled  to  recover  rent 

191 


§    149  ESTATES   FOR   YEARS.  [PART   I. 

where  the  reversion  descends  to,  and  is  partitioned  between, 
two  or  more  heirs.*'  In  such  cases  if  is  questionable,  if  the 
assignee  of  a  part  of  the  reversion  can  sue  for  his  aliquot 
sliare  of  the  rent  in  his  own  name,  without  joining  with  the 
others.-^  But  the  reversioner  may  sever  the  right  to  the 
rent  from  the  reversion.  He  may  assign  them  to  different 
parties,  or  he  may  assign  one  and  retain  the  other,  and  the 
holder  of  the  rent  may  sue  on  the  covenant  even  though 
he  has  no  reversion  in  him.*^    But  in  the  assignment  of  the 

for  the  period  of  the  occupancy  of  premises,  although  the  lease  is  not 
valid.  Ascarete  V.  Pfaflf  (Tex,  1903),  78  S.  W.  Rep.  974;  Merchants 
Bank  r.  Routtell  (N.  D.  1903),  97  N.  W.  Rep.  953.  A  covenant  to  pay 
rent  for  the  whole  term,  is  not  effected  by  a  clause,  that  on  certain 
contingencies  the  time  may  be  shortened.  McElroy  v.  Brooks,  104  111. 
App.  220.  The  right  to  distrain  for  rent  still  exists  in  Illinois  (Hill 
r.  Coats,  109  111.  App.  266);  Louisiana  (Millott  v.  Conrad,  112  La. 
928,  36  So.  Rep.  807)  ;  and  Georgia  (Brooks  V.  Augusta  Warehouse  Co., 
119  Ga.  946,  47  S.  E.  Rep.  341;  Hardy  V.  Poss,  ?20  Ga.  385,  47  S.  E. 
Rep.  947). 

25jaques  V.  Gould,  4  Cush.  484;  Cole  v.  Patterson,  25  \Yend.  456; 
Bank  of  Pennsylvania  V.  Wise,  3  Watts  394;  Reed  v.  Ward,  22  Pa.  St. 
144;  Crosby  v.  Loop,  13  111.  625.  If  the  administrator  collects  the 
rent  falling  due  after  the  death  of  the  ancestor,  he  holds  it  as  trustee 
for  the  heirs  and  the  widow.  Mills  V.  Merryman,  49  Me.  65;  Drink- 
water  r.  Drinkwater,  4  Mass.  358;  Robb's  Appeal,  41  Pa.  St.  45; 
King  r.  Anderson,  20  Ind.  386. 

28  See  Martin  v.  Crompe,  1  Ld.  Raym.  340;  Wall  v.  Hinds,  4  Gray 
256;  Porter  V.  Bleiler,  17  Barb.  155;  Decker  v.  Livingston,  15  Johns. 
479;  Ryerson  v.  Quackenbush,  26  N.  J.  L.  254.  But  see  Jones  f.  Felch, 
3  Bosw.  363.  But  the  assignees  may,  and  should,  sue  in  their  own 
names.  The  rent  passes  as  a  vested  interest  in  land,  and  is  not  a 
chose  in  action.  Demarest  V.  Willard,  8  Cow.  200 ;  Van  Rensselaer  V. 
Hays,  19  N.  Y.  99;  Ryerson  v.  Quackenbush,  26  N.  J.  L.  254;  Dixon  V, 
Niecolls,  39  111.  384;  Abererombie  V.  Redpath,  1  Iowa  111;  Crosby  v. 
Loop,  13  111.  625. 

27  Co.  Lit.  47  a;  Baker  v.  Gostling,  1  Bing.  N.  C.  19;  Allen  V. 
Bryan,  5  B.  &  C.  572;  Patten  v.  Deshon,  1  Gray  325;  Hunt  v.  Thomp- 
son, 2  Allen  342;  Kendall  V.  Garland,  5  Cush.  74;  Van  Rensselaer  V. 
Read,  26  N.  Y.  577;  Ryerson  v.  Quackenbush,  26  N.  J.  L.  254;  Dixon 
r.  Niccolls,  39  111.  384;  Ala.  Gold  Life  Ins.  Co.  r.  Oliver,  78  Ala.  158; 
Toan  r.  Pline,  60  Mich.  385;  Trulock  v.  Donahue,  76  Iowa  758.  See 
ante,  Sec.  55. 
192 


CH.    VIII.  j  ESTATES   FOR   YEALS.  §    151 

rent  without  the  reversion,  the  les-sor  cannot  divicie  it  up 
among  several  without  the  consent  of  the  lessee  by  attorn- 
ment, although  a  devise  of  a  part  may  be  good  without  at- 
tornment."® 

§  150.  Rent  reserved  —  Condition  of  forfeiture. —  It  is  also 
often  provided  that  the  estate  shall  be  subject  to  forfeiture 
if  the  rent  is  not  paid.  But  in  order  that  nonpayment  of 
rent  may  work  a  forfeiture  of  the  lease,  the  common  law 
requires  that  a  demand  should  be  made  of  the  lessee  for  the 
precise  amount  of  rent,  on  the  day  when  it  falls  due,  at  a 
convenient  time  before  sunset,  and  on  the  land,  at  the  most 
prominent  place  upon  it, — usually  the  front  door  of  the 
dwelling-house,  if  there  be  any.  A  demand  at  an  improper 
place,  or  at  the  wrong  time,  would  not  give  the  lessor  right 
cf  entry  for  forfeiture  of  the  estate.^®  But  the  parties  may 
by  agreement  do  away  with  any  of  the  requirements,  or  even 
render  a  previous  demand  unnecessary;  in  which  case,  the 
right  of  entry  accrues  immediately  upon  the  breach  of  the 
covenant.^" 

§  151.  How  relation  of  landlord  and  tenant  may  be  termi- 
nated.—  The  relation  of  landlord  and  tenant,  and  therewith  the 
liability  upon  the  covenants  of  the  lease,  can  only  be  ter- 
minated by  eviction,  release  or  surrender  of  the  premises.^' 

28Ards  V.  Watkins,  Cro.  Eliz.  637;  Ryerson  v.  Quackenbush,  20  N.  J. 
L.  254.     See  ante,  Sec.  55. 

29  Doe  r.  Windlass,  7  T.  R.  117;  Doe  v.  Paul,  3  C.  &  P.  613;  Conner 
V.  Bradley,  1  How.  (U.  S.)  211;  McQuestess  v.  Margan,  34  N.  H.  400 
Bradstreet  r.  Clark,  21  Pick.  389;  Kimball  v.  Rowland,  6  Gray  224 
Chapman  f.  Harney,  100  Mass.  354;  Ordway  v.  Remington,  12  R.  I 
319,  34  Am.  Rep.  646;  Jackson  V.  Kipp,  3  Wend.  230;  Jackson  v.  Har 
rison,  17  Johns.  66;  Jenkins  v.  Jenkins,  63  Ind,  415,  30  Am.  Rep 
229;  Chapman  v.  Wright,  20  111.  120;  Chapman  v.  Kirby,  49  HI.  121; 
Byrane  v.  Rogers,  8  Minn.  282. 

30  Doe  V.  Masters,  2  B.  &  C.  490;  Fifty  Associates  v.  Rowland,  8 
Gush.  214;  Byrane  v.  Rogers,  8  Minn.  282.  For  estoppel,  waiver  and 
release  from  forfeiture  see  note  to  Sec.    148. 

81  Sheets  v.  Selden,  7  Wall.  224;  Fuller  v.  Ruby,  10  Gray  290;  Bain 

13  193 


§    151  ESTATES  FOR  YEARS.  [pa:  T   I. 

Fear  of  an  eviction  is  no  ground  for  refusing  to  pay  rent 
or  to  perform  the  other  covenants  of  the  lease.''^  The  de- 
struction, total  or  partial,  of  the  premises,  or  their  becom- 
ing untenantable,  from  any  cause  except  the  acts  of  the 
lessor,  will  not  relieve  the  parties  from  their  covenants.'* 
Nor  is  the  lessor's  performance  of  his  covenant  to  repair  a 
condition  precedent  to  the  tenant's  liability  on  his  covenant 
for  rent.'*  The  covenants  for  rent,  repair,  and  restoration 
in  good  condition,  are  still  binding.  Destruction  by  fire  or 
inevitable  accident  is  no  ground  of  defense,  unless  excep- 
tions to  that  effect  are  inserted  in  the  lease,  or  the  State 
statute  changes  the  liabilities  of  the  parties.*' 

V.  Clark,  10  Johns.  424;  Gates  v.  Green,  4  Paige  Ch.  355;  Dyer  v. 
Wightman,  66  Pa.  St.  427. 

32  Pickett  V.  Anderson,  45  Ark.  177. 

33  Burns  v.  Fuchs,  28  Mo.  App.^279;  Simons  v.  Seward,  54  N.  Y. 
Super.  Co.  406;  Cantrell  V.  Fowler  (S.  C),  10  S.  E.  Rep.  934;  Wein- 
stein  V.  Harrison,  66  Tex.  546;  McLean  V.  Wunder  (Pa.),  19  Atl. 
Rep.  749;  Turrer  V.  Mantonja,  27  111.  App.  500;  Reliable  Steam-Power 
Co.  V.  Solidarity  Watch  Co.,  10  N.  Y.  S.  525;  Smith  v.  McLean,  22  111. 
App.  451,  s.  e.  123  111.  210;  Daly  v.  Wise,  7  N.  Y.  S.  902. 

84  Newman  v.  French,  45  Hun  65. 

35  Hill  V.  Woodman,  14  Me.  38 ;  Kramer  v.  Cook,  7  Gray  550 ;  Wells 
r.  Castles,  3  Gray  325;  Hallet  V.  Wylie,  3  Johns.  44;  Graves  V.  Beedan, 
29  Barb.  100;  JoflFe  v.  Harteau,  56  N.  Y.  398,  15  Am.  Rep.  438;  Dyer 
V.  Wightman,  66  Pa.  St.  427;  Smith  v.  Ankrim,  13  Serg.  &  R.  39; 
Peterson  v.  Edmonson,  5  Harr.  378;  Cowell  v.  Lumley,  39  Cal.  151,  2 
Am.  Rep.  430.  If  the  tenant  has  covenanted  "  to  repair  and  deliver 
up "  he  would  have  to  rebuild  in  the  case  of  destruction  by  fire. 
Bullock  V.  Dommitt,  5  T.  R.  650 ;  Hoy  v.  Holt,  91  Pa.  St.  88 ;  Maggort 
V.  Hansbarger,  8  Leigh  536;  Nave  V.  Berry,  22  Ala.  382.  And  where 
the  lessor  had  insured  the  premises,  in  the  absence  of  a  covenant,  he  is 
not  obliged  to  apply  it  to  the  reconstruction  of  the  building,  in  case 
of  loss  by  fire.  He  may  refuse,  and  still  recover  rent  of  the  tenant. 
Magaw  V.  Lambert,  3  Pa.  St.  444;  Bussman  v.  Ganster,  72  Pa.  St.  289; 
Sheets  v.  Selden,  7  Wall.  424;  Pope  v.  Garrard,  39  Ga.  477;  Masury 
V.  Southworth,  9  Ohio  St.  348.  But  now,  as  already  stated  in  the 
text,  the  common  law  has  in  most  of  the  States  been  changed  so  that 
if  the  premises  are  destroyed  by  fire  or  other  casualty,  so  far  as  to 
render  them  untenable,  the  tenant  will  be  absolved  from  his  liability 
for  rent.  See  Graves  v.  Berdan,  26  N.  Y.  502,  16  Am.  Rep.  659;  Ripley 
194 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    152 

§  152.  What  constitutes  eviction. —  Evictions  are  of  two 
kinds, — actual  or  constructive.  Actual  eviction  is  where  the 
tenant  is  actually  ousted  of  his  possession  of  the  premises, 
either  by  a  stranger  under  a  paramount  title,  or  by  acts  of 
dispossession  by  the  lessor.^®  But  a  disturbance  of  the  pos- 
session by  a  stranger  without  claim  of  paramount  title  will 
not  be  an  eviction.^^  Nor  will  the  dispossession  in  the  exer- 
cise of  the  right  of  eminent  domain  be  such  an  eviction  as 
will  relieve  the  lessee  from  the  liability  on  his  covenant  for 
rent.  It  gives,  however,  an  action  for  damages  against  the 
public  for  land  so  confiscated.^^  Nor  would  dispossession 
by  the  public  enemy  abate  the  rent.'* 

V.  Wightaian,  4  McCord  447;  Wliittaker  v.  Hawley,  25  Kan.  674,  37  Am, 
Rep.  277;  Leavett  v.  Fletcher,  10  Allen  121;  Stow  v.  Russell,  36  111. 
36;  Alger  v.  Kennedy,  49  Vt.  109;  Smith  v.  McLean,  22  111.  App.  351, 
8.  c.  123  ill.  210;  Chesebrough  V.  Pingree  (Mich.),  40  N.  W.  Rep.  747. 
But  a  temporary  uninhabitableness  due  to  a  partial  destruction  of  the 
buildings  by  fire,  will  not  in  any  case  justify  an  action,  if  the  landlord 
exercises  reasonable  diligence  in  restoring  the  premises  to  a  good  con- 
dition. Conn.  Mut.,  etc.,  Ins.  Co.  v.  United  States,  21  Ct.  of  CI.  195; 
Bonnecaze  r.  Beer,  27  La.  An.  531;  McClenahan  v.  New  York,  102  N.  Y. 
75;  Spalding  v.  Munford,  37  Mo.  App.  281.  Lease  is  not  terminated 
by  a  destruction  of  the  building,  by  fire,  in  the  absence  of  such  a 
covenant  in  the  lease.  Moran  v.  Bergen  (1903),  111  111.  App.  313;  Ro- 
man V.  Taylor   (1904),  87  N.  Y.  S.  653,  93  App.  Div.  449. 

88  Robinson  v.  Deering,  56  Me.  358 ;  Russell  v.  Fabyan,  27  X.  H.  543 ; 
Boardman  r.  Osborn,  23  Pick.  295;  Home  Life  Ins.  Co.  v.  Sherman,  46 
N.  Y.  372. 

8T  Wells  V.  Castles,  3  Gray  326 ;  Schuylkill,  etc.,  R.  Co.  v.  Schmoele, 
57  Pa.  St.  273;  Moore  r.  Webber,  71  Pa,  St.  429,  10  Am.  Rep.  705; 
Palmer  v.  Wetmor«»,  2  Sandf.  316;  Royce  v.  Suggenhiem,  106  Mass.  205, 
8  Am.  Rep.  322;  Hazlett  v.  Powell,  30  Pa.  St.  293. 

88  Parks  V.  Boston,  15  Pick.  198;  Patterson  v.  Boston,  20  Pick.  159; 
Felts  V.  Huntley  7  Wend.  210;  Peck  v.  Jones,  70  Pa.  St.  85;  McLarren 
V.  Spalding,  2  Cal.  510.  In  Missouri  and  elsewhere  a  different  rule  is 
laid  down,  and  if  a  part  of  the  premises  is  appropriated  to  public 
use,  the  rent  is  reduced  pro  tanto.  Biddle  v.  Hussman,  23  Mo.  597; 
Kingland  r.  Clark,  24  Mo.  24;  Leiter  v.  Pike,  127  111.  287;  see  Gillespie 
V.  Thomas,  15  Wend.  468. 

89  Clifford  r.  Watts,  L.  R.  5  C.  P.  568;  Wagner  v.  White,  Harr.  & 
J.  564;  Schilling  V.  Holmes,  23  Cal.  230;  contra,  Bayley  v.  Lawrence, 

195 


§    153  ESTATES   FOR   YEARS.  [pART   I. 

§  153.  Constructive  eviction. —  Constructive  eviction  results 
when  the  lessor,  by  his  own  act  or  by  his  own  procurement, 
renders  the  enjoyment  of  the  premises  impossible,  or  dimin- 
ishes such  enjoyment  to  a  material  degree.*"  In  short,  any 
acts  of  omission  or  commission,  or  breaches  of  the  lessor's 
covenants  which  destroy  the  premises,  or  render  them  useless 
or  less  enjoyable,  may  operate  as  a  constructive  eviction.*^ 
It  is,  however,  not  a  constructive  eviction  if  the  lessee  of  a 
mine  exhausts  the  ore  before  the  termination  of  his  tenancy, 
unless  the  lessor  has  expressly  covenanted  that  the  mine  con- 
tained a  given  quantity  of  ore,  and  the  amount  mined  fell 
short  of  that  quantity.*-  It  is,  however,  a  constructive  evic- 
tion where  the  covenant  of  the  lessor  that  the  premises  are 
suitable  for  certain  uses,  is  broken.  The  lessee  in  such  a  case 
is  absolved   from  liability  for  rent.*^     Slight  acts  of  tres- 

1  Bay  409.  As  to  eviction  by  paramount  title,  under  condemnation 
proceedings,  see,  Babas  &  Co.  v.  Thorley,  127  Fed.  Rep.  439.  A  failure 
to  repair  by  landlord  is  not  an  eviction  of  the  tenant  so  as  to  excuse 
the  payment  of  rent.  Roth  v.  Adams,  185  Mass.  341,  70  N.  E.  Rep. 
445.  But  see,  for  removal  of  buildings,  Rice  Fisheries  Co.  v.  Pac.  Realty 
Co.,  35  Wash.  535,  77  Pac.  Rep.  839. 

*o  Thus,  the  renting  of  a  part  of  a  house  to  prostitutes  is  a  con- 
structive eviction  of  the  tenant  of  the  other  part  of  the  house. 
Dyett  V.  Pendleton,  8  Cow.  727;  but  see  contra,  Dewett  V.  Pierson,  112 
Mass.  8,  17  Am.  Rep.  58.  Erections  by  the  lessor,  or  with  his  consent, 
so  near  the  premises  as  to  seriously  diminish  the  enjoyment,  would 
constitute  a  constructive  eviction.  Royce  v.  Guiijgenheim,  100  Mass. 
201,  8  Am.  Rep.  322;  Sherman  v.  Williams,  113  Mass.  481,  18  Am.  Rep. 
522;  Wright  v.  Lattin,  38  111.  293;  Roth  v.  Adams,  185  Mass.  341,  70 
N.  E.  Rep.  445. 

41  Tallman  V.  Murphy,  120  N.  Y.  345;  Riley  V.  Pettis  County,  96  Mo. 
318;  Hayner  V.  Smith,  63  111.  430,  14  Am.  Rep.  124;  St.  John  v.  Palmer, 
5  Hill  599;  Bennett  v.  Bittle,  4  Rawle  339;  Pier  v.  Carr,  69  Pa.  St. 
326;  Lawrence  v.  French,  25  Wend.  443;  Fuller  v.  Ruby,  10  Gray  290; 
Wilson  V.  Smith,  5  Yerg.  399;  Alger  r.  Kennedy,  49  Vt.  109,  24  Am, 
Rep.  127;  Lawrence  V.  Burrell,  17  Abb.  N.  C.  312;  Jackson  v.  Odell, 
12  Daly  345;  Bradley  v.  De  Goicouria,  12  Daly  393. 

42  Clark  V.  Midland  Blast  Furnace  Co.,  21  Mo.  App.  58. 

43  Young  V.  Collett,  63  Mich,  331;  Dermick  v.  Ekdahl,  102  111.  App. 
190. 

196 


CH.    Vin.]  ESTATES   FOR   YEARS.  §    154 

pass,  which  do  not  by  their  material  interference  with  the 
enjoyment  of  the  premises  compel  the  tenant  to  abandon  the 
possession,  is  not  a  constructive  eviction.  The  lessor  is  liable 
for  them,  however,  like  any  other  trespasser.**  It  is  also 
no  ground  for  claiming  exemption  from  liability  in  conse- 
quence of  the  emission  of  gases  and  odors  from  an  adjacent 
building.*'  And  to  relieve  the  tenant  from  liability  for 
rent  on  accourit  of  a  constructive  eviction,  he  must  abandon 
the  possession  of  the  premises.  Retention  of  possession  will 
keep  alive  his  liability  on  the  covenants,  even  though  his 
enjoyment  of  the  premises  is  taken  away  altogether.** 

§  154.  Partial  eviction. —  In  the  case  of  partial  eviction,  if 
it  results  from  the  acts  of  strangers,  in  violation  of  the 
lessor's  covenant  for  quiet  enjoyment,  the  tenant  will  be  re- 
lieved from  the  covenant  for  rent  to  the  extent  of  the  evic- 
tion, while  he  remains  liable  to  the  lessor  for  the  remainder.*^ 
But  if  it  be  by  procurement  of  the  lessor,  the  entire  rent  is 
suspended  during  the  continuance  of  such  eviction  and  the 
lessee  may  elect  to  abandon  the  premises,  thus  terminating 
the  tenancy  and  his  liability  for  rent  altogether.*^     If  the 

"Edperton  v.  Page,  20  X.  Y.  281;  Gardner  v.  Ketelas,  3  Hill.  330; 
Elliott  r.  Aiken,  45  N.  IT.  3.5;  Bennett  r.  Bittle,  4  Rawle  339;  Briggs 
r.  Hall,  4  Leigh  48.5;  Wilson  v.  Smith,  5  Yerg.  399;  Day  v.  Watson,  8 
Mifh.  .53.5.  See  Hayner  v.  Smith.  63  111.  4.30,  14  Am.  Rep.  124.  See, 
also,  Fuller  Co.  v.  Manhattan  Co.,  88  N.  Y.  S.  1049;  Mason  r.  Landeroth, 
(N.  Y.  1903),  84  N.  Y.  S.  740.  88  App.  Div.  38. 

*5  Franklin  i\  Brown,  53  X.  Y.  Super.  Ct.  474;  Sutphin  V.  Seebas,  12 
Daily   139;   Franklin  V.  Brown,  118  N.  Y.   110. 

<8Edgerton  V.  Page,  20  N.  Y.  281;  Hurlbut  V.  Post,  1  Bosw.  28; 
Dyett  V.  Pendleton,  8  Cow.  727;  Royce  v.  Guggenheim,  106  Mass.  201,  8 
Am.  Rep.  322;  Alger  r.  Kennedy,  49  Vt.  109,  24  Am.  Rep.  127,  and 
cases  in  preceding  note.     Young  r.  Collett,  63  Mich.  231. 

<T  Morrison  v.  Chadwick,  7  C.  B.  283;  Hegeman  r.  Arthur,  1  E.  D.. 
Smith  147;  T^wrence  r.  French.  25  Wend.  443;  Dyett  r.  Pendleton,  9. 
Cow.  727;  Martin  f.  [Martin,  7  Md.  375. 

48  Lewis  V.  Paign,  4  Wend.  .323;  Christopher  V.  Austin,  11  N.  Y.  216; 
Shumway  r.  Collins,  6  Gray  227;  Leishman  v.  White,  1  Allen  489; 
Reed  v.  Reynolds,  37  Conn.  469;  Colburn  v.  Morrill,  117  Mass.  262,  19 

197 


§    155  ESTATES   FOR   YEARS,  [PART    I. 

partial  ocenpation  is  retained  under  an  agreement  with  the 
lessor  that  the  rent  should  be  proportionately  reduced,  there 
can  be  no  claim  for  complete  exemption  from  liability  on  the 
ground  of  partial  eviction,  even  where  the  time  of  dispos- 
session is  continued  beyond  what  had  been  expected.*®  In  all 
cases  of  eviction  the  tenant  is  exempt  from  the  payment 
of  rent  from  the  last  pay-day  prior  to  such  eviction;  but 
the  liability  for  rent  revives  if  the  tenant,  after  the  eviction, 
should  resimie  possession  of  the  premises.'**'  If  the  eviction 
is  only  partial,  the  resumption  of  possession  will  not  render 
the  tenant  liable  for  the  intermediate  rent  for  the  part 
which  h?  continued  to  occupy  during  the  continuance  of  such 
eviction.'* 

§  155.  Surrender  and  merger. —  If  the  tenant  gives  up  his 
term  to  the  immediate  reversioner,  he  is  said  to  surrender 
his  estate,  and  the  estate  is  merged  or  becomes  lost  in  the 
reversion;  the  effect  of  which  is  to  extinguish  all  liability 
on  the  covenants  of  the  lease,"*    But  if  an  estate  intervenes 

Am.  Rep.  415;  Royce  v.  Guggenheim,  106  Mass.  201,  8  Am.  Rep.  322; 
Smith  r.  Stigleman,  58  111.  141;  Wilson  v.  Smith,  5  Yerg.  379;  Pier  v. 
Cair,  en  Pa.  St.  326;  Schilling  v.  Holmes,  23  Cal.  2.30.  But  neither 
total  nor  partial  eviction  will  prevent  the  lessor  from  recovering  rent 
already  due,  when  the  eviction  takes  place.  Giles  v.  Comstock,  4  N.  Y. 
270;  Kessler  v.  McConachy,  1  Rawle  435;  Kitchen  Bros.  r.  Philbin 
(Neb.  1901),  96  N.  W.  Rep.  487;  Moore  V.  Mansfield,  182  Mass.  302,  65 
N.  E.  Rep.  398.  But  see  Soloman  v.  Fantozzi,  86  N.  Y.  S.  754. 
<9Kella  V.  Miles,  38  Hun  6. 

50  Morrison  f.  Chadwick,  7  C.  B.  283;  Chatterton  V.  Fox,  5  Duer 
64;  Boardman  V.  Isborn,  23  Pick.  295;  Russell  r.  Fabyan,  27  N.  H. 
543;  Colburn  v.  Morrill,  117  Mass.  262,  19  Am.  Rep.  415;  Royce  v.  Gug- 
genheim, 106  Mass.  201,  8  Am.  Rep.  322;  Corning  v.  Gould.  16  Wend. 
538;   Smith  r.  Stigleman,  58  111.  141. 

51  Upton  r.  Greenlees,  17  C.  B.  30;  Fuller  r.  Ruby,  10  Gray  285; 
Leishman  v.  White,  1  Allen  489;  Lawrence  f.  French,  25  Wend.  443; 
Anderson  r.  Chicago  Ins.  Co.,  21  111.  601. 

52  Co.  Lit.  388  a;  1  Washb.  on  Real  Prop.  552;  Curtis  V.  Miller,  17 
Barb.  477;  Greider's  Appeal,  5  Pa.  St.  422;  Bailey  r.  Wells.  8  Wis. 
158;  Smiley  v.  Van  Winkle,  6  Cal.  605;  Dennis  V.  Miller  (N.  J.  1902), 
53  Atl.  Rep.  394;  McDonald  r.  May  (Mo.  1902),  69  S.  W.  Key    1059. 

198 


CH.   Vin.]  ESTATES   FOR   YEARS.  §    155 

between  the  two  estates,  neither  surrender  nor  merger  will 
take  place.'^  In  order  to  prevent  a  merger  of  the  term  in 
the  reversion,  it  is  a  common  custom,  in  England,  to  have 
the  term  conveyed  to  trustees,  and  conditioned  to  follow  the 
reversion  into  whosesoever  hands  the  latter  may  come.  This 
was  called  a  term,  attendant  upon  the  inheritance,  and  may 
be  done  whenever  there  is  fear  of  incumbrances  which  will 
affect  the  reversion  while  they  are  subject  to  the  term.''* 
Nor  will  merger — i.  e.,  the  dissolution  of  the  term  in  the  re- 
version —  take  place  where  the  two  come  together  into  the 
possession  of  one  person  by  act  of  the  law, — as,  where  the 
husband  has  a  term  of  years  in  his  own  right,  and  a  term 
of  years  in  his  wife,  or  tenancy  by  curtesy  through  the  free- 
hold of  his  wife.  They  will  continue  to  exist  uninHuenced 
by  their  union  in  the  one  person.*'^  Where  two  terms  come 
together  in  one  person,  the  first  will  merge  in  the  second, 
even  though  the  first  be  for  a  longer  period ;  unless  the  sec- 
ond is  created  by  way  of  remainder,  when  no  merger  will 
result.  In  the  latter  case,  the  person  becoming  possessed 
of  both  will  have  the  benefit  of  both  in  succession.'*" 

58  1  Washburn  on  Real  Prop.  553 ;  Burton  v.  Barclay,  7  Bing.  745 ; 
Williams  on  Real  Prop.  413,  415;  Springer's  Appeal,  111  Pa.  St.  274; 
Hobson  r.  Silva,  137  Cal.  323,  70  Pac.  Rep.  619.  For  merger  from 
purchase  of  landlord's  title,  by  tenant  at  foreclosure  sale,  see,  Mastin 
f.  Stow,  91  Mo.  App.  554. 

»*  Williams  on  Real  Prop.  16,  417. 

OS  1  Washburn  on  Real  Prop.  554;  Williams  on  Real  Prop.  415;  3 
Prest.  Conv.  276;  Jones  v.  Davies,  5  Hurlst.  &  N.  766;  Doe  r.  Pett,  11 
Ad.  &  El.  848 ;  Clift  v.  White,  19  Barb.  70. 

so  Co.  Lit.  273  b;  3  Prest.  Conv.  201;  1  Washburn  on  Real  Prop.  553, 
554;  Hughes  r.  Robotham,  Cro.  Eliz.  303;  Stephens  v.  Bridges,  6 
Madd.  66;  Chamberlain  v.  Dunlap,  8  N.  Y.  S.  125.  This  doctrine  of 
merger  is  applicable  to  all  classes  of  estates,  and  provides  for  tlie  dis- 
solution of  the  inferior  in  the  greater,  estate.  The  superiority  of  es- 
tates in  this  connection  is  determined  by  their  legal  value,  and  not  their 
pecuniary  or  market  value.  Thus,  an  estate  for  one  thousand  years 
is  less  than,  and  becomes  merged  in,  a  life  estate,  when  the  two  come  to- 
gether in  one  person.  For  merger  of  estates,  generally,  see  Sec.  50  and 
note. 

199 


§    156  ESTATES   FOR   YEARS.  [PART    I. 

§  156.  How  surrender  may  be  effected. —  As  a  general  pro- 
position, a  surrender  which  will  operate  as  an  extinguish- 
ment of  the  lessee's  liability  for  rent  and  on  the  other  cove- 
nants of  the  lease,  requires  the  same  formalities  of  execution, 
under  the  Statute  of  Frauds,  as  are  necessary  in  the  creation 
of  the  lease.  A  lease  in  writing,  therefore,  can,  as  a  gen- 
eral rule,  only  be  terminated  by  a  surrender  in  writing;  and 
if  the  lease  was  required  to  be  under  seal,  the  surrender  must 
be  also.''^  But  if  the  lessee  takes  a  new  lease,  the  enjoy- 
ment of  which  is  incompatible  with  the  continuance  of  the 
old  lease,**  or  if  the  lessee  abandons  the  possession,  and  the 
lessor  actually  enters  into  possession,  or  leases  the  premises 
to  other  parties,  such  acts  will  be  sufficient  to  work  a  sur- 
render of  the  premises,  so  far,  at  least,  as  to  relieve  the  ten- 
ant from  liability  on  his  covenants.""     But  an  abandonment 

87  Ward  r.  Lumley,  5  Hurlst.  &  N.  88;  Brady  v.  Peiper,  1  Hilt.  61; 
Jackson  r.  Gardner,  8  Johns.  404;  Allen  v.  Jaquish,  21  Wend.  628; 
M'Kinney  V.  Reader,  7  Watts  123;  Breher  v.  Reese,  17  111.  App.  545. 
But  the  lessee's  surrender  will  in  nowise  affect  the  rights  of  third  par- 
ties, such  as  sublessees.  They  will  still  hold  their  rights  or  interests 
in  the  estate;  but  after  such  a  surrender,  they  must  perform  their 
covenants  to  the  surrenderee.  He  can,  for  example,  compel  the  sub- 
lessee to  pay  the  rent  to  him.  Adams  V.  Goddard,  48  Me.  212;  Beal 
V.  Boston,  etc.,  Car.  Co.,  125  Mass.  157,  28  Am.  Rep.  216;  Piggott  V. 
Stratton,  1  Johns.  Ch.  355;  McKenzie  v.  Lexington,  4  Dana  129; 
Hessel  r.  Johnson,  128  Pa.  St.   173. 

58  Lyon  V.  Reed,  13  M.  &  W.  304;  McDonnell  v.  Pope,  9  Hare  705; 
Shepard  v.  Spaulding,  4  Mete.  416;  Brewer  v.  Dyer,  7  Cush.  339; 
Livingston  v.  Potts,  16  Johns.  28 ;  Van  Rensselaer  v.  Penniman,  6  Wend. 
569;  Coe  V.  Hobby,  72  N.  Y.  141,  28  Am.  Rep.  120;  Bailey  v.  Wells,  8 
Wis.  141;  Stuebben  V.  Granger,  63  Mich.  306.  And  where  the  second 
lease  is  parol,  while  the  first  is  written,  the  acceptance  of  the  second 
will  constitute  a  surrender  of  the  first,  if  the  second  lease  is  valid  under 
the  Statute  of  Frauds.  Thomas  v.  Cook,  2  B.  &  Aid.  119;  Smith  V. 
Niver,  2  Barb.  180;  Bedford  V.  Terhune,  30  N.  Y.  463.  But  there  will 
be  no  surrender  where  the  second  lease  is  from  one  of  the  two  original 
lessors  (Sperry  v.  Sperry,  8  iJ.  H.  477;  Chamberlain  V.  Dunlap,  8  N. 
Y.  S.  125),  or  the  release  of  the  first  is  executed  by  one  of  the  two 
original  lessees.     Baker  v.  Pratt,  15  111.  568. 

59  Dodd  r.  Acklom,  6  Mann  &  G.  673 ;  Walker  v.  Richardson,  2  M. 
&  W.  891;  Brewer  v.  Dyer,  7  Cush.  337;  Talbot  v.  Whipple,  14  Allen 

200 


CH.   VIII.]  ESTATES  FOR  YEARS.  §   156 

of  possession  by  the  tenant  will  not  work  a  surrender  of  the 
premises,  unless  it  is  assented  to  by  the  lessor,  and  such  ao- 
eeptanee  must  be  shown  by  word  or  acts, — such,  for  example, 
as  entry  into  possession.*"  A  surrender  may  also  be  made 
to  operate  in  futuro.^^ 

180;  Hegeman  t\  McArthur,  1  E.  D.  Smith  149;  Brady  v.  Peiper,  1  Hilt 
61;  Statesbury  r.  Vail,  13  N.  J.  L.  390;  M'Kinney  r.  Reader,  7  Watts 
123;  Wool  V.  Walbridgje,  19  Barb.  136;  Van  Rensselaer  v.  Freeman,  6 
Wend.  569 ;  Cline  v.  Black,  4  McCord  431 ;  Wallace  v.  Kennelly,  47  N. 
J.  L.  242.  In  Fifty  Associates  v.  Grace,  125  Mass.  161  (28  Am.  Rep. 
218),  it  was  held  that  where  the  lease  is  expressly  non-assignable,  and 
the  lessor  assents  to  an  assignment  and  a  different  use  of  the  premises, 
this  assent,  together  with  acceptance  of  rent  from  the  assignee,  is  in 
effect  the  creation  of  a  new  tenancy,  and  the  original  lessee  is  no 
longer  liable  on  his  covenant  for  rent.  See  also  Bailey  v.  Delaphine,  1 
Sandf.  5;  Logan  V.  Anderson,  2  Doiigl.  (Mich.)  101;  Levering  v.  Lang- 
ley,  8  Alinn.  107.  But  the  mere  oral  agreement  to  substitute  another 
in  the  place  of  the  tenant  will  not  have  the  effect  of  a  surrender,  un- 
less the  agreement  has  been  carried  into  effect,  and  evidenced'  by  some 
act, —  such  as  acceptance  of  rent  from  the  new  tenant.  See  Brewer  V. 
Dyer,  7  Cush.  337;  Whitney  i\  Myers,  1  Duer  266;  Vandekar  i\  Reeves, 
40  Hun  430;  Wallace  v.  Kennelly,  47  N.  J.  L.  242;  Kedney  v.  Rohrbach, 
14  Daly  54.  But  see,  contra,  Ballou  V.  Carton,  8  N.  Y.  S.  15;  Winant  V. 
Hines,  14  Daly  187.  Where  the  term  ends  at  a  fixed  time,  no  notice  to 
terminate  the  tenancy  is  necessary.  Butts  V.  Fox,  96  Mo.  App.  437,  70 
S.  W.  Rep.  515. 

00  Thomas  r.  Cook,  2  B.  &  Aid.  119;  Whitehead  v.  Clifford,  3  Taimt. 
318;  Hegeman  r.  McArthur,  15  N.  Y.  149;  Elliott  V.  Aiken,  45  N.  H. 
36;  Stobie  f.  Dills,  62  111.  432;  Statesbury  v.  Vail,  13  N.  J.  L.  390; 
Boyle  V.  Teller,  132  Pa.  St.  56;  Koehler  v.  Scheider,  10  N.  Y.  S.  101. 

«i  Allen  r.  Joquish,  21  W'end.  628;  but  an  acceptance  of  notice  that 
the  tenant  is  to  quit  at  a  future  time,  without  acceptance  of,  or  en- 
tering into,  possession,  when  the  tenant  abandons  the  premises,  is  not 
such  a  surrender  as  will  relieve  the  tenant  from  liability  on  his  ex- 
express  covenant  for  rent.  Johnstone  v.  Huddlestone,  4  B.  &  C.  922; 
Jackson  V.  Gardner,  8  Johns.  404;  Schiefelin  v.  Carpenter,  15  Wend. 
400.  Where  the  lessor  and  lessee  agree  upon  a  termination  of  the 
tenancy,  if  there  are  any  acts  thereunder,  giving  this  agreement  effect, 
there  is  a  surrender  of  the  term,  in  law.  Dennis  v.  Miller  (N.  J.  1902), 
53  Alt.  Rep.  394;  Drew  t;.  Billings  Drew  Co.  (Mich.  1902),  92  N.  W. 
Rep.  774. 


201 


§    157  ESTATES   FOR   YEARS.  [PART   I. 

§  157.  Right  of  le:3ee  to  deny  lessor's  title. —  As  a  conse- 
quence of  the  tenure  existing  between  landlord  and  tenant, 
if  one  pereon  accepts  a  lease  from  another,  and  enters  into 
possession  under  the  lease,  he  is  estopped  from  denying  the 
lessor's  title,  by  setting  up  a  title  in  himself  or  in  a  third 
person  adverse  to  the  right  of  the  lessor  to  grant  the  original 
lease,  in  any  action  for  the  recovery  of  the  rent,  or  of  the 
possession."-  And  this  principle  is  applied  to  any  land,  the 
title  to  which  the  tenant  may  have  acquired  by  purchase  or 
by  disseisin  during  the  continuance  of  the  term,  and  which 
he  occupied  and  used  in  connection  with  the  leased  land, 
■whether  adjacent  or  at  a  distance,  unless  the  presumption 
of  holding  for  the  benefit  of  the  landlord  is  rebutted  by 
strong  and  clear  evidence  of  a  contrary  intention."^ 

This  estoppel,  however,  exists  only  during  the  continuance 
cf  the  term,  and  the  tenant,  if  he  has  acquired  a  superior 
title,  may  enforce  it  against  the  lessor,  after  he  has  delivered 

92  Cooke  V.  Loxley,  5  T.  R.  4;  Delaney  v.  Fox,  2  C.  B.  (N.  S.)  768 
Blight's  Lessee  v.  Rochester,  7  Wheat.  548;  Willison  v.  Watkins,  3  Pet 
43;  Russell  v.  Fabyan,  27  N.  H.  529;  Longfellow  f.  Longfellow,  54  Me 
249;  Boston  v.  Binney,  11  Pick.  8;  Coburn  v.  Palmer,  8  Cush.  124 
Towne  v.  Butterfield,  97  Mass.  106;  Franklin  v.  Merida,  35  Cal.  558 
Wells  V.  Sheerer,  78  Ala.  142;  Morris  v.  Apperson  (Ky.),  13  S.  W 
Rep.  441;  Oliver  v.  Gray,  42  Kans.  623;  Killoren  v.  Murtauch,  64  N.  H 
51;  Palmer  v.  Nelson,  76  Ga.  803;  Doherty  v.  Matsell,  119  N.  Y.  646, 
But  the  tenant  is  not  estopped  from  setting  up  a  tax-title  purchased 
by  him  during  the  tenancy,  unless  he  is  under  obligation  to  pay  the 
taxes.  Weichelsbaum  v.  Carlett,  20  Kan.  709;  Bettison  v.  Budd,  17 
Ark.  546;  Haskell  v.  Putnam,  42  Me.  244.  The  mere  taking  of  a 
lease  does  not  estop  the  lessee.  Entry  into  possession  is  necessary  to 
create  the  estoppel.  Chtittle  v.  Pound,  1  Ld.  Raym.  746;  Nerhath  v. 
Althouse,  8  Watts  427.  A  showing,  in  an  action  for  rent,  that  the 
lessor  has  conveyed  the  premises,  is  not  a  denial  of  the  lessor's  title. 
Allan  V.  Hall    (Neb.  I'-Q-l) ,  92  N.  W.  Rep.  171. 

63  Doe  V.  Jones,  15  M.  &  W.  580;  Doe  V.  Rees,  6  C.  &  P.  610;  Doe 
V.  Tidbury,  14  C.  B.  304;  Kingsmill  v.  Millard,  11  Exch.  813;  Dixon  V. 
Bnty,  L.  R.  1  Exch.  25;);  Lisburne  v.  Davies,  L.  R.  1  C.  P.  260;  Doe  v. 
Murrell,  8  C.  &  P.  134.  See  contra,  Holmes  V.  Turner's  Falls,  etc.,  Co., 
150  Mass.  535,  23  N.  E.  Rep.  305. 

202 


CH.    VIII.]  ESTATES   FOII    YEAl.S.  §    157 

up  possession  to  him  at  the  expiration  of  the  lease."*  And 
during  the  continuance  of  the  lease,  if  the  tenant  has  been 
evicted  by  a  stranger  under  the  claim  of  a  paramount  title, 
the  tenant  may  attorn  to  such  claimant,  and  deny  the  lessor's 
right  to  recover  the  rent  or  the  possession.  But  in  order  to 
be  able  to  set  up  such  a  defense,  he  must  give  his  lessor 
notice  of  the  claim,  and  the  eviction  must  be  actual ;  although 
he  need  not  wait  to  be  actually  put  out  of  possession  before 
attorning  to  the  stranger  claimant."^  He  may  also  show 
that  the  lessor's  title  has  since  been  determined,  and  that  he 
has  acquired  the  title  to  the  reversion,  although  such  de- 
termination of  the  lessor's  title  is  not  a  good  defense,  if  the 
reversion  is  held  by  a  stranger,  unless  the  lessee  has  been 
actually  or  constructively  evicted.*®    He  may  also  show  that 

«♦  Accidental  Death  Ins.  Co.  v.  Mackenzie,  10  C.  B.  (N.  S.)  870;  Wil- 
son r.  Watkins,  3  Pet.  43;  Longfellow  v.  Longfellow,  54  Me.  249; 
Page  V.  Kinsman,  43  N.  H.  331;  Sharpe  V.  Kelly,  5  Denio,  431;  Elliott 
V.  Smith,  23  Pa.  St.  131;  Shields  v.  Lozear,  34  N.  J.  L.  496;  Williams 
V.  Garrison,  29  Ga.  503;  Russell  v.  Erwin,  38  Ala.  50;  Duke  v.  Harper, 
6  Yerg.  280;  Hodges  f.  Shields,  18  B.  Mon.  832;  Stout  v.  Merrill,  35 
Iowa  47;  Bonds  v.  Smith,  109  N.  C.  333;  Outtun  v.  Dulin  (Md.),  20 
Atl.  Rep.  134;  Robinson  r.  Hall  (Ala.),  7  So.  Rep.  441.  And  disclaimer 
of  tenancy,  with  abandonment  of  possession,  will  have  the  same  effect. 
Fuller  V.  Sweet,  30  Mich.  237,  18  Am.  Rep.  122;  Arnold  v.  Woodward 
(Col.),  23  Pac.  Rep.  444. 

6s  Mayor  v.  Whitt,  5  M.  &  W.  571;  Simers  v.  Salters,  3  Denio  214; 
Whalin  v.  White,  25  N.  Y.  465;  Hilbourne  v.  Fogg,  99  Mass.  1;  Towne 
V.  Butterfield,  100  Mass.  189;  Stewart  v.  Roderick,  4  Watts  &  S.  188; 
Shields  V.  Lozear,  34  N.  J.  L.  496;  Devaeht  v.  Newsam,  3  Ohio  57; 
Lowe  V.  Emerson,  48  111.  160;  Casey  v.  Gregory,  13  B.  Mon.  506;  Luns- 
ford  V.  Turner,  5  J.  J.  Marsh,  104;  Voss  v.  King,  33  W.  Va.  230; 
Thomas  v.  Black  (Del.),  18  Atl.  Rep.  771;  Hibbard  v.  Ramsdell,  118 
N.  Y.  38;  Ratcliff  r.  Belfort  Iron  Co.,  87  Ky.  559.  See  O'Donnell  f. 
Mclntyre,  118  N.  Y.  150. 

fl«  Walton  V.  Waterhouse,  2  Saund.  418  n;  Stack  v.  Seaton,  26  Mnnn 
&  R.  729;  Jackson  r.  Rowland,  6  Wend.  666;  Despard  v.  Wallbridgo,  1 
E.  D.  Smith  374;  Hilbourn  r.  Fogg,  99  Mass.  11;  Lamson  v.  Clarkson. 
113  Mass.  348,  18  Am.  Rep.  498;  Pierce  f.  Brown,  124  Vt.  105;  Duffer 
r.  Wilson,  69  Pa.  St.  316;  Shields  v.  Lozear,  34  N.  J.  L.  496;  Franklin 
r.  Palmer,  50  111.  202;  Wild's  Lessee  t'.  Serpell,  10  Gratt.  415;  Horner 
V.  Leeds,  25  N.  J,  L.   106;   Wolf  v.  Johnson,  30  Miss.  513;    Beall  f. 

203 


§    158  ESTATES   FOR   YEARS.  [PART   I. 

he  has  been  induced  to  accept  the  lease  through  misrepre- 
sentation or  fraud,  or  that  the  lessor  was  not  in  possession 
at  the  creation  of  the  lease."^ 

The  same  doctrine  of  estoppel  applies  to  the  assignees,  dev- 
isees and  heirs  of  the  lessor.  The  lessee  cannot  dispute 
the  title  of  the  original  lessor,  but  he  may  deny  the  validity 
of  the  assignment,  the  devise  or  the  descent.®®  And  in  case 
of  assignment,  he  may  dispute  the  original  lessor's  pres- 
ent title,  by  setting  up  the  title  of  the  assignee  to  whom  he 
has  attorned.®* 

§  158.  Effect  of  disclaimer  of  lessor's  title. —  If  the  lessee 
illegally  denies  the  lessor's  title  to  the  land,  it  is  virtually  an 
act  of  disseisin.  But  it  will  not  work  a  rupture  of  the  re- 
lation of  landlord  and  tenant  except  at  the  option  of  the 
lessor.     If  he  so  elects,  he  may  consider  the  lease  as  for- 

Davenport.  48  Gn.  16.5,  15  Am.  Rep.  656;  Pickett  V.  Ferguson.  4.5  Ark. 
177  (55  Am.  Rep.  545);  Rhyne  v.  Guevara  (Miss.),  6  So.  Rep.  736; 
Hibbard  r.  Ramsdell,  118  N.  Y.  38. 

«7  Accidental  Death  Ins.  Co,  V.  McKenzie,  10  C.  D.  (N.  S.)  871; 
Tewksbury  r.  Magraff,  .3.3  Cal.  237;  Jackson  v.  Spear,  7  Wend.  401; 
Alderson  r.  Miller,  15  Gratt.  279;  Hockenbury  r.  Snyder,  2  Watts  & 
S.  240;  Killoren  v.  Murtaugh,  64  N.  H.  51;  Voss  V.  King,  33  W.  Va. 
236;  Hammons  V.  McClure,  85  Tenn.  65;  Crockett  V.  Althouse,  33  Mo. 
App.  404. 

esTuttle  V.  Reynolds,  1  Vt.  80;  Russell  v.  Allard,  18  N.  H.  225;  Blan- 
tin  r.  Whittaker,  11  Humph.  313;  Beall  v.  Davenport,  48  Ga.  155,  15 
Am.  Rep.  656. 

89Delaney  r.  Fox,  2  C.  B.  (K  S.)  778;  Kimball  r.  Lockwood,  6  R.  L. 
138;  Mass.  Ins.  Co.  r.  Wilson,  10  IMetc.  126;  Pierce  v.  Brown,  24  Vet. 
165;  Beall  r.  Davenport,  48  Ga.  165,  15  Am.  Rep.  656;  Clafflin  r.  Brock- 
meyer,  33  Mo.  App.  92.  The  estoppel  to  deny  landlord's  title  binds  an 
assignee  or  subtenant  equally  with  the  original  lessee.  Owen  r.  Brook- 
port,  208  111.  35,  69  N.  E.  Rep.  952;  Simpson  v.  Morehead  (N.  J. 
1904),  56  Atl.  Rep.  887;  Adams  r.  Shirk,  117  Fed.  Rep.  8.  As  long 
as  the  lessee  is  in  possession,  under  the  lessor,  he  cannot  dispute  his 
title.  Harvin  v.  Blackman  (La.  1904),  112  La.  24,  36  So.  Rep.  213; 
Morga  V.  Dalton,  112  La.  9,  36  So.  Rep.  208;  Fuller  f.  Construction  Co. 
(N.  Y.  1904),  88  N.  Y.  S.  1049;  Mineral  R.  &  M.  Co.  v.  Flaherty,  24  Pa, 
Super  Ct.  236. 
204 


CII.    VIII.]  ESTATES   FOR   YEARS.  §    159 

felted,  and  treat  the  lessee  as  a  disseisor.  Otherwise  the  re- 
lation of  landlord  and  tenant  continues,  with  all  the  attend- 
ing liabilities  and  duties.^"  The  Statute  of  Limitations  will 
jiot  run  against  the  lessor's  title,  until  due  notice  has  been 
given  to  the  lessor  of  the  claim  of  adverse  possession,  and 
will  ripen  into  a  good  title  only  when  the  lessor  fails  within 
the  statutory  period  to  exercise  the  rights  of  an  owner  over 
the  land.  The  payment  of  rent,  whether  voluntary  or  in- 
voluntary, will  be  a  sufficient  acknowledgment  of  the  tenure 
and  the  lessor's  title  to  prevent  its  being  barred  by  the  Stat- 
ute of  Limitations.'^  And  if  the  lessee  has  the  superior 
title,  the  lessee's  possession  under  the  lease,  it  matters  not 
how  long  it  is  continued,  will  not  operate  under  the  Statute 
of  Limitations  to  bar  the  lessee's  title.  In  such  a  case,  the 
lessor  cannot  be  considered  to  have  the  seisin  in  law.'^^ 

§  159.  Options  of  purchase  and  for  renewal. —  It  is  quite 
customary  of  recent  years,  for  demises  of  real  estate  to  con- 
tain options,  on  the  part  of  the  lessee,  or  tenant,  on  com- 

To  Rlierman  t'.  Champlain  Transp.  Co.,  31  Vt.  110;  Greene  V.  Munson, 
9  Vt.  37;  Jackson  f.  Vincent,  4  Wend.  6o3;  Jackson  v.  Collins,  11  Johns. 
5;  Russell  V.  Fabyan,  34  N.  H.  223;  Newman  v.  Rutter,  8  Watts  5; 
Wild's  Lessee  f.  Serpell,  10  Grant  405;  Wadsworthville  School  v. 
Meetze,  4  Rich.  50;  Doe  r.  Reynolds,  27  Ala.  37G;  Montgomery  V. 
Craig,  3  Dana  101;  Arnold  v.  Woodward  (Col.),  23  Pac.  Rep.  444;  Tobin 
V.  Young  (Ind.),  24  N.  E.  Rep.  121;  Willlson  V.  Watkins,  3  Pet.  43. 
No  notice  to  quit  is  required  before  ejectment.  Sims  ».  Cooper,  106  Ind. 
86. 

71  Willison  V.  Watkins,  3  Pet.  49 ;  Zeller  V.  Eckhert,  4  How.  289 ; 
Sherman  v.  Champlain  Transp.  Co.,  31  Vt,  110;  Bedford  v.  McElheron, 
2  Serg.  &  R.  49;  Jackson  V.  Wheeler,  6  Johns.  272;  Whaley  v.  Whaley, 
1  Speers  225;  Deane  v.  Gregory,  3  B.  Mon.  619;  Lee  t;.  Netherton,  9 
Yerg.  315. 

72  Smythe  v.  Henry,  41  Fed.  Rep,  705,  Possession  of  a  tenant,  under 
a  lease,  can  never  form  the  basis  of  a  title  by  adverse  possession, 
Dixon  V.  Finnegan,  182  Mo.  Ill,  81  S.  W.  Rep.  449;  Morgan  v.  Dalton, 
112  La.  9,  36  So.  Rep,  208;  Miller  v.  Warren  (N.  Y.  1904),  87  N.  Y.  S. 
1011,  94  App.  Div,  192.  But  see,  for  possession  taken  independently  and 
not  as  lessee,  Cambridge  Lodge  v.  Routh  (Ind.  1904),  71  N.  E,  Rep. 
148. 

205 


§    160  ESTATES   FOR   YEARS.  [PART   I. 

pliance  with  certain  conditions  precedent,  to  purchase  the 
leased  premises,  for  a  fixed  sum,  at  a  fixed  time,  or  during 
the  continuance  of  the  term.  Where  a  lease  contains  an 
option  to  sell,  at  a  fixed  price,  this  is  generally  held  to  be 
such  a  continuing  offer,  by  the  lessor,  or  landlord,  as  will, 
on  acceptance  of  the  terms,  by  the  lessee,  constitute  a  com- 
plete contract  of  sale  and  bind  the  lessor  to  convey  the 
premises,  on  the  terms  agreed  upon  in  the  lease.'^  And  it  is 
not  infrequent  that  covenants  to  renew  the  tenancy  are  in- 
corporated in  the  lease,  and  these  covenants  are  also  en- 
forced, by  the  courts,  if  sufficiently  definite  to  form  the  basis 
of  an  action  for  specific  performance,  or  for  damages,  in  case 
of  the  violation  of  such  promises  by  the  landlord.^* 

§  160.  Letting  land  npon  shares. — It  is  also  common  in 
this  country  for  the  owner  of  land  to  let  it  to  persons  for 
the  purpose  of  cultivating  it,  with  the  agreement  that  the 
parties  should  each  have  a  share  in  the  crops.  Such  con- 
tracts create  between  the  parties  different  relations,  accord- 

73  Where  a  lease  contains  an  option  to  sell  at  a  fixed  price,  this  is 
such  a  continuing  offer,  that,  on  acceptance,  by  the  lessee,  there  is  a 
complete  contract  of  sale.  King  v.  Raab,  123  Iowa  632,  99  N.  W.  Rep. 
306;  Tilton  V.  Coal  Co.  (Utah  1904),  77  Pac.  Rep.  758.  But  see,  where 
there  are  conditions  precedent  to  be  performed,  to  the  right  to  exercise 
the  option  to  purchase.  Frank  v.  Stratford-Hancock  (Wyo.  1904),  77 
Pa.  Rep.  134. 

"*  A  covenant  for  renewal  will  be  enforced  in  equity,  where  lessee 
elected  to  renew.  Kaufman  v.  Liggett,  209  Pa.  St.  87,  58  Atl.  Rep.  129 ; 
Neiderstein  v.  Cusick  (N.  Y.  1904),  178  N.  Y.  543,  71  N.  E.  Rep.  100; 
Tischner  v.  Rutledge,  35  Wash.  285,  77  Pac.  Rep.  388.  And  as  assignee 
or  subtenant  can  enforce  the  covenant  to  renew.  Warner  v.  Cochrane, 
128  Fed.  Rep.  553,  63  C.  C.  A.  24.  A  clause  that  the  premises  were 
demised  for  a  period  of  one  year,  with  the  privilege  of  longer,  is  too 
indefinite  to  be  enforced.  Howard  v.  Tomichie  (Miss.  1903),  33  So.  Rep. 
493.  Remaining  in  possession  is  generally  sufficient  evidence  of  an 
election  to  renew  the  lease.  Jackson  v.  Doll,  109  La.  230,  33  So.  Rep. 
207;  Brown  v.  Samuels  (Ky.  1902),  70  S.  W.  Rep.  1047;  Montgomery 
V.  Co.  Com.,  76  Ind.  362;  Kimball  v.  Cross,  136  Mass.  300;  Harding  v. 
Seley,  148  Pa.  St.  20,  23  Atl.  Rep.  1118;  Mershon  v.  Williams,  62  N.  J. 
Law  779,  42  Atl.  Rep.  778. 
206 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    160 

ing  to  their  intentions,  as  expressed  in  their  agreements. 
If  the  intention  appears  to  be,  that  the  land-owner  shall  lease 
the  land  to  the  farmer  and  that  his  share  of  the  crop  shall 
be  received  in  lieu  of,  or  as,  rent,  the  relation  of  landlord  and 
tenant  is  created.  Under  these  circumstances  the  tenant  has 
such  a  vested  interest  in  the  land,  as  that  he  may  convey  by 
a  recorded  deed  the  future  crops,  and  the  grantee's  title 
will  prevail  against  an  attachment  by  his  creditors.'"'  The 
tenant  is  in  possession  of  the  land,  and  the  landlord  has  no 
vested  interest  in  the  crop,  as  a  crop.  His  rights  in,  or  to, 
any  part  of  the  crop  attach  only  upon  a  division  and  delivery 
of  the  same,^®  and  the  landlord  has  no  action  against  the 
tenant  for  the  delivery  of  his  share  of  the  crop  until  de- 
mand has  been  made  of  the  tenant  for  such  delivery.^^  If 
the  tenant  abandons  the  farm  while  the  crop  is  growing,  and 
rescinds  his  agreement  thereby,  he  loses  all  his  interest  in 
the  growing  crop  under  the  law  of  emblements.^*    But  if  one 

75  Walworth  v.  Jennes,  58  Vt.  670;  Yates  v.  Kinney,  19  Neb.  275. 

T«  Aiken  f.  Smith,  21  Vt.  181;  Caswell  v.  Districh,  15  Wend.  379; 
Herskell  V.  Bushnell,  37  Conn.  43;  Burns  v.  Cooper,  31  Pa.  St.  420; 
Rinehart  V.  Olwine,  5  Watts  &  S.  457 ;  Butterfield  v.  Baker,  5  Pick. 
522;  Newcomb  V.  Ramer,  2  Johns.  421;  Hatchell  V.  Kinsbrough,  4 
Jones  (N.  C.)  163;  Jordan  f.  Bryan,  103  N.  C.  59;  Pelton  v.  Draper, 
61  Vt.  364.  And  until  division,  they  may  be  attached  by  creditors  as 
the  property  of  the  lessee.  Kelly  v.  Weston,  20  Me.  232;  Deaver  v. 
Rice,  4  Dev.  &  B.  431 ;  Ross  V.  Swaringer,  9  Ired.  481.  In  some  of  the 
States  it  is  provided  by  statute  that  the  lessor  will  in  such  case  have 
a  lien  on  the  undivided  crop  for  his  rent.  Hopper  v.  Haines,  71  Md.  64 
The  parties  may  also  expressly  provide  for  a  lien.  Koeleg  v.  Phelps 
(Mich.),  45  N.  W.  Rep.  350. 

77  Johnson  i*.  Shank,  67  Iowa  1 15.  A  provision  that  crops  are  to  re- 
main the  property  of  the  lessor,  until  harvested,  is  valid,  in  California. 
Summerville  v.  Stockton  Co.,  142  Cal.  529,  76  Pac.  Rep.  243.  A  leas- 
ing of  land,  for  farm  purposes,  on  shares,  in  Wisconsin,  is  held  to 
create  the  relation  of  landlord  and  tenant.  Rowlands  v.  Voechting,  115 
Wis.  352,  91  N.  W.  Rep.  990.  See  also,  Northness  v.  Hillstead,  87 
Minn.  304,  91  N.  W.  Rep.  1112;  Alexander  v.  Zeigler  (Miss.  1904),  36 
So.  Rep.  536. 

"sKiplinger  v.  Meeks,  61  Mich.  341;  Pelton  v.  Draper,  61  Vt.  364. 
The  tenant,  under  a  lease  on  the  shares,  can  assert  a  laborer's  lien  on 

207 


§    160  ESTATES   FOR   YEARS.  [PART   I. 

is  employed  to  work  a  farm,  with  the  understanding  that 
the  crop  shall  be  divided  between  him  and  the  land-owner, 
and  there  is  no  apparent  intention  of  leasing  the  lands  and 
taking  the  share  for  rent,  the  farmer  has  no  estate  in  the 
land  beyond  a  license  to  go  upon  it  for  the  purposes  of  culti- 
vation; the  land-owner  is  in  possession  of  the  land,  and  must 
maintain  all  suits  for  trespass  and  other  injuries  to  the 
land.  The  parties  are  tenants  in  common  of  the  crop  to  the 
amount  of  their  respective  shares,  from  the  time  of  plant- 
ing until  a  division  and  settlement  is  made;"®  and  the  share 
of  each  in  the  crop  is  at  all  times,  after  planting,  subject 
to  the  claims  of  creditors.*"  A  third  relation  may  exist  be- 
tween the  parties,  viz. :  that  of  employer  and  employee,  where 
the  farmer  is  given  his  share  of  the  crop,  not  as  a  partner 
or  tenant  in  common,  but  as  wages.  Whenever  that  re- 
lation was  intended  by  the  parties,  the  farmer  has  no  title  to 
any  part  of  the  crop  until  his  share  has  been  set  apart  for 
him,^^  and  he  may  be  discharged  for  cause.     His  rights  in 


the  crops,  in  Georgia.     DeLoach  v.  Delk,  119  Ga.  884,  47  S.  E.  Rep.  204. 

7»  Tanner  v.  Hills,  48  N.  Y.  362;  Bradish  v.  Schenk,  8  Johns.  151; 
Foote  r.  Colvin,  3  Johns.  216;  Chandler  v.  Thurston,  10  Pick.  205;  Dan- 
iels r.  Brown,  34  N.  H.  454;  Esdon  v.  Colbnrn,  28  Vt.  631;  Jordan 
r.  Staples,  57  Me.  455 ;  Guest  r.  Opdyke,  30  N.  J.  L.  544 ;  Steel  v.  Frick, 
56  Pa.  St.  172;  Walker  v.  Fitts,  24  Pick.  191;  Delaney  V.  Root,  99 
Mass.  550;  Reynolds  r.  Reynolds,  48  Hun  142;  Adams  v.  State,  87  All. 
89;  \Yoodward  v.  Conder,  33  Mo.  App.  147.  If  the  farmer  is  a  minor 
the  presumption  is  against  a  tenancy  of  the  land,  and  he  will  be  held 
to  be  a  tenant  in  common  with  the  land-owner  of  the  crop.  Loomis 
V.  O'Neal,  73  Mich.  582.  The  tenant  may  in  such  a  case  assign  his 
interest  in  the  crop.  Aiken  v.  Smith,  21  Vt.  182.  But  see  Kelly  v. 
Watson,  20  Me.  232 ;  Brown  v.  Lincoln,  47  N.  H.  469 ;  Harris  v.  Frink, 
49  N.  Y.  21.  If  the  land-owner  ejects  the  farmer  before  the  crop  is 
ripe  for  the  harvest,  the  latter's  right  in  the  crop  is  not  thereby 
disturbed.  He  can  sue  the  land-owner  for  his  share  in  trover  or  re- 
plevin.    Loomis  v.  O'Neal,  73  Mich.  582. 

soSchell  V.  Simon,  66  Cal.  264;  Stickney  v.  Stickney,  77  Iowa  699; 
Hoppenn  v.  Haines   (Ind.),  18  Atl.  Rep.  29. 

81  Hammock  v.  Creekmore,  48  Ark.  264;  Hendricks  v.  Smith    (Ark.;, 
12  S.  W.  Rep.  781. 
208 


CH.    VIII.]  ESTATES   FOR   YEARS.  §    161 

the  contract  are  of  a  personal  nature,  and  cannot  be  as- 
signed to  another,  at  least  while  the  contract  remains  execu- 
tory.*- It  is  very  often  difficult  to  determine  which  of 
these  relations  such  a  contract  creates.  The  only  guide  is 
the  intention  of  the  parties,  and  no  general  rules  can  be 
given  except  those  above  presented,  unless,  it  may  perhaps 
be  added,  that  it  seems  to  be  a  presumption  of  law  that  the 
relation  is  one  of  landlord  and  tenant,  unless  the  contrary 
intention  appears.*'  If  the  farmer  should  purchase  the  re- 
version to  the  land  under  a  judgment  against  the  owner, 
the  claims  of  such  owner,  under  the  contract  for  working 
the  land  on  shares,  would  pass  to  the  purchaser  as  an  ap- 
purtenant, and  would  become  merged  in  the  farmer's  gen- 
ei-al  ownership  of  the  land.** 

§  161.  Actions  between  landlords  and  tenants. —  Under  the 
landlord  and  tenant  statutes  of  many  State:-;,  the  rights  of 
the  respective  parties  to  a  lease  are  regulated  by  statute 
and  specific  remedies  are  provided  for  any  interference  with 

82  Jeter  v.  Penn,  28  La.  An.  230. 

S3  Birmingham  v.  Rogers,  40  Ark.  254. 

»♦  Culverhouse  v.  Worts,  32  Mo.  App.  419.  Where  the  interest  of  the 
landlord,  in  a  renting  on  shares  in  certain  crops  is  specified,  the  same 
interest  attaches  in  those  not  so  mentioned,  if  of  the  same  nature  and 
value.  Black  V.  Golden  (Mo,  1904),  78  S.  W.  Rep.  301. 
The  effect  of  a  farm  lease,  in  Pennsylvania,  where  the  share 
of  the  tenant  in  several  crops  was  specified,  was  held  to  vest  that  share 
of  those  crops  in  him  absolutely  and  the  whole  of  all  other  crops  not 
80  specified.  In  re  Luckinbill,  127  Fed.  Rep.  984.  The  tenant,  under  a 
renting  on  shares,  has  such  an  interest  in  the  crops  as  to  enable  him 
to  sue  for  any  injury  to  his  crops.  Parker  v.  Hale  (Tex.  1903),  78 
S.  W.  Rep.  555;  Sowles  v.  Martin  (Vt.  1904),  50  Atl.  Rep.  979;  North- 
ness  V.  Hillstead,  87  Minn.  304,  91  N.  W.  Rep.  1112;  Vincent  v.  Crane 
(Mich.  1903),  97  N.  W.  Rep.  34.  The  landlord  is  given  a  lien  on  crops 
raised  on  the  shares  in  Missouri  (Crane  V.  Murray,  100  Mo.  App.  097, 
80  S.  W.  Rep.  280)  ;  Texas  (Planters  Compress  Co.  v.  Howard,  80  S.  W. 
Rep.  119);  Iowa  (Stabler  v.  Collins,  100  N.  W.  Rep.  527);  South 
Carolina  (State  v.  Ellmore,  08  S.  C.  140,  40  S.  E.  Rep.  939)  ;  Illinois 
(Springer  v.  Lipsis,  209  111.  201,  70  N.  E.  Rep.  041),  and  several  other 
States. 

14  209 


§  161  ESTATES  FOR  YEARS.  [PAKT  I. 

the  rights  of  the  tenant  by  the  landlord  and  vice  versa; 
actions  are  sometimes  afforded  for  the  enforcement  of  a 
lien  for  the  rent  by  the  landlord  and  for  the  recovery  of 
possession,  under  summary  proceedings,  wherein  the  service 
of  process  is  shortened  and  other  essentials  of  the  common 
law  actions  are  dispensed  with.^'  A  consideration  of  these 
various  actions  will  not  be  attempted  here,  for  the  student 
and  practitioner  would  necessarily  have  to  consult  the  best 
evidence  of  such  statutory  provisions,  the  statutes  them- 
selves, as  to  the  specific  provisions  of  each.  At  common  law, 
the  lessor  was  generally  held  liable  for  injuries  to  the  lessee 
or  his  family,  from  known  defects  in  the  demised  premises, 
existing  at  the  time  of  the  demise,®'  but  for  injuries  either 
to  persons  or  property,  arising  from  defects  which  come  to 
the  leased  premises,  subsequent  to  the  demise,  the  lessee,  in 
the  absence  of  covenant  by  the  landlord,  would  be  respon- 
sible ®^  and  for  all  injuries  to  the  freehold  the  right  of  action 

85  See  3  Joyce  Dam.,  Sees.  1841-2229,  for  full  discussion  of  these 
various  statutory  remedies. 

86  A  landlord  is  generally  liable  to  a  tenant  for  injuries  from  de- 
fects in  premises  when  demised.  Udder  v.  O'Reilly,  180  Mo.  650,  79 
S.  W.  Rep.  691 ;  Donk  Bros.  Coal  Co.  v.  Leavitt,  109  111.  App.  38.5.  But 
landlord  must  generally  know  of  defect  to  render  him  liable.  Whitely 
1?.  McLaughlin,  183  Mo.  160,  81  S.  W.  Rep.  1094;  Schoppel  r.  Daly, 
112  La.  201,  36  So.  Rep.  322.  For  liability  of  landlord  for  known  de- 
mise of  defective  premises  see,  Davis  V.  Smith,  26  R.  I.  129,  58  Atl.  Rep. 
630;  Minor  i'.  Sharon,  112  Mass.  477,  17  Amer.  Rep.  122,  1  L.  R.  A.  429; 
Sternberg  v.  Wilcox,  96  Tenn.  163,  33  S.  W.  Rep.  917,  34  L.  R.  A.  615; 
Anderson  v.  Hays,  101  Wis.  538,  77  N.  W.  Rep.  891,  70  Amer.  St.  Rep. 
930. 

87  The  lessee  alone  and  not  the  lessor  is  liable  for  an  injury  to  his 
employees  and  others,  from  a  failure  to  keep  the  leased  premises  in  re- 
pair, in  the  absence  of  a  covenant  on  the  lessor's  part.  King  V.  Creek- 
more  (Ky.  1903),  77  S.  W.  Rep.  689;  McConnell  v.  Lemley,  34  L.  R.  A. 
609;  Ocean  S.  S.  Co.  v.  Hamilton,  112  Ga.  901,  38  S.  E.  Rep.  204; 
Whitmore  V.  Paper  Co.,  91  Me.  297,  39  Atl.  Rep.  1032,  40  L.  R.  A.  377, 
64  Amer.  St.  Rep.  229;  Harrison  v.  Jelly,  175  Mass.  292,  56  N.  E.  Rep. 
283;  Griffin  v.  Manice,  166  N.  Y.  188,  59  N.  E.  Rep.  925,  52  L.  R.  A. 
922,  82  Amer.  St.  Rep.  630;  Petterson  v.  Brewing  Co.  (S.  D.),  91  N. 
W.  Rep.  336;  Fehlhauer  V.  St.  Louis,  178  Mo.  635,  77  S.  W.  Rep.  843; 

210 


CH.   VIII.]  ESTATES   FOR   YEARS.  §    16l 

would  be  in  the  landlord,  while  the  lessee  alone  could  sue  for 
injuries  to  his  possession.** 

Lyon  V.  Bauerman  (X.  J.  1904),  57  Atl.  Rep.  1009;  Prahar  v.  Tausey, 
87  N.  Y.  S.  845;  Sheridan  f.  Forsee,  106  Mo.  App.  495,  81  S.  W.  Rep. 
494;  Kenny  r.  Barnes,  67  Mich.  336,  34  N.  W.  Rep.  587;  White  v. 
Montgomery,  58  Ga.  204. 

88  For  all  injuries  to  the  freehold  the  landlord  may  sue,  during  the 
continuance  of  the  term.  Arnold  v.  Bennett,  92  Mo.  App.  156.  But  for 
all  injuries  to  the  possession,  not  amounting  to  injuries  to  the  freehold^ 
the  right  of  action  is  in  the  tenant.  Southern  Ry.  Co.  v.  State,  116  Ga, 
276,  42  S.  E.  Rep.  508. 

211 


■^ 


SECTION  II. 

ESTATES  AT  WILL  AND  TENANCIES  FROM  YEAR  TO  YEAR. 

Section  162.  Estates  at  will. 

163.  How  estates  at  will  may  be  determined. 

164.  Estates  at  will  distinguished  from  tenancy  from  year  to 

year. 

165.  Tenancy  at  will  —  What  now  included  under  that  term. 

166.  Tenancy  at  will  —  Arising  by  implication  of  law. 

167.  Qualities  of  tenancies  from  year  to  year. 

168.  What  notice  is  required  to  determine  tenancy  from  year 

to  year. 

169.  How  notice  may  be  waived. 

§  162.  Estates  at  will. —  Estates  at  will  are  those  estates 
which  are  determinable  at  the  will  of  either  party,  and  arise 
only  upon  actual  possession  being  taken  by  the  tenant.*''  The 
tenant  at  will  has  no  interest  in  the  land  which  he  can  con- 
vey to  others.  The  relation  and  tenure  of  landlord  and 
tenant  exists  between  the  original  parties  ta  the  demise,  but 
it  does  not  pass  to  the  tenant's  assignee.  The  landlord  may 
treat  such  assignee  as  a  disseisor,  unless  he  accepts  rent  ac- 
cruing subsequent  to  the  assignment.  By  acceptance  of  rent 
the  assignment  would  be  confirmed,  and  the  assignee  recog- 
nized as  tenant.""     The  estate  of  the  lessor  of  a  tenant  at 

8f>Co.  Lit.  55  a,  57  a;  1  Washburn  on  Real  Prop.  581;  2  Prest.  Abst. 
26;  Pollock  V.  Kittell,  2  Tayl.  152.  The  mere  occupation  of  land  with 
the  knowledge  of  the  owner,  but  without  his  consent,  does  not  create  a 
tenancy  at  will,  in  Missouri.  Center  Cr.  Min.  Co.  v.  Frankenstein,  179 
Mo.  564,  78  S.  W.  Rep.  785. 

00  Co.  Lit.  57  a ;  1  Washburn  on  Real  Prop.  582 ;  Cunningham  v, 
Houlton,  55  Me.  33 ;  Cunningham  v.  Horton,  57  Me.  422 ;  King  v.  Law- 
son,  98  Mass.  309 ;  Hilbourn  v.  Fogg,  99  Mass.  12 ;  Holbrook  v.  Young, 
108  Mass.  85;  Reckow  v.  Schanck,  43  N.  Y.  448.  While  a  tenant  at 
will   has  not  such   an   interest  as  to  enable  him  to  make  a   valid   as- 

212 


CH.    Vm.]  ESTATES   AT   WILL.  §    163 

will  is  not  strictly  a  reversion,  for  the  interest  of  the  ten- 
ant is  "a  mere  scintilla  of  interest,  which  a  landlord  may 
determine  by  making  a  feoffment  upon  the  land  with  livery, 
or  by  a  demand  of  possession."  A  remainder  cannot  be 
limited  upon  an  estate  at  will.®^  The  tenant,  however,  is  en- 
titled to  estovers,  and  also  to  emblements,  when  the  tenancy 
is  determined  by  the  landlord.*-  And  he  will  also  be  liable 
in  damages  for  the  commission  of  waste,  although  the  tech- 
nical action  of  waste  might  not  lie.®' 

§  163.  How  estates  at  will  may  be  determined. —  An  estate 
at  will  may  be  determined  by  any  act  of  either  party  which 
indicates  an  intention  to  put  an  end  to  the  tenancy,  or 
which  is  inconsistent  with  the  continuance  of  the  relation  of 
landlord  and  tenant."*  The  death  of  either  party  determines 
the  estate.  If  the  lessor  dies,  the  estate  becomes  a  tenancy 
at  sufferance,  and  the  lessee's  personal  representatives,  in 
case  of  his  death,  have  no  right  to  possession  under  the  ten- 
ancy.°°     The  tenancy  will,  however,  survive,  if  only  one  of 

signment  thereof,  if  the  landlord  elects  to  recognize  his  assignee,  such 
assignment  will  be  valid.  Cunningham  v.  Holten,  5.5  Me.  33.  The  pos- 
session of  a  tenant  at  will,  is  a  rightful  possession,  as  he  is  in  with  the 
consent  of  the  landlord,  either  express  or  implied.  Willis  v.  Harrell, 
118  Ga.  906,  45  S.  E.  Rep.  794. 

91  1  Washburn  on  Real  Prop.  584;  Ball  v.  CuUimore,  2  Cromp.  M.  & 
R.  120. 

»2  Co.  Lit.  55  b;  1  Washburn  on  Real  Prop.  584;  Davis  v.  Thompson, 
13  Me.  209;  Brown  V.  Thurston,  56  Me.  126.  A  tenancy  at  will  arises 
whenever  there  is  a  holding  over  by  the  lessee  and  all  the  rights  of 
such  tenancies,  such  as  the  right  to  take  ice  from  a  pond  on  the  prem- 
ises, attaches  to  such  tenancy.  Walker  Ice  Co.  t'.  American  Steel  Co., 
185  Mass.  463,  70  N.  E.  Rep.  937. 

83  Co.  Lit.  57  a;  Campbell  v.  Proctor,  6  Me.  12;  Daniels  v.  Pond,  21 
Pick.  309;  Phillips  V.  Covert,  7  Johns.  1. 

»*  Turner  v.  Doe,  9  M.  &  W.  643;  Doe  v.  Prince,  9  Ring.  356;  Wal- 
den  V.  Bodley,  14  Pet.  102;  Esty  V.  Baker,  50  Me.  325;  Curl  v.  Lowell, 
19  Pick.  25;  Pratt  v.  Farrar,  10  Allen  519;  Jackson  v.  Aldrich,  13 
Jolins.  66;  Den  v.  Howell,  7  Ired.  496;  Hildreth  v.  Conant,  10  Mete 
298;  Curtis  v.  Galvin,  1  Allen  216. 

213 


§    163  ESTATES   AT    WILL.  [pART   I. 

two  or  more  lessees  dies.""  Any  assig:nment  or  conveyance 
of  the  reversion,  whether  voluntary  or  involuntary,  Vvill 
destroy  the  tenancy."^  The  assignment  or  conveyance  by 
the  tenant  will  have  the  same  effect,  as  soon  as  the  land- 
lord has  received  notice  of  it.  Until  notice,  the  landlord 
may  continue  to  treat  the  lessee  as  his  tenant.®*  The  estate 
at  will  in  the  cases  above  enumerated  would  be  wholly  de- 
termined, immediately  upon  the  commission  of  the  act,  or 
occurrence  of  the  event.  But  the  tenant  is  allowed  a  reason- 
able time  thereafter,  within  which  to  move  his  effects  from 
the  premises;  and  where  he  is  entitled  to  emblements,  he 
may  still  enter  upon  the  land  for  the  purpose  of  cultivating 
and  harvesting  the  crops.®"  No  notice  to  quit  is  ever  re- 
quired to  determine  the  estate  at  will;  this  was  the  early 
common-law  rule,  and  still  obtains  as  an  invariable  incident 
of  estates  strictly  at  will.^ 

»5jar.:e8  v.  Dean,  11  Ves.  391;  Morton  v.  Woods,  L.  R.  4  Q.  B.  300; 
Eeed  v.  Reed,  48  Me.  388;  Howard  v.  Meniani,  5  Cusli.  563;  Ferrin 
i\  Kenney,  10  Mete.  294. 

96  1  Washburn  on  Real  Prop.  586;  Co.  Lit.  55  b. 

9TDoe  V.  Thompson,  6  Eng.  Law  &  Eq.  487;  Hill  r.  Jordan,  30  Me. 
367;  Morse  r.  Goddard,  13  Mete.  177;  Howard  r.  Meniam,  5  Cash. 
563;  Hemphill  v.  Tevis,  4  Watts  &  S.  535;  Groustra  v.  Bourges,  141 
Mass.  71.  Changes  in  the  personnel  of  a  tenant  partnership,  from  a 
partnership  to  a  corporation,  acquiesced  in  by  the  lessor,  does  not  end 
a  tenancy  at  will,  as  there  is  no  interruption  cf  the  occupancy.  Walker 
Ice  Co.  r.  American  Steel  Co.,  185  Mass.  463,  70  X.  E.  Rep.  937. 

9«  Co.  Lit.  57  a ;  Pinhorn  v.  Souster,  20  Eng.  Law  &  Eq.  501 ;  Kelly 
r.  Waite,  12  Mete.  300;  Cooper  v.  Adams,  6  Cush.  87;  Sprague  v.  Quin, 
108  Mass.  5.54;  Cole  V.  Lake  Co.,  54  N.  H.  277 ;  .Den  V.  Howell,  7  Irod. 
496.  The  tenancy  may  also  be  determined  by  the  tenant's  disclaimer 
of  holding  under  his  lessor.  Woodward  v.  Brown,  13  Pet.  1 ;  Bennock 
r.  Whipple,  12  Me.  346;  Russell  v.  Fabyan,  34  N.  H.  223;  Towne  v.  But- 
terfield,  99  Mass.  105;  Boston  v.  Binney,  11  Pick.  1;  Chamberlain  v.  Don- 
ahue, 45  Vt.  55;  Sharpe  v.  Kelly,  5  Denio  431;  Harrison  v.  Middleton, 
11  Gratt.  527;  Duke  v.  Harper,  6  Yerg.  280. 

99  Co.  Lit.  56  b;  Doe  v.  McKaeg,  10  B.  &  C.  721;  Turner  V.  Doe,  9 
]M.  &  W.  647;  Ellis  r.  Paige,  1  Pick.  43;  Rising  v,  Stannard,  17  Mass. 
282. 

iHall  r.  Burgess,  5  B.  &  C.  332;  Elliott  V.  Stone,  1  Gray  571;  Stone 
214 


CH.   VIII.]  ESTATES  AT  WILL.  §    164 

§  161.  Estate  at  will  distin^ished  from  tenancy  from  year 
to  year. —  In  consequence  of  the  many  hardships  resulting 
from  the  uncertain  tenure  of  estates  at  will,  and  the  too 
often  arbitrary  and  sudden  determination  of  them  by  les- 
sors, it  became  at  an  early  day  a  rule  of  law  that,  where 
rent  was  reserved  and  paid  by  the  lessee,  the  lessor  could 
not  terminate  the  tenancy  without  giving  due  notice  of  his 
intention  to  do  so.  Tenancies  at  will,  where  no  rent  was  re- 
served, could  be  terminated  immediately  upon  notice.-  And 
it  was  obviously  equitable  that,  in  the  institution  of  such  a 
rule,  notice  to  the  lessor  should  be  required  in  case  the  ten- 
ant should  wish  to  determine  the  estate.'     In  this  way,  by 

V.  Sprague,  20  Barb.  509;  Chilton  r.  Niblett,  3  Humph.  404;  Brown 
r.  Keller,  32  111.  152.  No  notice  is  required  where  the  tenancy  is  de- 
termined by  the  tortious  acts  of  the  tenant.  Lamed  v.  Clark,  8  Cush. 
29;  Titttle  r.  Reynolds,  1  Vt.  80;  Jackson  V.  Deyo,  3  Johns.  422;  Ross 
V.  Garrison,  1  Dana  35;  Clemens  v.  Eromfield,  19  Mo.  118.  And,  like- 
wise, there  is  no  notice  required  where  the  tenancy  at  will  is  an  estate 
upon  condition  or  limitation,  and  the  condition  is  broken,  or  the  limi- 
tation expires.  Elliott  v.  Stone,  1  Gray  575;  Ashley  v.  Warner,  11  Gray 
45 ;  Bolton  r.  Landers,  27  Cal.  105.  A  tenant  at  will  or  sufferance 
either  is  entitled  to  notica  to  quit,  under  Michigan  statute.  Simons  V. 
Detroit  Drill  Co.  (1904),  99  N.  W.  Bep.  802.  Notice  is  essential  to  ter- 
rain.'-to  a  tenancy  j;t  will,  under  the  Minnesota  statute.  Van  Brunt  V. 
Wallace,  92  N.  V/.  Rop.  521.  At  common  law  no  notice  was  necessary 
to  terminate  either  a  tenancy  at  Avill  or  at  sufferance!  And  such  no- 
tice is  not  row  required,  i.nless  a  specific  statute  so  requires.  Kenin 
V.  Guvernator  (N.  J.  1901),  48  Atl.  Rep.  1023;  Joy  v.  McKay,  70  Cal. 
445,  11  Pac.  Rep.  763;  McLeran  v.  Benton,  73  Cal.  329,  14  Pac.  Rep. 
879;  Reed  r.  Reed,  48  Me.  388;  Howard  V.  Carpenter,  22  Md.  10; 
Moore  r.  Smith,  56  N.  J.  L.  440,  29  Atl.  Rep.  159;  Anderson  V.  Brew- 
ster, 44  Ohio  St.  576,  9  N.  E.  Rep.  683.  Although  the  Missouri  statute 
provides  for  a  thirty  days'  notice  to  end  a  tenancy  at  will,  this  pro- 
vision does  not  apply,  where,  by  agreement,  *&  longer  notice  is  provided 
for.  Roth  Tool  Co.  f.  Champ  Spring  Co.,  93  Mo.  App,  530,  67  S.  W. 
Rep.  967. 

2  1  Washburn  on  Real  Prop.  583,  586,  597 ;  Dame  v.  Dame,  38  N.  H. 
429;  Doe  r.  Watts,  1  T.  R.  83;  Doe  V.  Porter,  3  T.  R.  13;  Kingsbury 
V.  Collins,  4  Ring.  (13  E.  C.  L.  R.)  202;  Izon  V.  Gorton,  5  Bing.  N.  C. 
<35  E.  C.  L.  R.)  501. 

•  Kighly  i;.  Bulkly,  Sid.  338;  Besscll  v.  Landsberg,  7  Ad.  &  E.  638; 

215 


§  164  ESTATES  AT  WILL.  [PART  I. 

a  course  of  judicial  lef?islation,  arose  a  class  of  estates  which 
are  for  an  uncertain  period,  but  which  differ  from  the  com- 
mon-law estates  at  will,  in  that  they  are  tenancies  for  an 
uncertain  number  of  fixed  periods  of  time,  their  duration 
being  rejrulated  by  the  manner  of  paying  the  rent,  i.  c,  by 
the  month,  quarter  or  year,  and  which  continue  to  exist  as 
long  as  the  required  notice  to  quit  is  not  given  by  either  of 
the  parties.  These  estates  are  called  tenancies  from  year  to 
year.*  The  tests  by  which  it  is  determined  whether  an  es- 
tate for  an  uncertain  period  is  a  tenancy  from  year  to  year, 
and  not  one  at  will,  are  the  reservation  of  rent  and  the  neces- 
sity of  giving  notice  in  order  to  determine  the  tenancy.  If 
the  rent  is  reserved,  and  notice  to  quit  is  required,  it  is  a 
tenancy  from  year  to  year,  and  the  length  of  the  fixed,  in- 
determinable period  of  the  tenancy  is  governed  by  the  time 
of  paying  the  rent."     But  it  is  always  within  the  power  of 

Johnstone  v.  Huddlestone,  4  Barn.  &  Cress.  923;  Cooke  V.  Neilson,  10 
Burr.  41;  Hall  v.  Wadsworth,  28  Vt.  410;  Morehead  v.  Watkins,  5  B. 
Mon.  228 ;  Holliday  V.  Aehle,  99  Mo.  273. 

4  Right  r.  Darby,  1  T.  R.  159;  Hamerton  v.  Stead,  3  B.  &  C.  478; 
Hall  V.  Wadsworth,  28  Vt.  410;  McDowell  v.  Simpson,  3  Watts  129; 
Lesley  r.  Randolph,  4  Rawle  123 ;  Jackson  r.  Salmon,  4  Wend.  327 ;  Web- 
ber r.  Shearman, -S  Hill  547;  Patton  v.  Axley,  5  Jones  L.  440;  Den 
V.  Drake,  14  N.  J.  L.  523;  Godard  r.  Railroad  Co.,  2  Rich.  L.  346;  Ridg- 
ley  V.  Stillwell,  28  Mo.  400.  A  definite  tenancy  from  year  to  year, 
does  not  require  any  notice  to  quit.  Cobb  v.  Stokes,  8  East  358; 
Preble  r.  Hay,  32  Me.  456;  Dorr  ill  v.  Johnson,  17  Pick.  263;  Allen  v. 
Jacquish,  21  Wend.  628;  Jackson  r.  McLeod,  12  Johns.  182;  Den  V. 
Adams,  12  N.  J.  L.  99;  Lesley  v.  Randolph,  4  Rawle  125;  Logan  V. 
Herron,  8  Serg.  &  R.  459;  Walker  v.  Ellis,  12  111.  470.  Under  statute,. 
in  Georgia,  any  letting,  where  the  period  of  the  tenancy  is  not  specified, 
is  a  tenancy  for  the  calendar  year.  Willis  v.  Harrell,  118  Ga.  906,  4& 
S.  E.  Rep.  794.  But  in  Nebraska,  the  intent  of  the  parties  controls. 
Pusey  V.  Presbyterian  Hospital,  97  N.  W.  Rep.  475. 

5  Richardson  V.  Landridge,  4  Taunt.  128 ;  Doidge  v.  Bowers,  2  M.  & 
W.  365;  Rich  v.  Bolton,  4G  Vt.  84,  14  Am.  Rep.  615;  Jackson  r.  Bradt, 
2  Caines  169;  McDowell  r.  Simpson,  3  Watts  129;  Doe  v.  Baker,  4  Dev. 
220;  Shipman  v.  Mitchell,  64  Tex.  174.  In  IMaine  and  Massachusetts 
the  doctrine  of  tenancies  from  year  to  year  has  never  been  adopted; 
ind  although  notice  is  now  required  to  determine  those  tenancies  which,. 

216 


en.    Vm.]  ESTATES   AT   WILL.  §    164 

the  parties,  by  express  agreement,  to  give  to  the  estate  the 
characteristics  of  a  tenancy  at  will,  even  though  the  rent  is 
reserved.  And  if  in  such  a  case  the  tenancy  is  determined 
by  the  lessor  between  the  interval  of  payment  of  the  rent, 
the  landlord  can  only  recover  rent  accruing  up  to  the  last 
pay-day.®  The  term  "year"  in  the  tenancy  from  year  to 
year  is  here  used  as  a  unit  of  time,  and  under  the  term 
tenancy  from  year  to  year  are  included  tenancies  from  month 
to  month,  quarter  to  quarter,  and  the  like,  in  the  same  man- 
ner as  an  estate  for  years  includes  an  estate  for  one  month." 
Mr.  Washburn  seems  to  exclude  these  estates  from  the  ten- 
ancies fVom  year  to  year,  and  calls  them  tenancies  at  will, 
in  which  notice  to  quit  is  required.^  There  is  no  necessity 
for  this  distinction,  and  the  classification  here  employed 
seems  to  bring  out  more  prominently  the  distinctive  features 
of  estates  at  will,  and  tenancies  from  year  to  year. 

in  other  States,  would  come  under  the  name  of  tenancies  from  year 
to  year,  they  are  not  recognized  there  as  ha^'ing  the  characteristics  of 
durability,  which  are  given  to  them  elsewhere.  See  Moore  V.  Boyd,  24 
Me.  242;  Withers  V.  Larrabee,  48  Me.  513;  Rising  v.  Stannard,  17 
Mass.  282;  Furlong  V.  Leary,  8  Cush.  409;  Walker  v.  Furbush,  11 
Cush.  366;  Bunton  v.  Richardson,  10  Allen  260;  Hillbourn  V.  Fogy,  90 
Mass.  1. 

6  Richardson  r.  Landgridge,  4  Taunt.  128;  Doe  r.  Cox,  11  Q.  B.  122; 
Cameron  r.  Little,  62  Me.  550;  Elliott  v.  Stone,  1  Gray  571;  Harrison 
r.  Middleton,  11  Gratt.  .527;  Sullivan  v.  Enders,  3  Dana  66;  Withnell 
V.  Petzold,  17  Mo.  App.  669. 

7  See  Anderson  r.  Prindle,  23  Wend.  610.  A  tenancy  from  month  tt> 
month  is  usually  treated  as  a  tenancy  from  year  to  year  and  the  same 
incidents  attach,  aside  from  the  periods  of  payment  and  the  time  for 
notice  to  terminate  such  tenancies.  Taylor  Land  &  Ten.,  57 ;  Hollis  «. 
Burns,  100  Pa.  St.  206;  Tiffany  Real  Prop.,  Sec.  57,  p.  146. 

8  1  Washburn  on  Real  Prop.  598,  599,  610. 

0  Richardson  v.  Landgridge,  4  Taunt.  128 ;  Doe  v.  Wood,  14  M.  &  W. 
682 ;  Garrard  r.  Tuck,  8  C.  B  231 ;  Rex  i'.  CoUett,  1  Russ.  &  Ry.  498 ; 
Melling  r.  Leak,  16  C.  B.  652;  Gould  i*.  Thompson,  4  Mete.  224;  Jack- 
son f.  Pierce,  2  Johns.  226;  Bedford  V.  Terhune,  30  N.  Y.  465;  Mat- 
thews I*.  Ward,  10  Gill  &  J.  456.  And  where  tenant  is  in  possession 
without  agreement  as  to  paying  rent  or  the  length  of  his  holding,  and  he 
refuses  to  pay  rent,  the  tenancy  is  strictly  one  at  will,  although  he  has 

217 


§  166  ESTATES  AT  WILL.  [PART  I. 

s  165.  Tenancy  at  will  —  "T/hat  now  included  under  that 
term. —  As  the  law  now  stands,  an  express  tenancy  at  will  can 
only  arise  under  two  circumstances:  first,  where  land  is  leased 
for  an  indefinite  period,  and  no  rent  is  reserved  for  its  nse 
and  occnpation,"  and,  secondly,  where  there  is  rent  reserved. 
and,  by  the  express  agreement  of  the  parties,  the  tenancy 
is  to  have  the  characteristics  of  a  tenancy  at  will.  Parties 
may  agree  to  waive  the  right  to  notice.^" 

§  166.  Tenancy  at  will  —  Arising  by  implication  of  law. — 
When  a  tenant  enters  upon  the.  land  for  some  other  purpose 
than  to  create  the  relation  of  landlord  and  tenant,  and  his 
entry  is  under,  and  in  pursuance  of,  a  grant  to  him  of  a 
larger  and  more  definite  interest,  until  such  interest  is  vested 
in  him,  the  law  treats  and  considers  his  possession  as  that 
of  a  tenant  at  will.  Such  would  be  the  case  where  one  is 
permitted  to  enter  into  possession  under  a  contract  for  the 
purchase  of  the  land,  or  for  a  future  lease  of  the  same." 
The  tenant  would  not  be  liable  for  rent  for  the  time  he 

l)ecn  in  possession  fourteen  years,  and  the  six  months'  notice  required 
in  cases  of  tenancies  from  year  to  year  is  not  necess"-ry  to  terminate  his 
tenancy.  Eich  r.  Bolton,  46  Vt.  84,  14  Am.  Rep.  315;  Dunne  r.  Tius- 
tees,  etc.,  36  111.  518. 

10  Richardson  v.  Landpridgo,  4  Tav.nt.  128 ;  Doe  V,  Davies,  7  Exch. 
89;  Cudlip  r,  Randall,  4  Modern  9;  Harrison  r.  Middleton,  11  Gratt. 
527;  Humphries  V.  Humphries,  3  Ired.  3G2;  Sullivan  v.  Enders,  3 
Dana  56.  Or  a  longer  notice  than  that  required  by  statute  may  be 
agreed  upon.  Roth  Tool  Co.  v.  Champ  Spring  Co.,  93  Mo.  App.  530,  67 
S.  W.  Rep.  967. 

iiHamerton  v.  Stead,  3  Barn.  &  Cress.  478;  Howard  v.  Shaw,  8  M.  & 
W.  118;  Doe  r.  Chamberlain,  5  :M.  &  W.  14;  Gtould  x\  Thompson.  4 
Mete.  224;  White  r.  Livingston,  10  Cush.  589;  Silsby  v.  Allen,  43  Vt. 
177;  Jackson  r.  Miller,  7  Cow.  747;  Jackson  v.  Bradt,  2  Caines  109; 
Freeman  r.  Headley,  33  N.  J.  L.  523;  Jones  v.  Jones,  2  Rich.  542; 
Carson  V.  Baker,  4  Dev.  220;  Danne  v.  Trustees,  39  HI.  583;  Jennings 
V.  McComb,  112  Pa.  St.  518;  Watson  v.  Pugh,  51  Ark.  218;  Walker  Ice 
Co.  V.  American  Steel  Co.  (1904),  185  Mass.  463,  70  X.  E.  Rep.  937. 
But  the  occupation  m\ist  be  with  the  owner's  consent.  Center  Cr.  Min. 
Co.  V.  Frankenstein,  179  Mo.  564,  78  S.  W.  Rep.  785. 

218 


CH.    VIII.]  ESTATES   AT    WILL.  §    166 

has  occupied  the  land,  unless  there  is  an  express  agreement 
to  that  eflfect.*-  But  he  will  render  himself  liable  for  rent, 
if  he  retains  possession  after  the  executory  contract,  under 
which  he  entered,  has  come  to  an  end,  as  well  as  where  he 
surrenders  his  right  cf  purchase  and  continues  to  hold  pos- 
session, with  the  intention  to  become  a  tenant.^^  And  he 
will  also  be  liable  in  an  action  for  damages  for  use  and  oc- 
cupation during  the  pendency  of  the  contract,  if  the  failure 
of  such  contract  is  the  result  of  his  own  refusal  or  inability 
to  fulfill  his  obligations  under  it.^*  The  rent  is  recovered 
in  such  a  case,  not  on  any  implied  contract  to  pay  for  the 
use  and  occupation  in  the  event  that  the  tenant  fails  to  per- 
form his  part  of  the  contract,  but  on  the  theory  that,  his 
possession  being  given  with  a  view  to  the  tenant's  perform- 
ance of  the  contract,  his  failure  to  perform  makes  his  hold- 
ing a  trespass  ab  initio;  or  the  rent  may  be  asked  for  as 
damages  suffered  from  the  tenant's  breach  of  the  contract 
of  sale.'^  In  a  similar  manner  is  the  vendor  liable  as  ten- 
is  Winterbottom  V.  Ingham,  7  Q.  B.  Gil ;  Howard  v.  Sliaw,  8  M.  &  W. 
118;  Dennett  v.  Penobscot  Company,  57  Me.  425;  Cunningham  v.  Holton, 
55  Me.  3.3;  Woodbury  v.  Woodbury,  47  N.  H.  11;  Hough  v.  Birge, 
11  Vt.  190;  Little  17.  Pearson,  7  Pick.  301;  Dakin  v.  Allen,  8  Cush. 
33;  SlyA-ester  v.  Ralston,  31  Barb.  28G;  Doolittle  V.  Eddy,  7  Barb.  74; 
Hasle  V.  McCoy,  7  J.  J.  Marsh,  319;  ]:ell  v.  Ellis,  1  Stew.  &  P.  294; 
McKillsauk  v.  Bnllington,  87  ^liss.  535;  CoflFman  v.  Huck,  24  Mo.  496. 
13  Barton  r.  Smith,  66  Iowa  75. 

1*  Howard  v.  Shaw,  8  M.  &  W.  118;  Tancred  v.  Christy,  12  M.  &  W. 
324;  Gould  V.  Thompson,  4  Mete.  228;  Hall  V.  West.  Transp.  Co.,  34  N, 
Y.  291;  Wright  v.  Roberts,  22  Wis.  161;  Pinero  v.  Judson,  6  Bing.  206. 
isBurdett  v.  Caldwell,  9  Wall.  293;  Chamberlain  v.  Donahue,  44  Vt. 
59;  Kistland  r.  Pounsett,  2  Taunt.  145;  Bancroft  r.  Wardwell,  13 
Johns.  489;  Smith  v.  Stewart,  6  Johns.  46;  Vanderhuevel  r.  Storrs,  3 
Conn.  203;  Bell  v.  Ellis,  1  Stew.  &  P.  204;  Brewer  r.  Conover,  18  N. 
J.  L.  215;  Johnson  v.  Beauchamp,  9  Dana  124.  But  see  Forbes  V. 
Smiley,  56  Me.  174;  Boston  v.  Binney,  11  Pick.  9;  Gould  t*.  Thompson, 
4  Mete.  228;  Hull  v.  Vaughan,  6  Price  157.  See,  also,  Cook  v.  Klenk 
(1904),  142  Cal.  416,  76  Pac.  Rep.  57;  Todhunter  v.  Armstrong  (Ool.), 
53  Pac.  Rep.  446;  Kerraine  v.  People,  60  N.  Y.  224,  19  Amer.  Rep.  158; 
Chatard  v.  O'Donovan,  80  Ind.  20,  41  Amer.  Rep.  782. 

219 


§    167  TENANCIES   FROM    YEAR   TO   YEAR.  [PART   I. 

ant  at  will  for  use  and  occupation,  if  he  retains  possession 
of  the  land,  after  the  contract  of  purchase  has  been  executed 
and  the  deed  of  conveyance  delivered.  If  the  vendor  re- 
tains possession  with  consent  of  the  vendee,  the  action  will 
be  on  an  implied  contract  for  rent,  while  he  would  be  liable 
in  trespass  for  damages,  if  such  holding  was  without  the 
permission  of  the  grantee.^" 

§  167.  Qualities  of  tenancies  from  year  to  year. —  As  a  con- 
sequence of  the  rule  requiring  a  certain  notice  of  the  in- 
tention to  terminate  the  estate,  before  such  termination  can 
take  place,  the  tenant  was  held  to  be  possessed  of  a  fixed 
and  indefeasible  estate  for  a  definite  period,  the  length  of 
which  is  controlled  by  the  character  and  the  terms  of  the 
contract  for  rent  (if  it  be  a  yearly  rental,  this  estate  is  for 
one  year,  and  if  the  rental  be  monthly,  it  is  for  one  month), 
together  with  an  indefinite  obligation  to  continue  the  rela- 
tion of  landlord  and  tenant,  until  it  is  determined  by  the 
proper  notice  from  either  of  the  parties.^^  The  tenant's  es- 
tate survives  the  death  of  the  tenant  and  goes  to  his  personal 
representatives.  It  is  also  capable  of  assignment,^^  and  the 
tenant  may  maintain  his  action  for  trespass  quare  clausum 
f regit  against  all  intruders,  including  the  landlord.^^     Nor 

16  Tew  r.  Jones,  13  M.  &  W.  14;  Carrier  v.  Earl,  13  Me.  216;  Nichols 
V.  Williams,  8  Cow.  13.  But  see  contra,  Preston  v.  Hawley,  101  N.  Y. 
586.     See,  Boughton  V.  Boughton,  77  Conn.  7,  58  Atl.  Rep.  226. 

iTHamerton  v.  Stead,  3  B.  &  C.  478;  Roe  v.  Lees,  2  W.  Bl.  1173; 
Rich  f.  Bolton,  46  Vt.  84,  14  Am.  Rep.  615;  Lockwood  v.  Lockwood,  22 
Conn.  425;  Jackson  v.  Bradt,  2  Caines  169;  The  People  v.  Darling,  47 
N.  Y.  666;  Lesley  V.  Randolph,  4  Rawle  123;  4  Dev.  220;  Williams  V. 
Deriar,  31  Mo.  1;  Secor  v.  Pestana,  35  111.  528. 

18  Doe  V.  Porter,  3  T.  R.  13;  Batting  v.  Martin,  1  Camp.  317;  1 
Washb.  on  Real  Prop.  604;  2  Prest.  Abst.  25.  See  Morton  v.  Woods, 
L.  R.  4  Q.  B.  306 ;  W  itt  V.  Mayor  of  New  York,  6  Robt.  447.  An  agree- 
ment by  one  co-tenant  to  pay  his  co-tenant  for  his  share  of  the  property, 
does  not  make  him  a  mere  tenant  at  will.  Smith  v.  Smith  (1904),  98 
Me  597,  57  Atl.  Rep.  999. 

19  Moore  v.  Boyd,  25  Me.  242;  Cunningham  v.  Helton,  55  Me.  33; 
Dickinson  v.  Godspeed,  8  Cush.   119;   French   v.  Fuller,   23   Pick.   107; 

220 


CH.   VIII.]  TENANCIES  FROM   YEAR   TO   YEAR.  §    168 

is  it  determined  by  the  grant  of  the  reversion  by  the  lessor."" 
In  other  words,  the  estate  of  the  tenant  from  year  to  year 
cannot  be  determined,  nor  can  the  tenant  relieve  himself 
from  liability  for  rent,  except  by  giving  a  notice,  having 
the  requisites  both  as  to  length  and  the  time  of  giving  it,  of 
his  intention  to  determine  the  tenancy. 

§  168.  What  notice  is  required  to  determine  tenancy  from 
year  to  year. —  The  length  of  time  required  to  be  observed  in 
giving  notice  is  regulated  by  statute,  and  generally  varies 
with  the  length  of  the  periods  between  the  payments  of  rent. 
If  it  be  a  yearly  rental,  the  English  rule,  which  is  followed 
in  some  of  the  States,  requires  six  months'  notice;-^  while  in 
some  other  States,  a  shorter  time,  usually  three  months,  is  re- 
quired.^^  If  the  rental  be  for  a  period  less  than  one  year, 
as  by  the  quarter,  the  month,  etc.,  then,  as  a  general  rule, 
the  notice  must  be  for  as  long  a  time  as  the  periods  of  pay- 
ment.^^     If  the  statute  requires  notice,  but  the  length  of  the 

Clark  V.  Smith,  25  Pa.  St.  437;  Cunningham  r.  Horton,  57  Me.  422; 
Fuller  Co.  v.  Manhattan  Const.  Co.    (1904),  88  N.  Y.  S.  1049. 

20  McDonald  v.  Hanlon,  79  Cal.  442. 

21  Doe  V.  Watts,  7  T.  R.  8.3;  Bessell  v.  Landsberg,  7  Q.  B.  638; 
Jackson  V.  Bryan,  1  Johns.  322;  Den  v.  Drake,  14  N.  J.  L.  523;  Den  V. 
Mcintosh,  4  Ired.  291;  Moorehead  i'.  Watkins,  5  B.  Mon.  228;  Trousdale 
r.  Darnell,  6  Yerg.  431;  Hunt  v.  Morton,  18  111.  75.  But  see  Secor  v. 
Pestana,  35  111.  528. 

22  Currier  V.  Perley,  24  N.  Y.  219;  Logan  v.  Herron,  8  Serg.  &  R. 
459;  Floyd  V.  Floyd,  4  Rich.  23.  In  West  Virginia,  a  tenant  from  year 
to  year  must  give  notice  to  end  the  term  and  cannot  avoid  payment  of 
rent  by  abandoning  the  possession.  Arbenz  v.  Exley  &  Co.,  52  W.  Va. 
470,  44  S.  E.  Hep.  149.  01  L.  R.  A.  957.  See,  also,  Baltimore  Dental 
Ass'n  f.  Fuller.  101  Va.  627,  44  S.  E.  Rep.  771. 

23  1  Washburn  on  Real  Prop.  010;  Taylor's  Land  &  T.  .'iO;  Doe  v.  Ha- 
zell,  1  Esp.  94;  Sanford  v.  Harney,  11  Cush.  93;  Cunningham  v.  Horton, 
57  Me.  422;  Lloyd  v.  Cozens,  2  Ashm.  131;  Godard  v.  S.  C.  R.  R..  2 
Rich.  346;  Secor  v.  Pestana,  35  111.  528;  Grunewald  v.  Schaales,  17  Mo. 
App.  324.  In  tenancies  from  month  to  month  a  notice  to  quit  is  usually 
required  to  be  given  during  the  current  month,  or  at  the  first  of  the 
next  month,  in  order  for  it  to  date  from  the  first  day  of  the  succceeding 
month.     Teator  v.  King  (1904),  35  Wash.  138,  70  Pac.  Rep.  OST;  Drin- 

221 


§  168  TENANCIES  PROM  YEAR  TO  YEAR.       [PART  I. 

notice  is  not  stipulated,  it  is  held  that  a  reasonable  notice 
must  be  given.^*  And  the  parties  may  always  by  special 
agreement  control  the  length  and  other  provisions  of  the  no- 
tice, the  special  agreemx3nt  providing  a  substitute  for  the  re- 
quired notice.-"  The  notice  nnist  not  only  be  given  for  a  cer- 
tain length  of  time  before  the  estate  is  to  terminate,  but  the  es- 
tate can  only  be  determined  at  the  expiration  of  the  time 
during  which  the  tenant  may  lawfully  hold,  i.  e.,  at  the  end 
of  each  rental  period;  it  can  only  be  determined  at  the  end 
of  the  year,  quarter,  or  month,  according  as  the  tenancy  is 
respectively  a  yearly,  quarterly,  or  monthly  rental.-'^  This 
notice  must  be  sufificiently  clear  in  its  terms  as  to  the  time 
when  the  tenancy  is  to  expire;-^  and  must,  as  a  general  rule, 
be  served  upon  the  tenant  personally,  although  it  may  be 
left  at  the  tenant's  dwelling-house,  with  a  servant  or  other 
person  of  discretionary  age,  who  appears  to  be  in  charge  of 

kard  v.  Hempinstall  (W.  Va.  1904).  47  S.  E.  Rep.  72;  Wilson  v.  Wood 
(Miss.  1904),  36  So.  Rep.  609;  McDevitt  v.  Lambert,  80  Ala.  537,  2  So. 
Rep.  438;  Steffens  v.  Earl,  40  N.  J.  Law  128,  29  Amer.  Rep.  214;  Hollis 
V.  Burns,  100  Pa.  St.  206,  45  Amer.  Rep.  379.  All  oral  leasings  of  city 
property,  in  Missouri,  are  tenancies  from  month  to  month.  Squire  v. 
Ferd  Heim  Co.,  90  Mo.  App.  462. 

24Ludington  v.  Garloch,  9  N.  Y.  24;  Payton  v.  Sherburne,  15  R.  I. 
213.  A  ten  days'  notice  is  held  unreasonable  and  insufficient  to  ter- 
minate a  tenancy  by  the  year,  in  Arkansas.  Bromley  v.  Bromley.  70 
Ark.  351,  68  S.  W.  Rep.  32. 

25Woolsey  v.  Donnelly,  5  N.  Y.  S.  238.  Rotli  Tool  Co.  v.  Champ 
Spring  Co.,  93  Mo.  App.  530,  67  S.  W.  Rep.  967. 

26  Doe  V.  Morphett,  7  Q.  B.  577;  Cunningham  v.  Holton,  55  Me.  33; 
Currier  v.  Barker,  2  Gray  224;  Sanford  V.  Harvey,  11  Cush.  93;  Oakes 
V.  Monroe,  8  Cush.  285;  Godard  v.  S.  C.  R.  R.,  2  Rich.  346;  Lloyd  V. 
Cozens,  2  Ashm.  131;  Waters  v.  Young,  11  R.  I.  1,  23  Am.  Rep.  400; 
Steffens  t?.  Earl,  40  N.  J.  L.  128,  29  Am.  Rep.  214;  Wilson  f.  Rotleman, 
30  S.  C.  210;  Adams  v.  City  of  Cohoes,  53  Hun  260;  Teator  v.  King 
(1904),  35  Wash.  1:38,  76  Pac.  Rep.  688;  Drinkard  v.  Hempinstall  (W. 
Va.  1904),  47  S.  E.  Rep.  72. 

27  Mills  V.  GofT,  14  M.  &  W.  72;  Hanchet  v.  Whitney,  1  Vt.  311; 
Currier  V.  Barker,  2  Gray  224;  Granger  v.  Brown,  11  Cush.  191;  Doe 
V.  Morphett,  7  Q.  B.  577;  Doe  V.  Smith,  5  A.  «&>  E.  350;  Doe  v.  Wilkin- 
son, 12  A.  &  E.  743. 

222 


CH.    VIII.]  TENANCIES   FROM   YEAR   TO   YEAR.  §    169 

the  premises.-®  There  may,  of  course,  always  be  a  surrender 
of  the  tenancy,  with  the  consent  of  both  parties,  at  any  time 
during  the  tenancy,  and  without  any  previous  notice.^*  And 
so,  likewise,  the  notice  is  not  required  where  the  lease  by 
its  terms  terminates  upon  the  breach  of  a  condition.^" 

§  169.  How  notice  may  be  waived. —  Such  notice,  when  it 
fulfills  all  the  requirements  of  the  law,  puts  an  end  to  the 
tenancy,  unless  the  landlord  accepts  rent  accruing  after  the 
expiration  of  the  notice.  Such  acceptance  of  rent  will  gen- 
erally constitute  a  waiver  of  the  notice,  and  the  tenancy  be- 
comes re-established.^^  But  in  all  such  cases  it  is  a  matter 
depending  upon  the  intention  of  the  parties,  and  the  re- 
ceipt of  such  rent  is  open  to  explanation,  and  the  evidence 
is  admissible  to  show  that  the  landlord  had  no  intention  of 
waiving  the  notice,  provided  the  tenant  also  had  knowledge 
of  that  fact.^^  An  express  agreement  to  waive  the  notice 
and  to  permit  the  tenant  to  remain  in  possession  is  in  effect 
a  revival  of  the  original  tenancy  with  all  its  terms,  con- 
ditions and  limitations,  which  is  equally  binding  upon  both 
parties.^* 

28l>oe  V.  Dunbar,  1  Mood  &  M.  10;  Jones  v.  Marsh,  464;  Hatstat  v. 
Packard,  7  Cush.  245;  Walker  v.  Sharpe,  103  Mass.  154;  Birdsall  t\ 
Philips,  17  Wend.  464;  Bell  v.  Bruhn,  30  111.  App.  300.  If  left  upon 
the  premises,  without  being  placed  in  the  hands  of  some  responsible 
person,  it  will  only  be  a  good  notice  to  quit,  if  it  actually  reaches  the 
tenant. 

2»Galla{jher  r.  Reilly,  10  N.  Y.  S.  536;  Ludington  v.  Garlook,  9  N.  Y. 
S.  24.  As  to  acts  amounting  to  a  surrender,  see,  Dennis  r.  Miller 
(N.  J.  1002),  53  Atl.  Rep.  394;  Drew  v.  Billings  Co.  (Mich.  1902), 
92  N.  W.  Rep.  774. 

s"  Scott  r.  Willis,  122  Ind.  1;  Witte  r.  Quenn,  38  Mo.  App.  681; 
Shontz  V.  Reynolds,  70  Mo.   App.  669. 

51  Doe  r.  Palmer,  10  East  5.S ;  Tuttle  v.  Bean.  13  Mete.  275;  Farson  r 
Ooodale,  8  Allen  202;  Norris  r.  Morrill.  43  N.  H.  218;  Prindle  V.  Ander- 
son. 19  Wend.  391;   Kimball  r.  Rowland,  6  Gray  224. 

32  Doe  r.  Humphries.  2  East  237;  Goodright  V.  Cordwent,  6  T.  R. 
219;  Kimball  r.  Rowland,  6  Gray  224;  Prindle  r.  Anderson,  19  Wend. 
391. 

83  Supple  f.  Timothy,  124  Pa.  St.  375.     A  tenant  for  a  year  who  holds 

223 


I  169         TENANCIES  FROM  YEAR  TO  YE.VR.       [PART  I. 

■over  is  a  tenant  from  year  to  year.  Baltimore  Dental  Ass'n  r.  Fuller, 
101  Va.  627,  44  S.  E.  Rep.  771.  But  see,  Wood  r.  Page,  24  R.  I.  594, 
54  Atl.  Rep.  372,  where  a  tenant  by  the  year  who  holds  over  is  held 
to  be  a  tenant  at  will.  In  Illinois,  where  a  tenant  from  year  to  year 
holds  over,  it  is  optional  with  the  landlord  to  regard  him  as  a  tenant 
from  year  to  year,  or  not.  Chicago  r.  Peck,  98  111.  App.  434,  63  N; 
E.  Rep.  711.  See,  also,  Ridgeway  v.  Hannuni  (Ind.  1902),  64  N.  E. 
Rep.  44.  Under  a  tenancy  by  the  month,  there  is,  in  legal  contem- 
plation, a  monthly  letting,  although  the  tenancy  continues  many 
months.  Donk  Bros.  Coal  Co.  v.  Leavitt,  109  111.  App.  385.  A  hold- 
ing over,  under  a  monthly  tenancy,  continues  such  tenancy  in  force,  in 
New  Jersey.  Baker  v.  Kenney  (1903),  54  Atl.  Rep.  526, 
224 


SECTION  III. 

TENANCY  AT  SUFFERANCE. 

Section  170.  Tenancy  at  sufferance,  what  is. 

171.  Incidents  of  tenancy  at  suflTerance. 

172.  How  the  tenancy  is  determined. 

173.  The  effect  of  forcible  entry. 

§  170.  Tenancy  at  Sufferance,  what  is. —  When  one  who  has 
come  lawfully  into  the  possession  of  lands  under  an  agree- 
ment with  the  owner,  retains  such  possession,  after  his  right 
to  it  is  determined,  he  is  said  to  be  a  tenant  at  sufferance. 
His  estate  is  an  unlawful  one;  he  has,  in  fact,  no  right  to 
possession,  but  yet  is  not  a  trespasser.^*  And  yet  he  has 
so  far  a  vested  interest  in  the  land  that  any  crop  which  he 
might  plant  and  harvest  during  the  continuance  of  the  ten- 
ancy is  his,  free  from  the  claims  of  the  reversioner,  and  liable 
to  execution  for  the  debts  of  the  former.'"  Such  are  all 
persons  who  continue  in  possession,  after  the  determination 
of  their  particular  estate,  by  and  under  which  they  orig- 
inally acquired  possession.  Tenants  for  years  after  the 
expiration  of  their  terms,  tenants  pur  autre  vie  after  the 
death  of  the  cestui  que  vie,  sublessees  after  the  determination 
of  the  original  lease  and  the  like,  are  all  tenants  at  suffer- 
ance.'"   But  in  the-  case  of  a  tenancy  from  year  to  year,  the 

8<2  Bla.  C!om.  150;  1  Washburn  on  Real  Prop.  616;  Co.  Lit.  57  b; 
Williams  on  Real  Prop.  389;  Doe  v.  Hull,  2  D.  &  R.  38;  Russell  v.  Fa- 
byan,  34  N.  H.  218;  Uridias  v.  Morrell,  25  Cal.  35, 

SBW'alcott  V.  Hamilton   (Vt.),  17  Atl.  Rep.  39. 

86  Co.  Lit.  57  b;  2  Bla.  Com.  150;  Simkin  v.  Ashhurst,  1  Crompt.  M. 
&  R.  261;  Benedict  v.  Morse,  10  Mete.  223;  Creech  v.  Crockett,  5  Cush. 
133;  Jackson  v.  Parkhurst,  5  Johns.  128;  Hyatt  v.  Wood,  4  Johns.  150; 
Livingston  v.  Tanner,  12  Barb.  481;  Smith  v.  Littlefleld,  51  N.  Y.  643; 

15  225 


§    170  TENANCY    AT   SUFFERANCE.  [pART    I. 

tenancy  at  sufferance  only  begins  at  the  expiration  of  the 
current  rental  period  and  after  giving  the  required  legal 
notice.'^  In  order  that  a  tenancy  at  sufferance  may  arise, 
the  estate,  under  which  possession  was  originally  gained, 
must  have  been  created  by  the  agreement  of  the  parties.  If 
one  enters  into  the  possession  by  the  act  or  authority  of  the 
law,  as,  for  example,  a  guardian,  and  retains  possession  after 
the  law  ceases  to  authorize  it,  he  is  a  trespasser  and  not  a 
tenant  at  sufferance,^*  And  a  tenancy  at  sufferance  would 
only  exist,  where  the  holding  over  is  not  in  pursuance  of  an 
agreement  between  the  parties.  Such  an  agreement  would 
change  the  relation  from  a  tenancy  at  sufferance  to  one  at 
will  or  from  year  to  year.^®  And  if  the  parties  have  not 
expressly  agreed  upon  any  other  terms,  the  presumption  is 
that  the  holding  over  is  to  be  on  the  terms  of  the  original 
lease.^"  A  notice  by  the  landlord,  before  the  termination  of 
the  lease,  that  an  advance  in  rent  would  be  asked,  if  the 
tenant  held  possession  after  his  term  is  at  an  end,  will  have 
the  same  effect  as  an  express  agreement  in  changing  iin' 
liability  of  the  tenant.*^    And  although  an  agreement  in  the 

Ferine  v.  Teague,  66  Cal.  446.  A  tenant  by  the  year,  who  holds  over, 
after  his  landlord's  death,  in  Rhode  Island,  is  a  mere  tenant  by  suffer- 
ance. Wood  V.  Page,  24  R.  I.  594,  54  Atl.  Rep.  372.  Under  Wyoming 
statute,  one  found  in  the  possession  of  real  estate,  with  no  oth'er  show- 
ing of  right,  is  held  to  be  a  tenant  by  sufferance.  Frank  v.  Stratford- 
Hancock  (1904),  77  Pac.  Rep.  134.  A  tenancy  by  sufferance,  in  Georgia, 
is  held  to  arise,  by  a  holding  over  on  the  part  of  a  tenant,  who  refused 
to  execute  a  new  lease  within  the  time  given  him  to  do  so.  Sails  V, 
Davis  (1904),  120  Ga.  95,  47  S.  E.  Rep.  644.  See,  also,  Cook  v.  Klenk, 
142  Cal.  416,  76  Pac.  Rep.  57;  Chatard  v.  O'Donovan,  80  Ind.  20,  41 
Amer.  Rep.  786;  Kerrains  v.  People,  60  N.  Y.  224. 

37  Thomas  v.  Black    (Del.),   18  Atl.  Rep.  771. 

38  Co.  Lit.  57  b;  1  Washburn  on  Real  Prop.  618;  Merrill  v.  Bullock, 
105  Mass.  491. 

39  1  Washburn  on  Real   Prop.   618,  619. 

40  Miller  v.  Ridgely,  19  111.  App.  306;  Vogely  r.  Robinson,  20  Mo.  App. 
199;  McBrier  V.  Marshall,  126  Pa.  St.  390;  Dental  Ass'n  v.  Fuller,  101 
Va.  627,  44  S.  E.  Rep.  771;  Baker  v.  Kenny  (N.  J.  1903),  544  Atl.  B^p 
526. 

41  Thorpe  v.  Philbin,  22  State  Rep.  27,  3  N.  Y.  S.  939. 

226 


CH.    VIII.]  TENANCY   AT   SUFFERANCE.  §    171 

original  lease,  to  pay  rent  for  the  time  that  the  tenant  con- 
tinues in  possession  after  the  expiration  of  his  term,  or  after 
the  demand  for  payment  of  rent,  will  not  take  away  from 
such  holding  over  the  character  of  a  tenancy  at  sufferance,*^ 
yet  the  actual  payment  and  receipt  of  rent,  in  pursuance  of 
such  an  agreement  or  without  any  previous  agreement,  will 
make  the  holding  a  tenancy  at  will,  or  one  from  year  to 
year,  according  to  the  attending  circumstances.*^ 

§  171.  Incidents  of  tenancy  at  snfferance. —  Unlike  all  other 
tenancies,  it  does  not  rest  upon  privity  of  contract.  It  is 
created  by  implication  of  law,  for  the  purpose,  perhaps 
the  sole  purpose,  of  establishing  between  the  owner  and  the 
person  holding  over,  the  tenure,  usually  existing  between 
landlord  and  tenant.  As  a  consequence  of  this  tenure,  a 
tenant  at  sufferance  cannot,  in  an  action  by  the  reversioner 
for  the  recovery  of  the  possession,  deny  the  title  of  his  les- 
sor, or  set  up  in  defense  a  superior  title  which  he  has  ac- 
quired by  purchase.**  Nor  can  the  tenant  give  to  his  hold- 
ing the  character  of  adverse  possession,  so  as  to  bar  the  les- 
sor's claim  under  the  Statute  of  Limitations.*"  It  has  been 
stated  that  the  statute  may  run  against  the  landlord  in  an 
estate  for  years,  where  the  tenant  gives  actual  notice  by  word 
or  deed  that  he  is  claiming  adverse  possession,  and  that  the 

<2  Condon  v.  Barr,  47  N.  J.  L.  113;  Adler  v.  Mendelson,  74  Wis.  464. 

<3  Russell  V.  Fabyan,  34  N.  H.  223;  Edwards  v.  Hale,  9  Allen  462; 
Emmons  V.  Scudder,  115  Mass.  367;  Schuyler  v.  Smith,  51  N.  Y.  309; 
Finney  v.  St.  Louis,  39  Mo.  177;  Bircher  v.  Parker,  40  Mo.  148;  Hoff- 
njan  v.  Clark,  63  Mich.  175.  See  O'Brien  v.  Troxell,  76  Iowa  760. 
In  Illinois,  it  is  optional  with  the  landlord  to  regard  a  tenant  from 
year  to  year  holding  over,  as  a  tenant  by  the  year  or  at  will.  Chicago 
r.  Peck,  98  111.  App.  434,  63  N.  E.  Rep.  711. 

«*  Jackson  v.  McLeod,  12  Johns.  182;  Griffin  v.  Sheffield,  38  Miss. 
9.30;  1  Washburn  on  Real  Prop.  618,  619;  Dixon  v.  Finnegan,  182  Mo. 
Ill,  81  S.  W.  Rep.  449;  Miller  v.  Warren  (1904),  87  N.  Y.  S,  1011,  94 
App.  Div.   192. 

«  1  Washburn  on  Real  P-op.  620;  Doe  v.  Hull,  2  D.  &  R.  38  Sec. 
Ildwards  r.  Hale,  9  Allen  464;  Gwynn  v.  Johns.  2  Gill  &  J.  173. 

227 


§    172  TENANCY    AT   SUFFERANCE.  [PAKT   I. 

statute  will  run  from  the  time  that  such  notice  is  given. 
Such,  presumably,  is  the  law  also  in  respect  to  tenancies  at 
sufferance.  The  tenure  existing  between  the  lessor  and  his  • 
tenant  at  sufferance,  is  identical,  in  character  and  scope, 
with  that  between  landlord  and  tenant  for  years.  For  the 
details  of  the  doctrine,  reference  may  be  had  to  the  chapter 
on  estates  for  years.*"  The  tenant  at  sufferance  has,  how- 
ever, no  estate  which  he  may  assign,  and  if  he  attempts  an 
assignment,  his  assignee  upon  entry  into  possession  becomes 
a  trespasser  or  disseisor,  and  has  neither  the  rights  nor  the 
obligation  of  a  tenant  at  sufferance,*^  unless  by  the  accept- 
ance of  rent  and  other  recognitions  of  a  tenancy,  the  relation 
of  landlord  and  tenant  is  impliedly  established  between  the 
assignee  and  the  lessor,  when  the  assignee  will  become  a 
tenant  at  will  or  a  tenant  from  year  to  year,  according  to 
the  attending  circumstances.** 

§  172.  How  the  tenancy  is  determined. —  The  tenancy  is  de- 
termined by  the  entry  of  the  lessor  upon  the  land,  and 
then  the  quondam  tenant  is  a  trespasser,  and  may  be  treated 
as  such.*'     And   although  the   tenant   at   sufferance   is   not 

«  See  ante,  Sec.  158. 

4  7Nepeau  v.  Doe,  2  M.  &  W.  911;  Thunder  v.  Belcher,  3  East  451; 
Reckhow  r.  Schanck,  43  N.  Y.  448;  Layman  v.  Throp,  11  Ired.  352;  1 
Washb.  on  Real  Prop.  261. 

*8  De  Pere  Co.  v.  Reynen,  65  Wis.  271.  See,  Chicago  v.  Peck,  98  111. 
App.  434,  63  N.  E.  Rep.  711;  Ridgeway  v.  Hammon  (Ind.  1902),  64 
N.   E.  Rep.   44. 

49  Until  entry  is  made,  the  land-owner  cannot  treat  the  tenant  at 
sufferance  as  a  trespasser.  2  Bla.  Com.  150;  Co.  Lit.  57  b;  Carl  V. 
Lowell,  19  Pick.  27;  Butcher  V.  Butcher,  7  B.  &  C.  399;  Newton  v. 
Harland,  1  Mann.  &  G.  644;  Rising  v.  Stanard,  17  Mass.  282.  The 
successful  issue  of  an  action  of  ejectment  is  equivalent  to  an  entry.  No 
notice  to  the  tenant  at  sufferance  is  required  to  terminate  his  estate, 
or  to  bring  an  ejectment,  unless  a  statute  expressly  requires  it.  Hollis 
V.  Pool,  3  Mete.  350;  Mason  V.  Denison,  11  Wend.  612;  Smith  v.  Little- 
field,  51  N.  Y.  643;  Young  v.  Smith,  28  Mo.  65;  Bennett  v.  Robinson, 
27  Mich.  32. 

228 


CH.   VIII.]  TENANCY   AT   SUFFERANCE,  §    173 

liable  for  rent  (except  by  statute'*"),  yet  he  is  liable  to  the 
lessor  in  an  action  for  the  mesne  profits."^  But  he  is  liable 
for  neither  rent  nor  mesne  profits,  if  he  holds  over  only  for 
the  time  which  is  reasonably  necessary  to  remove  his  goods.^^ 

§  173.  The  effect  of  forcible  entry. —  A  statute  was  passed 
in  the  reign  of  Richard  11,'*^  forbidding  entries  upon  land  in 
support  of  one's  title  "with  strong  hand  or  a  multitude  of 
people,  but  only  in  a  peaceable  and  easy  manner,"  and  pro- 
viding for  the  punishment  of  such  offenses  by  indictment 
and  arraignment  in  the  criminal  courts/*  Similar  statutes 
have  been  passed  in  most,  if  not  all,  of  the  States  of  this 
country.  The  question  has  been  mooted  from  an  early 
period,  whether  it  was  the  purpose  of  the  statute  to  take 
away  the  common-law  right  to  recover  one's  lawful  posses- 
sion by  force  of  arms,  or  simply  to  provide  a  punishment  for 
the  breach  of  the  public  peace  thereby  occasioned.  Although 
there  are  decisions  and  some  authorities,  which  maintain  that 
the  statute  has  this  double  effect,  and  that  such  forcible 
entry  would  lay  the  lawful  owner  open  to  civil  actions  for 
trespass,   and  for  assault  and  battery,"*'  yet  the  weight  of 

80  Cofran  v.  Shephard,  148  Mass.  582. 

51  Sarpent  v.  Smith,  12  Gray,  420;  Merrill  v.  Bullock,  105  Mass.  490; 
Cunningham  v.  Holton,  55  Me.  33;  Stockton's  Appeal,  64  Pa.  St.  63; 
Hogsett  V.  Ellis,  17  Mich,  368;  1  Washburn  on  Real  Prop.  61fl.  020; 
Hammond  V.  Eckhardt,  9  N.  Y.  S.  508 ;  Shanahan  V.  Shanahan,  55  N.  Y_ 
Super.  Ct.  339;  Johannes  r.  Kielgast,  27  111.  App.  576;  Lathrop  v^ 
Standard  Oil  Co.   (Ga.),  9  S.  E.  Rep.  1041. 

52  Adler  v.  Mendelson,  74  Wis.  464.  The  common-law  rule  that  a 
tenant  by  sufferance  is  not  liable  for  rents  and  profits,  has  been  abro- 
gated by  statute,  in  Kansas.  Martin  v.  Allen  (1903),  67  Kan.  758,  74 
Pac.  Rep.  249.  In  Missouri  a  tenant  at  sufferance  can  be  evicted 
without  notice.  Wamsganz  v.  Wollf,  80  Mo.  App,  205,  No  notice  is 
necessarj'  to  end  a  tenancy  at  sufferance  in  Georgia.  Willis  v.  Harrell, 
118  Ga.  906,  45  S.  E.  Rep.  794. 

53  15  Rich.  II,  c.  2;  Sutton's  Case,  6  Mod.  91,  2  Ld,  Raym.  lOO-x 
9  Enc.  PI.  &  Pr.  29. 

'<*  9  En??.  Stat.  L.  is  beginning  of  civil  remedy. 

BsReeder  v.  Pardy,  41  111.  261;  Doty  v.  Burdick,  83  111.  473;  Knight  r.. 

229 


§    173  TENANCY   AT   SUFFERANCE.  [PART    1. 

authority  both  in  the  courts  of  England  and  of  this  country 
is  certainly  in  favor  of  confining  the  operation  of  the  statute 
to  a  criminal  prosecution  for  the  prohibited  entry.  The  de- 
cisions cited  below  maintain  that  the  plea  of  lihernum 
tenementum  is  a  good  plea  to  every  action  of  trespass  quarc 
clausum  fregit,  and  even  if  the  tenant  is  forcibly  expelled 
and  suffers  personal  injuries  therefrom,  no  civil  action  for 
any  purpose  will  lie,  unless  the  force  used  was  greater  than 
was  necessary  to  effect  his  expulsion."' 

Knight,  90  111.  208;  Dustin  v.  Cowdry,  23  Vt.  631;  Whittaker  v.  Perry, 
38  Vt.  107  (but  see  contra,  Beecher  v.  Parmelee,  9  Vt.  352;  Mussey  r. 
Scott,  32  Vt.  82).     See  Moore  v.  Boyd,  24  Me.  247. 

50  Harvey  v.  Brydges,  13  M.  &  W.  437;  Davis  v.  Burrell,  10  C.  B.  821; 
Hilbourne  v.  Fogg,  99  Mass.  11;  Churchill  v.  Hulbert,  110  Mass.  42;  15 
Am.  Rep.  578;  Clark  v.  Kelliher,  107  Mass.  406;  Steams  r.  Sampson, 
59  Me.  568;  Sterling  v.  Warden,  51  N.  H.  239;  12  Am.  Rep.  80;  The 
People  V.  Field,  52  Barb,  198;  s.  c.  v.  Lans.  242;  Estes  v.  Kedsey,  8 
Wend.  560;  Todd  v.  Jackson,  26  N.  J.  L.  525;  Krevet  V.  Meyer,  24  Mo. 
107;  Fuhr  V.  Dean,  26  Mo.  116.  The  exercise  of  sufficient  force  after 
a  peaceable  entry  to  eject  a  tenant,  is  lawful,  and  cannot  sustain  an 
action  for  assault  and  battery.  Stearns  v.  Sampson,  59  Me.  568,  8  Am. 
Rep.  442.  For  discussion  and  jurisdiction  of  forcible  entries,  as  to 
mines  and  mining  property,  see  White,  Mines  &  Min.  Rem.,  Sec.  538, 
et  seq. 

230 


CHAPTER  IX. 

JOINT   ESTATES, 

Section  I.  —  Classes  of  joint  estates. 

II.  —  Incidents  common  to  all  joint  estates. 
III.  —  Partition. 

SECTION  I. 

CLASSES   OF  JOINT   ESTATES. 

I.  —  Joint-tenancy. 

II.  —  Tenancy  in  common. 
III.  —  Estates  in  coparcenary. 
rV,  —  Estates  in  entirety. 

V.  —  Estates  in  partnership. 

Sbction  174.  Joint  and  several  estates  distinguished. 

175.  Joint-tenancy,  what  is. 

176.  Incidents  of  joint-tenancy. 

177.  Doctrine  of  survivorship, —  how  right  of  survivorship  is 

destroyed. 

178.  Tenancy  in  common,  what  is. 

179.  Joint  estates,  when  tenancies  in  common. 

180.  Tenancy  in  coparcenary. 

181.  Estates  in  entirety. 

182.  Estates    in    entirety    in    a   joint-tenancy,    or   tenancy    in 

common. 

183.  Tenancy  in  common  between  husband  and  wife. 

184.  Estates  in  partnership. 

185.  Several  interests  of  partners. 

§  174.  Joint  and  several  estates  disting^uished. —  After  dis- 
cussing the  various  estates  which  might  be  created  in  lands, 
in  respect  to  their  duration,  it  is  necessary  to  inquire  into 
their  qualities,  in  respect  to  the  number  of  owners.     From 

231 


§   176  JOINT-TENANCY.  [PART  I. 

this  standpoint,  estates  are  divided  into  two  classes, — estates 
in  severalty  and  joint  estates.  An  estate  in  severalty  is,  as 
the  name  implies,  one  which  is  held  and  enjoyed  by  one  to 
the  exclusion  of  all  the  world.^  Joint  estates  are  all  other  es- 
tates, the  title  to  which  is  vested  in  two  or  more  persons. 
These  are  again  subdivided  into  joint  tenancies,  tenancies 
in  common,  estates  in  coparcenary,  tenancies  by  the  entirety 
and  partnership  estates. 

§  175.  Joint-tenancy,  what  is. —  A  joint-tenancy  is  an  estate 
held  by  two  or  more  persons  jointly,  so  that  during  the 
lives  of  all  they  are  equally  entitled  to  the  enjoyment  of 
the  land,  or  its  equivalent  in  rents  and  profits;  but,  upon 
the  death  of  one,  his  share  vests  in  the  survivor  or  survivors, 
until  there  be  but  one  survivor,  when  the  estate  becomes  one 
in  severalty  in  him,  and  descends  to  his  heirs  upon  his 
death.-  There  may  be  a  joint-tenancy  in  any  one  of  the  es- 
tates before  explained,  in  fee,  for  life,  or  for  years  and  the 
like.'  But  for  a  reason  which  will  be  made  clear  by  a  sub- 
sequent paragraph,*  a  joint  tenancy  can  only  be  created  by 
purchase.     It  cannot  be  acquired  by  descent.' 

§  176.  Incidents  of  a  joint-tenancy. —  It  is  said  that  for  the 
creation  of  a  joint-tenancy,  the  four  unities  of  estate  must 
be  present,  viz. :  unity  of  interest,  title,  time,  and  posses- 
sion.^ All  the  tenants  must  have  the  same  interest  in  the 
land  in  respect  to  the  duration  of  the  estate.     One  cannot  be 

1  1  Washburn  on  Real  Prop,  642 ;  2  Bla.  Com.  179. 

2  1  Washburn  on  Real  Prop.  642;  1  Prest.  Est.  130;  2  Bla.  Com.  179, 
183. 

8  1  Washburn  on  Real  Prop.  642,  643;  2  Bla.  Com.  179;  Glover  v. 
Stillson    (Conn.),  15  Alt.  Rep.  752. 

*  See  Sec.  180. 

6  1  Washburn  On  Real  Prop,  643 ;  2  Bla.  Com.  180. 

e  1  Washburn  on  Real  Prop.  643 ;  2  Bla.  Com.  180.  A  deed  from 
cotenants  to  one  of  their  number  and  a  third  party,  vests  an  estate  in 
joint  tenancy,  so  that  the  survivor  takes  the  estate.  Colson  v.  Baker 
(1904),  87  N.  Y.  S.  238. 

232 


CH.    IX.]  JOINT   TENANCY.  ,     §    176 

tenant  for  life,  while  another  is  tenant  in  fee.  By  unity 
of  title  is  meant,  that  all  must  acquire  their  interests  by  the 
same  title.  One  eannot  hold  by  one  deed,  and  another  by  a 
second  deed.  The  estate  must  vest  at  the  same  time,  other- 
wise there  will  be  no  unity  of  time.  Two  persons  cannot  be 
joint-tenants,  where  the  estate  is  granted  in  remainder  to 
the  heirs  of  two  living  persons.  The  death  of  one,  during 
the  life  of  the  other,  would  cause  the  shares  of  his  heirs  to 
vest  before  the  others.  Finally,  the  estate  must  take  effect 
in  possession  at  the  same  time.  One  cannot  have  an  estate 
in  possession,  while  the  other  has  an  estate  in  remainder. 
Joint-tenants,  therefore,  "have  one  and  the  same  interest, 
accruing  by  one  and  the  same  conveyance,  commencing  at 
one  and  the  same  time,  and  held  by  one  and  the  same  pos- 
session. ' '  ^  And  whenever  these  four  unities  were  present 
in  a  joint  estate,  the  estate  was  construed  at  common  law  to 
be  a  joint-tenancy,  unless  the  grantor  by  express  limitation 
gave  the  estate  a  different  character.*  But  the  American 
law  has  been  in  opposition  to  joint-tenancy,  and  has  shown 
more  favor  to  tenancies  in  common.  The  doctrine  of  sur- 
vivorship has  been  considered  repugnant  to  the  American 
sense  of  justice  to  the  heirs.  A  number  of  the  States  have 
by  statute  abolished  joint-tenancy  altogether,  except  in  the 
case   of  trustees  and  other  persons,   holding   a  joint-estate 

7  Bla.  Com.  180,  181,  182. 

8  1  Washburn  on  Real  Prop.  643;  Williams  on  Real  Prop.  132;  Rig- 
den  V.  Vallier,  3  Atk.  734.  But  sometimes  the  intention  to  create  a 
tenancy  in  common  is  established  by  implication,  as,  for  example,  where 
the  land  was  purchased  with  the  intention  of  expending  large  sums  in 
the  improvement  of  the  property,  and  there  is  no  relationship  between 
the  co-tenants  to  support  the  contrary  presumption,  that  the  estate  was 
intended  to  be  a  joint-tenancy.  See  Lake  v.  Craddock,  3  P.  Wms.  158; 
Cuyler  v.  Bradt,  2  Caines  326;  Caines  v.  Grant's  Lessee,  5  Binn.  196; 
Duncan  t".  Forrer,  6  Binn.  196.  Joint  estates  were  never  regarded  with 
favor  in  equity  and  where  the  instrument  creating  the  estate  could  be 
construed  as  creating  other  than  a  joint  estate,  equity  so  construed  it. 
4  Kent's  Com.  361;  Rigden  v.  Vallier,  2  Ves.  258;  Randall  v.  Phillipps, 
3  Mason  378;  Hawes  v.  Hawes,  1  Wils.  165,  by  Lord  Hardwicke. 

233 


§    176     •  JOINT-TENANCY.  [PART   I. 

in  a  fiduciary  capacity."  while  it  may  be  stated  as  a  general 
rule  in  the  rest  of  the  States,  tliat  a  joint-estate  will  be  pre- 
sumed in  every  case,  except  that  of  trustees,  etc.,  to  be  a 
tenancy  in  common,  unless  expressly  declared  to  be  a  joint- 
tenancy,  even  though  the  four  unities  are  present.^"  Joint- 
mortgagees  hold  by  joint-tenancy,  until  the  property  is  sold 
under  foreclosure,  when  they  become  tenants  in  common," 
in  the  land,  if  strict  foreclosure  is  had,  and  in  the  proceeds  of 
sale,  if  it  is  an  equitable  foreclosure. 

8  Statutes  of  this  character  exist  in  Virginia,  North  Carolina,  South 
Carolina,  Pennsylvania,  Georgia,  Florida,  Kentucky,  Tennessee,  Alabama, 
Mississippi,  Texas,  Ohio,  and  Connecticut.  1  Washburn  on  Real  Prop. 
644.  note.  See  also  Phelps  v.  Jepson,  1  Root  48 ;  Ball  v.  Deas,  1 
Strobh.  Eq.  24;  Nichols  V.  Denny,  37  Miss.  59;  Jenk's  lessee  v.  Back- 
house, 1  Binn.  91;  Baird's  Appeal,  3  Watts  &  S.  4.59;  Miles  r.  Fisher, 
10  Ohio  1;  Varn  V.  Varn   (S.  C),  10  S.  E.  Rep.  829. 

10  This  statutory  rule  prevails  in  Maine,  Massachusetts,  New  Hamp- 
shire, Vermont,  Rhode  Island,  New  York,  Delaware,  Maryland,  Mich- 
igan, Minnesota,  Illinois,  Wisconsin,  Missouri,  Indiana,  Arkansas,  Iowa, 
California.  1  Washburn  on  Real  Prop.  644,  note.  See  also  \^'ebster  v. 
Vandeventer,  6  Gray  428 ;  Jones  v.  Crane,  10  Gray  308 ;  Stimpson  v. 
Butterman,  5  Cush.  153;  Hoffman  v.  Stigers,  28  Iowa  302;  Orr  v.  Clark 
(Vt. ),  19  Atl.  Rep.  929.  In  Missouri,  by  statute,  any  conveyance  to 
two  or  more  persons,  not  husband  and  wife,  creates  an  estate  in 
common.  And  where  a  husband  purchases  the  interests  of  heirs  and 
his  wife's  dower  and  his  own  interests  are  set  off  to  them  they  are 
tenants  in  common,  under  this  statute.  Harrison  v.  McReynolds,  183 
Mo.  533,  82  S.  W.  Rep.  120. 

"Kinsley  r.  Abbott,  19  Me.  430;  Pearce  v.  Savage,  45  Me.  90; 
Donnels  v.  Edwards,  2  Pick.  617;  Deloney  v.  Hutchison,  2  Rand.  183. 
If  the  debt  is  joint,  it  goes  to  the  survivor  and  he  alone  must  sue. 
Webster  r.  Vandeventer,  6  Gray  428.  But  if  the  debts  are  several, 
belonging  to  different  persons,  who  together  constitute  the  joint-mort- 
gagees, the  doctrine  of  survivorship  does  not  apply.  In  the  event  of  the 
death  of  one  of  them,  his  personal  representatives  or  heirs,  accordinn; 
to  the  local  l-^w,  must  be  made  joint  parties  with  the  survivors.  Brown 
V.  Bates,  55  Me.  522;  Burnett  V.  Pratt,  22  Pick.  551.  And  although 
joint-disseisors  do  not  strictly  hold  in  joint-tenancy,  it  is  a  familiar 
rule  of  the  law  of  adverse  possession  that,  if  one  abandons  the  property, 
the  other  takes  the  entire  estate.  Putney  v.  Dresser,  2  Mete.  583 ;  Allen 
V.  Holton,  20  Pick.  458. 

234 


CH.    IX.]  JOINT   TENANCY.  §    177 

§  177.  Doctrine  of  survivorship,  —  how  right  of  survivorship 
is  destroyed. —  The  chief  incident  of  joint-tenancies,  and  that 
which  distinguishes  them  from  tenancies  in  common,  is  the 
right  of  survivorship.  Although  the  estate  is  limited  to  two 
or  more  and  their  heirs,  the  entire  estate  falls  to  the  sur- 
vivor or  survivors  upon  the  death  of  one,  to  the  exclusion 
of  his  heirs.^2  Nor  does  the  wife  or  husband  of  the  deceased 
joint-tenant  have  respectively  dower  or  curtesy  in  the  es- 
tate.'^ For  the  reason  that  corporations  cannot  be  said  to 
die,  therefore  there  can  be  no  survivorship,  and  if  two  cor- 
porations hold  land  jointly,  they  are  tenants  in  common,  and 
not  joint-tenants.^*  Joint-tenants  are  said  to  hold  the  entire 
estate  per  my  et  per  tout,^^  individually  and  jointly.  Upon 
the  death  of  one,  the  others  do  not  acquire  a  new  interest 
in  the  land  by  descent  from  the  deceased.  Their  interest  is 
only  indirectly  increased  by  the  extinguishment  of  the  de- 
ceased joint-tenant's  interest.  For  this  reason,  in  a  convey- 
ance by  one  joint-tenant  to  another,  a  release  is  not  only 
sufficient  to  vest  in  the  latter  the  entire  estate,  but  it  is  the 
only  proper  common-law  mode  of  assignment.^'  But  the 
ordinary  deeds  of  grant  will  operate,  as  well  as  a  technical 
release,  in  conveying  or  extinguishing  a  joint-tenant's  in- 

12  1  Washburn  on  Real  Prop.  643;  2  Bla.  Com.  183;  Williams  on 
Real  Prop.  134.  But  the  administrator  or  executor  of  the  deceased  co- 
tenant  has  a  right  to  the  growing  crop  planted  by  the  decedent  under 
the  law  of  emblements.  Pritchard  V.  Walker,  22  111.  App.  286;  s.  c. 
121    111.  221. 

13  1  Washburn  on  Real  Prop.  649;  Co.  Lit.  37  b. 

14  1  Washburn  on  Real  Prop.  643;  Dewitt  v.  San  Francisco,  2  Gal. 
289. 

10  1  Washburn  on  Real  Prop,  642;  2  Bla.  Com.  182.  Blackstone 
translates  per  my  {mie)  et  per  tout,  by  the  half  or  moiety,  and  by  the 
whole.  In  Williams  on  Real  Prop.  136,  Mitchell's  note,  a  note  to  Mur- 
ray V.  Hall,  7  Mann.  Gr.  &  Sc.  (62  Eng.  C.  L.  R.)  455,  is  cited  to  the 
eflTect  that  the  proper  rendering  of  mie  (my)  is  nothing  or  not  in  the 
least. 

i«  Williams  on  Real  Prop.  134,  135;  Co.  Lit.  169  a;  1  Washburn  on 
Real  Prop.  648;  1  Prest.  Est.  136;  Rector  v.  Waugh,  17  Mo.  13. 

235 


§    178  JOINT-TENANCY.  [PART   1. 

terest.^^  The  survivor's  estate  will  be  subject  to  the  same 
incumbrances  as  were  imposed  by  him  upon  his  share  of  the 
joint-tenancy  before  the  death  of  his  co-tenant.^*  But  a 
joint-tenancy,  and  therewith  the  right  of  survivorship,  may 
be  destroyed  by  a  conveyance  by  one  joint-tenant  to  a  third 
peraon.  Although  he  has  not  the  power  to  devise  his  in- 
terest, and  although  there  is  a  joint  possession  and  interest  in 
the  estate,  he  may  alien  his  share  to  a  stranger.  Such  a 
stranger  would  at  once  become  r.  tenant  in  common,  and  the 
alienation  would  thus  destroy  the  right  of  survivorship/* 
But  if  there  be  more  than  two  joint-tenants,  the  conveyance 
by  one  of  his  share  will  not  affect  the  right  of  survivorship 
of  the  other  tenants  between  themselves.  They  would  still 
be  joint-tenants  to  each  other.-" 

§  178.  Tenancy  in  common,  what  is. —  Tenancy  in  common, 
is  a  joint  estate,  in  which  there  is  unity  of  possession,  but 

IT  1  Washburn  on  Real  Prop.  648;  Eustace  v.  Sea  wen,  Cro.  Jae.  G96; 
Chester  v.  Willan,  2  Saund.  96  a. 

18  1  Washburn  on  Real  Prop.  046;  Co.  Lit.  185  b;  Lord  Abergraveny's 
Case,  6  Rep.  78.  Where  one  joint  tenant  denies  his  ratifieation  of  a 
sale  of  the  joint  estate,  the  faet  that  he  has  endorsed  and  received 
the  proceeds  of  a  cheek  for  his  portion  of  the  sale  of  the  land,  is  suf- 
ficient evidence  of  his  approval  of  the  sale,  although  he  protested  when 
he  signed  the  check.  Whittaker  v.  Hicks,  123  Iowa  733,  99  N.  W.  Rep. 
575.  The  purchase  of  a  tax  title  by  one  of  several  joint  tenants, 
enures  to  the  benefit  of  all  the  joint  tenants.  Bossier  v.  Hervvig  (1904), 
112  La.  539,  36  So.  Rep.  557;  Alexander  V.  Light,  112  La.  925. 

i»  1  Washburn  on  Real  Prop.  647,  648 ;  Co.  Lit.  273  b.  One  joint- 
tenant  may  mortgage  his  interest  in  the  estate,  and  to  that  extent  will 
the  jus  accrescendi  be  destroyed  or  rather  suspended.  York  v.  Stone,  1 
Salk.  158;  1  Eq.  Cas.  Abr.  293;  Simpson  v.  Ammons,  1  Binn.  175. 
But  it  cannot  be  taken  away  by  a  devise  of  the  deceased  co-tenant's 
share.  Co.  Lit.  185  b;  Duncan  V.  Forrer,  6  Binn.  193.  In  Hawes  V. 
Hawes  (1  Wils.  165),  Lord  Hardwicke  observes  that  with  the  abolition 
of  feudal  tenures,  the  reason  for  the  favorable  policy  of  the  common 
law,  toward  joint  estates  ceased  and  because  of  the  injustice  of  the 
right  of  survivorship,  such  estates  should  no  longer  be  regarded  with, 
favor  by  the  courts.     See  also,  4  Kent's  Com.  361. 

20  2  Bla.  Com.   186;   Co.  Lit.  See.  294. 
236 


CH.    IX.]  JOINT-TENANCY.  §    178 

separate  and  distinct  titles.  Joint  estates  are  usually  so 
limited  as  to  be  estates  in  fee.  But  there  may  be  tenancies 
in  common  and  other  joint  estates  in  estates  for  life  or  for 
years,-^  and  where  an  estate  is  given  to  two  during  their 
"natural  lives"  and  there  is  a  limitation  over  "after  the  de- 
cease of  both  "  the  limitation  in  remainder  does  not  take 
effect  until  the  survivor's  death,  and  after  the  death  of  ona 
of  them,  the  survivor  takes  the  whole  of  the  estate.^^  The 
tenants  have  separate  and  independent  freeholds  or  lease- 
holds in  their  respective  shares,  which  they  manage  and  dis- 
pose of  as  freely  as  if  the  estate  was  one  in  severalty.  There 
is  no  restriction  upon  their  power  of  alienation.^^  And  the 
tenant  may  dispose  of  it  by  will,  while  the  heirs  of  each  co- 
tenant  will  inherit  the  estate.  In  like  manner,  the  husband 
or  wife  of  a  tenant  in  common  will  have,  respectively,  curtesy 
and  dower  in  this  species  of  joint  estate.^*     The  interest  of 

21  See  ante.  Sec.  175. 

22  Glover  v.  Stillson  (Conn.),  15  Atl.  Rep.  752, 

23  1  Washburn  on  Real  Prop.  652,  G53 ;  Brown  v.  Wellington,  106 
Mass.  318,  8  Am.  Rep.  330;  Butler  v.  Roys,  25  Mich.  53,  12  Am.  Rep. 
218;  Fry  v.  Scott  (Ky.),  11  S.  W.  Rep.  42G;  Bush  v.  Gamble,  127  Pa. 
St.  43.  A  co-tenant's  interest  may  be  mortgaged.  Green  v.  Arnold,  11 
R.  I.  364,  23  Am.  Rep.  466.  And  it  can  be  levied  upon  in  satisfaction  of 
the  co-tenant's  debts.  Boylston  Insurance  Co.  v.  Davis,  68  N.  C.  17,  12 
Am.  Rep.  624;  Newton  v.  Howe  and  Drury,  29  Wis.  531,  0  Am.  Rep. 
616:  Peabody  r.  Minot,  24  Pick.  329;  Duncan  v.  Sylvester,  24  Me.  482; 
Whilton  V.  Whilton,  38  N.  H.  127;  Griswold  v.  Johnson,  5  Conn.  363; 
Prim  V.  Walker,  38  Mo.  97;  McKey  v.  Welch,  22  Texas  390.  In  the 
absence  of  evidence  to  the  contrary,  the  interests  of  several  tenants  in. 
common  are  presumed  to  be  equal.  Jackson  v.  Moore  (1904),  87 
N.  Y.  S.  1101,  94  App.  Div.  504.  One  co-tenant,  without  his  co- 
tenants'  consent,  cannot  convey  an  easement  in  the  common  property. 
Charleston  &  W.  C.  Co.  v.  Fleming,  118  Ga.  699,  45  S.  E.  Rep.  664. 
And  see,  as  to  lease,  Snyder  v.  Harding  (Wash.  1904),  75  Pac.  Rep.  812. 
An  unauthorized  conveyance  by  a  tenant  in  common,  is  voidable,  at  the 
election  of  the  co-tenants.  Kenoye  v.  Brown,  82  Miss.  607,  35  So.  Rep. 
163.  A  lease  of  the  entire  estate  by  one  co-tenant,  is  void,  when  made 
without  authority.  Jackson  v.  O'Roark  (Neb.  1904),  98  N.  W.  Rep. 
1068.     But  see,  Valentine  v.  Healey,  178  N.  Y.  391,  70  N.  E.  Rep.  913. 

24  1  Washburn  on  Real  Prop.  654. 

237 


§    178  JOINT-TENANCY.  [PAKT   I, 

one  tenant  in  common  is  so  independent  of  that  of  his  co- 
tenant,  that  in  a  joint  conveyance  of  the  estate  it  would  be 
treated  as  a  grant  by  each  of  his  own  share  in  the  estate.-' 
And,  unlike  joint-tenancies,  in  order  to  convey  the  share  of 
one  co-tenant  to  another,  the  same  formal  deed  is  required 
as  in  a  conveyance  of  it  to  a  stranger.  A  simple  technical 
release,  without  words  of  inheritance,  would  not  be  sufficient. 
Tenants  in  common  are  not  seised  of  the  entire  estate.  They 
do  not  hold  it  per  my  et  per  tout.'^ 

25  1  Washburn  on  Real  Prop.  656;  2  Prest.  Abst.  77.  And  in  the 
same  manner,  if  a  covenant  of  warranty  in  the  conveyance  of  a  tenancy 
in  common  is  broken,  each  co-tenant  can  sue  individually  for  the 
breach.  Lamb  v.  Danforth,  59  Me.  322,  8  Am.  Rep.  426.  But  they 
must  join  in  an  action  for  the  recovery  of  the  possession.  Co.  Lit.  200 
a;  Rehoboth  v.  Hunt,  1  Pick.  224;  Allen  v.  Gibson,  4  Rand,  468;  John- 
son V.  Harris,  Hayw.  113;  Young  v.  Adams,  14  B.  Mon.  127;  Hines  v. 
Frantham,  27  Ala.  359;  Hughes  v.  Holliday,  3  Greene  (Iowa),  30;  Mul- 
ler  V.  Boggs,  25  Cal.  187.  Contra,  Hillhouse  v.  Mix,  1  Root  246.  One 
tenant  in  common  can  maintain  ejectment  against  a  third  person.  Shel- 
ton  V.  Wilson  (1903),  131  N.  C.  106,  42  S.  E.  Rep.  937.  One  co-ten- 
ant of  real  estate  can  recover  possession  of  the  whole  tract,  as 
against  all  except  his  co-tenants.  Field  v.  Tanner  (Colo.  1904),  75  Pac. 
Rep.  916.  But  see,  as  to  co-tenancy  in  personality,  Jackson  v.  Moore, 
87  N.  Y.  S.  1104,  94  App.  Div.  504.  A  co-tenant  can  recover  possession 
of  the  common  property,  without  joining  his  co-tenants.  Griswold  v. 
Minneapolis  &c.,  Co.  (N.  D.  1903),  97  N.  W.  Rep.  538;  Binswanger  v. 
Hinnenger,  1  Alaska  509.  But  see,  Armstrong  v.  Canady  (Miss.  1903), 
35  So.  Rep.  138.  And  in  the  same  manner  they  must  sue  jointly  for 
injuries  to  the  possession,  such  as  trespass,  nuisance,  etc.  Phillips  v. 
Sherman,  61  Me.  548;  Merrill  v.  Berkshire,  11  Pick.  269;  Austin  r.  Hall, 
13  Johns.  286;  Dupuy  v.  Strong,  37  N.  Y.  372;  Doe  v.  Botts,  4  Bibb. 
420;  Parke  v.  Kilham,  8  Cal.  77. 

26  1  Co.  Lit.  193  a,  n.  80;  1  Washburn  on  Real  Prop.  652.  It  will  of 
course  be  understood  that,  when  speaking  of  the  necessity  of  words 
of  limitation,  reference  is  made  only  to  the  common-law  rule.  Where 
the  necessity  of  words  of  limitation  has  been  removed  by  statute,  in 
the  grant  of  one  co-tenant  to  the  other,  an  ordinary  deed  of  release 
will  operate  to  pass  the  estate  in  fee,  without  words  of  limitation. 
See  post,  Sec.  548.  A  lease  to  two  or  more,  under  New  York  statute, 
creates  an  estate  in  co-tenancy.  McPhillipps  v,  Fitzgerald,  78  N.  Y.  S. 
631,  76  App.  Div.  15, 

238 


CH.    IX.]  JOINT-TENANCY.  "  §    180 

§  179.  Joint  estates,  when  tenancies  in  common. —  The  com- 
mon-law rule  was  that  all  estates,  acquired  by  purchase, 
under  circumstances  which  prevented  the  presence  and  ex- 
istence of  the  so-called  four  unities,  were  tenancies  in  com- 
mon.^^  But,  as  has  been  explained  above,  the  rule  has  nov/ 
been  changed  and  modified  in  this  country,  so  that  the  gen- 
eral rule  here  is  that  all  joint  estates  are  held  to  be  ten- 
ancies in  common,  where  they  are  not  expressly  made  joint- 
tenancies,  whether  acquired  by  purchase  or  by  descent,  ex- 
cept in  the  few  localities  where  tenancy  in  coparcenary  still 
exists.-*  In  a  tenancy  in  common  the  unity  of  possession  is 
all  that  is  required.  The  estates,  the  titles,  and  the  times  of 
enjoyment  might  all  be  different.  One  tenant  may  thus  have 
a  life-estate  and  another  a  fee,  acquired  by  different  titles. 
There  may  be  a  tenancy  in  common  in  a  future  estate,  and 
their  titles  may  vest  and  be  executed  in  possession  at  different 
periods,  provided  at  some  time  during  the  existence  of  both 
estates  there  is  a  unity  of  possession.-" 

§  180.  Tenancy  in  coparcenary. —  This  tenancy  is  the  joint 
estate  which,  according  to  common  law,  vested  by  descent 
in  the  heirs  of  an  estate.  It  partakes  of  the  characteristics 
of  both  joint-tenancies  and  tenancies  in  common.  Like  joint- 
tenancies,  in  a  conveyance  by  one  co-tenant  to  another  of  his 
share,  a  simple  release  was  sufiBcient  without  words  of  limi- 

27  2  Bla.  Com.  191. 

28  4  Kent's  Com.  3G7;  1  Washburn  on  Real  Prop.  653;  Miller  v.  Mil- 
ler, 16  Mass.  59;  Sigourney  v.  Eaton,  14  Pick.  414;  Evans  V.  Brittain,  3 
Serg.  &  R.  135;  Partridge  v.  Colegate,  3  Har.  &  McH.  339;  Johnson  v. 
Harris,  5  Hayw.  113;  Young  v.  DeBruhl,  11  Rich.  L.  638;  Briscoe  v. 
McGee,  2  J.  J.  Marsh,  370;  Church  v.  Church,  15  R.  I.  138;  Bishop  v. 
McCIelland's  Exrs.  (N.  J.),  16  Atl.  Rep.  1;  Bowen  v.  Swander,  121 
Ind.  104;  Bush  v.  Gamble,  127  Pa.  St.  43;  Coudert  v.  Earl,  45  N.  J. 
Eq.  As  to  what  declaration  is  necessary  to  create  a  joint-tenancy,  see 
Hersky  r.  Clark,  35  Ark.  17,  37  Am.  Rep.  1. 

20  1  Washburn  on  Real  Prop.  652;  2  Bla.  Com.  191;  1  Prest.  Est.  loi). 
That  there  may  be  a  tenancy  in  common  in  a  remainder,  see  Coleman  v. 
Lane,  26  Ga.  515. 

239 


§   181  JOINT-TENANCY.  [PART  I. 

tation,  since  they  were  all  seised  in  fee  of  the  entire  estate 
by  descent.^"  And  they  were  like  tenancies  in  common,  in 
that  the  doctrine  of  survivorship  did  not  obtain  in  respect 
to  the  respective  shares  of  the  tenants.  The  heirs  of  a  de- 
ceased tenant  in  coparcenary  inherited  his  share.^^  And  a 
coparcenary  may  make  a  devise  of  his  estate.^-  But  in  this 
country  the  doctrine  of  coparcenary  has  never  prevailed  ex- 
cept in  Maryland ;  in  all  other  States  joint  estates  by  descent 
are  treated  as  tenancies  in  common.  The  subject,  therefore, 
is  of  very  little  importance  to  American  students.'" 

§  181.  Estates  in  entirety. —  This  is  an  estate  arising  in  the 
conveyance  to  a  man  and  wife  jointly.  They  are  not  seised 
of  moieties,  but  of  entireties;  hence  the  name,  estate  in  en- 
tirety.^* In  those  States  where  statutes  have  been  passed, 
giving  to  married  women,  in  respect  to  their  property,  the 
rights  of  femes  sole,  it  has  become  a  question  of  great  doubt, 
whether  tenancy  in  entirety  has  been  abolished  inferentially 
by  the  statute.'^     These  tenancies  resemble  joint- tenancies  in 

30  Co.  Lit.  273  b,  1  Prest.  Est.  138;  Gilpin  v.  Hollingsworth,  3  Md. 
190.  See,  for  case  discussing  the  character  of  the  several  co-tenants' 
interests,  Deavitt  v.  Eing,  73  Vt.  298 ;  50  Atl.  Rep.  1066.  See,  also,  Pope 
V.  Brassfield  (Ky.),  61  S.  W.  Rep.  5;  Whitehead  V.  Slauss,  197  Pa.  St. 
511,  47  Atl.  Rep.  978.  The  possession  of  one  of  the  several  heirs  is 
presumed  to  be  for  all.     Stull  v.  Stull,  197  Pa.  St.  243,  47  Atl.  Rep.  240. 

312  Bla.  Com.  188;   1  Washburn  on  Real  Prop.  650. 

32  1  Washburn  on  Real  Prop.  651;  2  Prest.  Abst.  72. 

33  1  Washburn  on  Real  Prop.  651;  4  Kent's  Com.  367;  Johnson  v. 
Harris,  5  Hayw.  113;  Hoffar  v.  Dement,  5  Gill  132;  Gilpin  v.  Hollings- 
worth, 3  Md.  190;  Bislfop  v.  McClelland's  Ex'rs  (N.  J.),  16  Atl.  Rep.  1; 
Palms  V.  Palms  (Mich.),  36  N,  W.  Rep.  419;  Rowland  v.  Murphy,  66 
Tex.  534;  McPheeters  v.  Wright   (Ind.),  24  N.  E,  Rep.  734. 

8*  1  Prest.  Est.  131;  Shaw  V.  Hearsey,  5  Mass.  521;  Doe  v.  Howland, 
8  Cow.  277 ;  Den  v.  Branson,  5  Ired.  426 ;  Babbit  V.  Scroggin,  1  Duv.  272 ; 
Paul  V.  Campbell,  7  Yerg.  319;  Lux  v.  Hoff,  47  HI.  425;  Farmer's  Bank 
V.  Corder,  32  W.  Va.  233. 

35  In  the  following  cases,  it  has  been  held  that  the  statute  has  had  no 

effect  upon  the  estates  in  entirety  and  that  a  conveyance  to  man  and 

■wife  makes  them  tenants  in  entirety  now,  as  well  as  before  the  statute. 

Marburg  v.  Cole,  49  Md.  402,  33  Am.  Rep.  266;  Hulett  v.  Inlow,  57  Ind. 

240 


CH.    IX.]  JOINT-TENANCY.  §    181 

that  they  have  the  quality  of  survivorship;  the  heirs  of  the 
survivor  would  take  to  the  exclusion  of  the  heirs  of  the  first 
deceased.^**  But,  unlike  joint-tenancies,  the  right  of  survivor- 
ship cannot  be  destroyed  by  the  action  of  either  party.  There 
can,  therefore,  be  no  partition  of  the  estate.^^  During  cover- 
ture the  husband  has  the  entire  control  of  the  estate,  may  con- 
vey it  away,  and  it  is  liable  to  be  sold  under  execution  for  his 
debts.  If  the  husband  survives  the  wife,  his  conveyance  of  it 
to  a  stranger  will  be  as  absolute,  as  if  the  estate  had  been  one 
in  severalty.^*  But  if  the  wife  survives  the  husband,  she  ac- 
quires, by  the  right  of  survivorship,  the  entire  interest  in  the 
land,  and  is  entitled  to  her  proper  action  for  the  recovery  of 
the   possession.^"     The    Statute    of   Limitations    cannot    run 

412,  26  Am.  Rep.  64;  Hemingway  v.  Scales,  42  Miss.  1,  2  Am.  Rep.  586; 
McCurdy  v.  Canning,  64  Pa.  St.  39;  Diver  v.  Diver,  56  Pa.  St.  106; 
Bennett  v.  Child,  19  Wis.  365;  Fisher  V.  Provin,  25  Midi.  347;  Garner 
V.  Jones,  52  Mo.  68;  Harrison  v.  McReynolds,  18;3  !'(<.  5:53,  82  S.  W. 
Rep.  120;  Robinson  v.  Eagle,  29  Ark.  202;  Goelctt  r.  V,c  i.  31  Burh.  314; 
Shinn  r.  Shinn,  42  Kan.  1 ;  Meeker  V.  Wright,  75  N.  Y.  26 ;  Gardinier  V. 
Furey,  50  Hun  82;  O'Connor  v.  McMahon,  54  Hun  06.  But  a  contrary 
conclusion  is  reached  by  the  courts  in  the  cases  cited  jwat.  Cooper  v. 
Cooper,  76  111.  57;  HoflFman  v.  Steigers,  28  Iowa  302;  Clark  v.  Chirk,  56 
N.  H.  105.  Estates  in  entirety  are  abolished  by  statute  in  Kansas. 
Stewart  v.  Thomas  (1902),  68  Pac.  Rep.  70.  Under  Massachusetts  stat- 
ute, a  conveyance  to  two  or  more,  if  husband  and  wife,  creates  a  joint 
estate,  or  an  estate  by  entirety.  But  if  not,  an  estate  in  common. 
McLaughlin  V.  Rice,  185  Mass.  212,  70  N.  E.  Rep.  52.  See  also,  for 
similar  statute,  in  Missouri,  Harrison  V.  McReynolds,  183  Mo.  533, 
82  S.  W.  Rep.  120.  And  for  similar  act,  in  New  York,  see,  MePhillipps 
r.  Fitzgerald,  177  N.  Y.  543,  69  N.  E.  Rep.  1126.  The  riglit  of  a  wife, 
as  a  tenant  by  entirety,  cannot  be  effected  by  a  statute,  passed  subse- 
quent to  the  vesting  of  the  estate,  making  all  such  estates  tenancies  in 
common.  Pease  v.  Inh.  Whitman,  182  Mass.  363,  65  N.  E.  Rep.  795. 
38  1  Washburn  on  Real  Prop.  672,  673;   1  Prest.  Est.  132. 

37  1  Washburn  on  Real  Prop.  673;  Shinn  v.  Shinn,  42  Kan.   1. 

38  1  Prest.  Est.  135;  Barber  v.  Harris,  15  Wend.  615;  Needlmm  V. 
Branson,  5  Ired.  426;  Ames  V.  Norman,  4  Sneed.  683;  Tane  v.  Campbell, 
7  Yerg.  319;  Bennett  v.  Child,  19  Wis.  364. 

30  Pierce  v.  Chase,  108  Mass.  258;  French  V.  Mehan,  50  Pa.  St.  286; 
McCurdy  v.  Canning,  64  Pa.  St.  39. 

1«  241 


§    183  JOINT-TENANCY.  [PART   I. 

against  her  right  of  survivorship  during  the  disability  of 
coverture/" 

§  182.  Estate  in  entirety  in  a  joint-tenancy,  or  tenancy  in 
common. —  As  a  consequence  of  the  doctrine  explained  in  the 
foregoing  paragraph,  if  husband  and  wife,  as  such,  are 
made  joint-tenants  or  tenants  in  common  with  others,  they  will 
be  considered  as  one  co-tenant,  and  will  take  but  one  share  be- 
tween them,  equal  to  the  shares  of  the  others.  Thus  if  A.  and 
B.,  husband  and  wife,  are  made  joint-tenants  with  C,  A.  and 
B.  will  take  a  one-half  interest,  while  C.  will  have  the  other 
half.  And  the  death  of  the  husband  or  wife  would  have  no 
effect  on  C.  's  share.  On  the  other  hand,  if  C.  died,  A.  and  B. 
would  take  the  whole  estate  in  entirety.*^ 

§  183.  Tenancy  in  common  between  husband  and  wife. — 
Although  the  estate  in  entirety  has  met  with  general  recogni- 
tion in  this  country,  yet  in  a  number  of  States  the  estate  does 
not  exist,  and  a  joint  estate  held  by  husband  and  wife  is 
either  treated  as  a  tenancy  in  common,  as  in  Ohio  and  Vir- 
ginia, or  as  a  joint-tenancy,  as  in  Connecticut.*-  And  fur- 
thermore, if  at  any  time  a  joint-tenancy  or  tenancy  in  common 
is  desired  to  be  created  between  man  and  wife,  a  joint  estate 
will  be  treated  as  such,  if  that  intention  is  clearly  expressed 
in  the  deed  or  will.*^    An  express  limitation  of  the  remainder 

*o  1  Washburn  on  Real  Prop.  673 ;   Co.  Lit.  326  a. 

*i  1  Washburn  on  Real  Prop.  674;  Williams  on  Real  Prop.  225;  1 
Prest.  Est.  132;  Barber  V.  Harris,  15  Wend.  615;  Johnson  v.  Hart,  6 
Watts  &  S.  319;  Gordon  v.  Whieldon,  11  Beav.  170.  But  see  Hampton 
V.  Wheeler,  99  N.  C.  222,  where  it  is  held  that  as  to  the  other  co-tenants, 
the  husband  and  wife  are  simply  individual  co-tenants,  each  taking  his 
and  her  proportionate  share  in  the  general  estate,  the  only  difference 
from  the  other  interests  being  that  the  interests  of  the  husband  and  wife 
upon  the  death  of  one  of  them  became  united  in  the  survivor. 

<2See  1  Washburn  on  Real  Prop.  674,  675;  Whittlesey  V.  Fuller,  11 
Conn.  337;  Wilson  v.  Fleming,  13  Ohio  68. 

"  1  Washburn  on  Real  Prop.  674 ;  McDermott  v.  French,  15  N.  J.  Eq. 
81;  Cloos  V.  Cloos,  55  Hun  450.  In  Kentucky  and  Iowa,  a  conveyance 
to  husband  and  wife  gives  them  a  tenancy  in  common,  unless  the  estate 
242 


CH.    IX.]  JOINT-TENANCY.  §    184 

of  the  estate,  after  the  death  of  both  husband  and  wife,  to 
the  heirs  of  both,  a  provision  being  made  for  a  division  of  the 
property  between  these  two  classes  of  heirs,  will  cut  down  the 
joint  estate  between  husband  and  wife  to  a  life  estate,  and 
thus  prevent  the  right  of  survivorship  from  affecting  the 
rights  of  the  heirs  to  the  remainder.** 

§  184.  Estates  in  partnership. —  When  a  joint  estate  is 
vested  in  the  members  of  a  partnership,  purchased  with  part- 
nership funds  and  for  partnership  purposes,  it  is  called  an 
estate  in  partnership.  The  estate  is  treated  in  equity  as 
personal  property,  and  made  liable  to  the  satisfaction  of  the 
partnership 's  debts  in  preference  to  the  claims  of  private  cred- 
itors or  of  the  widows  and  heirs  of  one  of  the  partners.  Real 
estate  held  by  a  partnership  is  subject  to  the  partnership 
debts,  and  until  they  are  satisfied  no  other  claim  can  be  made 
upon  the  share  of  any  one  of  the  partners.*'  And  if  one 
partner  has  paid  more  than  his  share  of  the  debts,  he  also  has  a 
lien  upon  the  real  estate  to  protect  his  right  of  contribution 
for  such  over-payment.*"     Real  estate,  purchased  by  a  firm, 

is  expressly  declared  to  be  a  tenancy  in  entirety.  Rogers  V.  Grider, 
1  Dana  242;  HofTnian  v.  Stigers,  28  Iowa  302.  See,  also,  Stewart  V. 
Thomas  (Kan.  1902),  68  Pac.  Rep.  70;  McLaughlin  v.  Rice,  185  Mass. 
212,  70  N.  E.  Rep.  52;  McPhillipps  v.  Fitzgerald,  177  N.  Y.  543,  69  N.  E. 
Rep.  1126. 

**  Hadlock  v.  Gray,  104  Ind.  596. 

*5  Cox  V.  McBurney,  2  Sandf.  561 ;  Delmonico  v.  Guillaume,  2  Sandf. 
Ch.  366;  Deming  v.  Colt,  3  Sandf.  284;  Lane  V.  Tyler,  49  Me.  2.52; 
Galbraith  v.  Gedge,  16  B.  Mon.  631;  Howard  v.  Priest,  5  Mete.  582; 
Lang  V.  Waring,  25  Ala.  625 ;  Marvin  v.  Trumbull,  Wright  386 ;  Coder 
V.  Ruling,  27  Pa.  St.  84;  Hunter  v.  Martin,  2  Rich.  L.  541;  1  Pars,  on 
Con.  149.  The  interest  of  a  partner  in  a  partnership  which  was  to 
divide  "  the  proceeds  and  profits  on  sales  of  land,"  to  be  converted  into 
money  and  "  divided  in  proportion  to  their  several  interests,"  is  held 
to  be  personalty  and -passes,  under  his  will  as  such.  Barney  V.  Pike, 
87  N.  Y.  S.  1038,  94  App.  Div.  199;  Darrow  r.  Calkins,  154  N.  Y.  503. 
49  N.  E.  Rep.  61,  48  L.  R.  A.  299,  61  Am.  St.  Rep.  637. 

<o  Buffum  V.  Buffum,  49  Me.  108 ;  Burnside  v.  Merrick,  4  Mete.  537 ; 
Howard  v.  Priest,  5  Mete.  585;  Smith  V.  Jackson,  2  Edw.  Ch.  28;  Loubat 
f.  Nourse,  5  Fla.  350. 

243 


5    185  JOINT-TENANCY.  [PART    I. 

will  have  in  equity  all  the  characteristics  of  an  estate  in  co- 
l)artnership,  even  though  the  legal  title  be  taken  in  the  name 
of  one  partner.  He  will  hold  the  legal  title  in  trust  for  the 
partnership.  Of  course,  if  the  partner  holding  the  legal  title 
disposes  of  it  to  a  purchaser  for  value  without  notice  of  the 
trust,  the  purchaser  will  take  to  the  exclusion  of  the  partner- 
ship claims.*^ 

§  185.  Several  interests  of  partners. —  When,  however,  the 
partnership  debts  have  all  been  paid,  the  partners  are  tenants 
in  common  of  the  partnership  lands.  Their  widows  have 
dower,  and  their  heirs  are  entitled  to  it  upon  the  decease  of  the 
partners.  It  is  also  subject  to  partition.*^  In  this  country, 
at  least,  if  the  real  estate  had  to  be  sold  to  liquidate  the 
partnership  debts,  any  surplus  that  might  be  found  undis- 
posed of  would  be  treated  as  real  property,  and  go  to  the 
widow  and  heirs  of  a  deceased  partner.*® 

<7  Smith  r.  Allen,  5  Allen  456;  Moreau  v.  Safferons,  3  Sneed  595;  1 
Pars,  on  Con.   153. 

48  Sane  r.  Tyler,  49  Me.  252;  Howard  V.  Priest,  5  Mete.  582;  Whaling 
Co.  v.  Borden,  10  Cush.  458 ;  Tillinghast  v.  Champlin,  4  R.  I.  173 ;  Olcott 
I*.  Wing,  4  McLean,  15;  Deloney  V.  Hutcheson,  2  Rand.  183;  Dilworth  V. 
Mayfield,  36  Miss.  40;  Buchan  V.  Sumner,  2  Barb.  Ch.  163;  Buckley  V. 
Buckley,  11  Barb.  43;  Piper  f.  Smith,  1  Head  93;  Patterson  f.  Blake, 
12  Ind.  436.  Where  there  are  debts  unsatisfied,  equity  regards  the  real 
estate  as  personalty,  so  far  as  to  enable  the  surviving  partner  to  dispose 
of  it  for  the  satisfaction  of  the  partnership  debts,  and  a  court  of 
equity  will  compel  the  widow  and  heirs  of  the  deceased  partner  to 
execute  the  deeds  of  conveyance.  Delmonico  r.  Guillaume,  2  Sandf.  Ch. 
366:  Boyce  r.  Coster,  4  Strobh.  Eq.  25;  Winslow  V.  Chiffelle,  Har.  Eq. 
25;  Beyers  v.  Elliott,  7  Humph.  204;  Arnold  v.  Wainwright,  6  Minn. 
358. 

4»0ffut  r.  Scott,  47  Ala.  105;  Foster's  Appeal,  74  Pa.  St.  398;  22  Am. 
Law  Reg.  300,  notes  307-310.  See  also,  generally,  Shearer  v.  Shearer,  98 
Mass.  107;  Jones'  Appeal,  70  Pa.  St.  169;  Bopp  r.  Fox,  63  HI.  540;  1 
Pars,  on  Con.  150.  In  England,  the  interest  of  the  partner  in  partner- 
ship real  estate  is  looked  upon  as  personalty,  and  therefore,  the  sur- 
plus after  satisfaction  of  the  partnership  debts,  goes  to  the  personal 
representative,  instead  of  to  the  lieirs.  Darby  v.  Darby,  3  Drewry  495; 
1  Pars,  on  Con.  149.  And  see  Rice  v.  Barnard,  20  Vt.  479:  Lang  v. 
244 


CH.    IX.]  JOINT-TENANCY.  §    185 

Waring,  17  Ala.  145;  Barney  v.  Pike,  87  N.  Y.  S.  1038,  94  App.  Div. 
199;  Darrow  v.  Calkins,  154  N.  Y.  503,  49  N.  E.  Rep.  61,  48  L.  R.  A. 
299,  61  Am.  St.  Rep.  637.  A  deed  of  partnership  property  by  one 
partner,  made  in  the  firm  name,  vests  an  equitable  title  in  the  pur- 
chaser. Conner  r.  Smith  (Tex.  1904),  80  S.  W.  Rep.  105.  Without 
consent  of  the  other  partners  one  partner  cannot  mortgage  firm  property 
for  his  individual  debt,  as  such  property  is  a  trust  fund  for  firm  credi- 
tors. Lance  v.  Butler,  135  N.  C.  419,  47  S.  E.  Rep.  488;  Cunday  v. 
Hall,  208  Pa.  St.  335,  57  Atl.  Rep.  761;  Johnson  v.  Clark,  18  Kan. 
157;  Nat.  Bank  r.  Bank,  130  Mich.  332,  89  N.  W.  Rep.  941;  Parker 
V.  Bowles,  57  N.  H.  491.  For  partnerships  in  land,  relating  to  mines 
and  mining  property,  see  White,  Mines  &  Min.  Rem.,  Sees.  328-352. 

245 


SECTION  11. 

mCroENTS    COMMON   TO    ALL   JOINT   ESTATES. 

Section  186.  Disseisin  by  one  co-tenant. 

187.  Adverse  title   acquired  by   one  co-tenant. 

188.  Maintenance  of  actions   against  trespassers. 

189.  Alienation  of  joint  estates. 

190.  Waste  by  co-tenants. 

191.  Liability  of  one  co-tenant  for  rents  and  profits. 

§  186.  Disseisin  by  one  co-tenant. —  As  the  possession  of  co- 
tenants  is  common  to  all,  a  tenure  exists  between  them  in 
respect  thereto,  so  that  if  one  co-tenant  is  in  possession,  his 
possession  is  generally  held  to  be  for  the  benefit  of  all;  the 
sole  possession  by  one  does  not  constitute  in  itself  a  disseisin 
of  the  other  co-tenants,  notwithstanding  it  continues  for  the 
statutory  period  of  limitation.^"  And  where  the  tenancy  in 
common  rests  upon  a  title' by  adverse  possession  the  tenancy  is 
established  by  proof  of  adverse  possession  by  one  of  the  al- 
leged co-tenants  under  color  of  title  to  the  co-tenants.^^     But 

ooMcChmg  V.  Ross,  5  Wheat.  IIG;  Clymer  v.  Dawkins,  3  How.  674; 
Colburn  r.  Mason,  25  Me.  434;  Thomas  v.  Hatch,  3  Sumn.  170;  German 
r.  Machin,  6  Paige  Ch.  288;  Clowes  v.  Hawley,  12  Johns.  484;  Lloyd 
r.  Gordon,  2  Har.  &  McH.  254 ;  Martin  v.  Quattelbaum,  3  MeCord  205 ; 
Prage  v.  Chinn,  4  Dana  50;  Story  v.  Saunders,  8  Humph.  663;  Long 
V.  McDow,  87  Mo.  197;  Terrell  v.  Martin,  64  Tex.  121;  Hamilton  v. 
Redden  (Kan.),  24  Pac.  Rep.  76;  Millis  v.  Roof,  121  Ind.  360;  In  re 
Grider's  Estate,  81  Cal.  571,  22  Pac.  Rep.  908;  Grand  Tower,  etc.,  Co. 
V.  Gill,  111  111.  541;  Rhett  V.  Jenkins,  25  S.  C.  453;  Stevenson  v. 
Anderson,  87  Ala.  228;  Newman  v.  Bk.  of  California,  80  Cal.  368. 

51  Lenoir  v.  Valley  River  Min.  Co.,  106  N.  C.  473.  The  possession 
of  a  co-tenant  is  presiimed  to  be  for  his  co-tenants  as  well  as  himself 
and  the  statute  will  not  run  until  his  adverse  claim  is  brought  home 
to  his  co-tenants.  Stevens  v.  Martin,  168  Mo.  407,  08  S.  W.  Rep.  347; 
Bentley  V.  Callahan,  70  Miss.  302,  30  So.  Rep.  709;  Bennett  v.  Peirce, 
246 


CH.    IX.]  INCIDENTS   OF   ALL   JOINT   ESTATES.  §    186 

the  husband  of  a  tenant  in  common  is  not  estopped  from  set- 
ting up  adverse  title  to  the  land  on  a  simple  exclusive  posses- 
sion.^^ To  create  a  title  by  adverse  possession  in  one  co-ten- 
ant, he  must  not  only  liave  exclusive  possession,  but  he  must 
also  deny  the  right  of  the  others  in  the  estate,  and  maintain 
such  denial  bng  enough  for  those  rights  to  be  barred  by  the 
Statute  of  Limitations;  and  this  denial  must  expressly,  or 
by  necessary  implication  from  its  notoriety,  be  made  known 
to  the  others.^^  Among  the  acts  which  produce  such  an  ouster 
of  the  co-tenants,  as  to  cause  the  statute  to  run  against  them, 
is  the  refusal  to  share  in  the  profits,  a  conveyance  of  the 
entire  estate  to  a  third  party  who  enters  into  possession,  an 
entry  into  possession  of  part  of  the  estate  under  an  agreement 
that  this  shall  be  a  practical  partition,  and  many  other  acts 
which  are  inconsistent  with  their  joint-ownership."*     If  the 

50  W.  Va.  604,  40  S.  E.  Rep.  395;  Stull  v.  Stull,  197  Pa.  St.  243,  47 
Atl.  Rop.  240.  To  constitute  an  adverse  holding  by  a  co-tenant,  there 
must  generally  be  some  notorious  act  of  exclusive  ownership  of  such 
a  nature  as  to  impart  notice  of  the  adverse  claim.  Golden  v.  Yvcr, 
180  Mo.  196,  79  S.  W.  Rep.  143;  Merryman  V.  Cumberland  Paper  Co. 
(Md.  1903),  50  Atl.  Rep.  304;  Soper  v.  Lawrence  Bros.,  98  Me.  268,  56 
Atl.  Rep.  908;  Guthrie  v.  Guthrie  (Ky.  1904),  78  S.  W.  Rep.  474; 
Blankenhorn  v.  Lennox    (Iowa  1904),  98  N.  W.  Rep.  556. 

52  Cooper  r.  Fox   (Miss.),  7  So.  Rep.  342. 

53  Doe  V.  Bird,  11  East  49;  Harpending  t'.  Dutch  Church,  16  Pet. 
455;  Presbrey  V.  Presbrey,  13  Allen  284;  Jackson  V.  Tibbitts,  9  Cow. 
241;  Forward  v.  Deetz,  32  Pa.  St.  69;  Meredith  v.  Andres,  7  Ired.  L.  5;* 
Gray  v.  Givens,  Riley  Ch.  41;  Corbin  v.  Cannon,  31  Miss.  570;  Owen 
V.  Morton,  24  Cal.  377;  St.  Louis,  etc.,  Ry.  Co.  v.  Prather,  75  Tex. 
53;  Coogler  v.  Rogers  (Fla.),  7  So.  Rep.  391;  Stoddard  v.  Weston, 
6  N.  Y.  S.  34;  English  v.  Ouster,  119  Ind.  93;  Mayes  v.  Manning,  73 
Tex.  43;  Peck  v.  Lockridge,  97  Mo.  549;  Richards  v.  Richards,  75 
Mich.  408;  Golden  v.  Yver,  180  Mo.  196,  79  S.  W.  Rep.  143;  Merrym 
V.  Paper  Co.  (Md.  1903),  56  Atl.  Rep.  364;  Soper  v.  Lawrence,  98  Me. 
268,  56  Atl.  Rep.  908;  Guthrie  v.  Guthrie  (Ky.  1904),  78  S.  W.  Rep. 
474;  Blankenhorn  v.  Lennox  (Iowa  1904),  98  N.  W.  Rep.  556. 

54  Thomas  v.  Pickering,  13  Me.  337;  Bigelow  v.  Jones,  10  Pick.  160; 
Jackson  v.  Whitbeck,  6  Cow.  632;  Bogardus  v.  Trinity  Church,  4  Paige 
178;  Rider  v.  March,  46  Pa.  St.  380;  Cullen  v.  Motzer,  13  Serg.  &  R. 
356;  Frederick  V.  Gray,  10  Serg.  &  R.  182;  Jones  v.  Weathersbee,  4 
Strobb.  50;  Gill  v.  Fauntleroy,  8  B.  Mon.  177;  Weisinger  v.  Murphy, 

247 


§    187  INCIDENTS   OF    ATJi   JOINT   ESTATES.  |  PART   I. 

eo-tenant  in  possession  refuses  to  recognize  the  rights  of  the 
others,  hy  a  refusal  to  share  in  the  rents  and  profits,  or  resist- 
ance of  their  right  to  enter  into  possession,  they  may  have 
either  trespass  or  ejectment  at  their  election  for  such  ouster.'"' 
Neither  action  can  be  maintained  against  a  co-tenant,  as  long 
as  they  both  remain  in  possession,  and  the  wrong  complained 
of  does  not  constitute  a  clear  case  of  eviction  or  destruction 
of  some  part  of  the  common  property.'"  But  there  may  be  an 
ouster  from  one  part  of  the  land,  while  the  tenant  so  evicted 
remains  in  possession  of  another  part,  and  trespass  would  lie 
for  such  partial  eviction.'^ 

§  187.  Adverse  title  acquired  by  one  co-tenant. —  So  intimate 
is  the  relation  of  co-tenants  that  one  cannot  acquire  by  pur- 
chase an  adverse  and  superior  title,  and  set  it  up  in  opposition 
to  his  co-tenants,  unless  they  refuse  to  contribute  their  share 
of  the  expense  of  procuring  it.     The  title  is  held  to  be  ac- 

2  Head  674;  Miller  v.  Miller,  60  Pa.  St.  10;  Hinkley  v.  Green,  52  111. 
230;  Ward  v.  Farmer,  92  N.  C.  93;  Highstone  v.  Burdette,  61  Mich. 
54,  27  N.  W.  Rep.  852;  Streeter  v.  Shultz,  45  Hun  406.  Where  a  co- 
tenant  occupies  the  common  property,  solely  and  exclusively,  as  his 
own,  paj's  taxes  and  keeps  the  rents  and  profits,  this  is  such  an  adverse 
claimer  as  will  ripen  into  a  title  by  limitation.  Cochrane  v.  Cochrane 
(W.  Va.  1904),  46  S.  E.  Rep.  924;  Rogers  v.  Miller  (W.  Va.  1904), 
47  S.  E.  Rep.  354.  And  so  are  acts  of  independent  ownership;  the 
execution  of  a  deed  to  the  land  and  describing  oneself  as  owner,  suf- 
ficient claims  to  start  the  statute  to  run.  Hendricks  v.  Musgrove, 
183  Mo.  300,  81  S.  W.  Rep.  1265. 

05  Keay  v.  Goodwin,  16  Mass.  1;  Bennett  v.  Clemence,  6  Allen  18; 
Erwin  V.  Olmstead,  7  Cow.  229;  King  v.  Philips,  1  Lans.  421;  Austin 
V.  Rutland,  etc.,  R.  R.,  45  Vt.  215;  Jones  V.  Chiles,  8  Dana  163;  Jones 
V.  DeLassus,  84  Mo.  541;  Frakes  v.  Elliott,  102  Ind.  47;  St.  Louis,  etc., 
Ry.  Co.  V.  Prather,  75  Tex.  53;  Southern  Cotton  Oil  Co.  v.  Henshaw 
(Ala),  7  So.  Rep.  760. 

5«Jewett  V.  Whitney,  43  Me.  242;  Silloway  v.  Brown,  12  Allen  37; 
Erwin  v.  Olmstead,  7  Cow.  229;  Bennet  v.  Bullock,  35  Pa.  St.  364; 
Filbert  v.  Hoff,  42  Pa.  St.  97. 

57  Murray  v.  Hall,  7  C.  B.  441;  Bennett  V.  Clemence,  6  Allen  10  j 
Carpentier  v.  Webster,  27  Cal.  524. 

248 


CH.    IX.]  INCIDENTS   OF   ALL   JOINT   ESTATES.  §    18S 

quired  by  one  for  the  benefit  of  all.^^  But  one  co-tenant  may 
buy  the  others'  interests  at  public  sale,  and  hold  the  interest  so 
acquired  adversely.'" 

§  188.  Maintenance  of  actions  against  trespassers. —  If  a 
third  person  should  disturb  the  possession  of  the  co-tenant, 
whether  the  disturbance  should  amount  to  an  ouster  or  only 
a  trespass,  to  such  an  extent  are  the  interests  of  the  co-tenants. 
considered  to  be  one  interest,  that  a  single  tenant  may  suc- 
cessfully prosecute  the  suit  against  such  trespasser  for  the- 

58  Braintree  v.  Battles,  6  Vt.  395 ;  Van  Home  v.  Fonda,  5  Ch.  Johns.. 
407;  Wells  V.  Chapman,  4  Sandf.  Ch.  312;  Hussey  f.  Blood,  29  Pa.  St. 
319;  Flagg  V.  Maun,  2  Sumn.  490;  Venable  V.  Beauchamp,  3  Dana  321; 
Eothwell  V.  Dewees,  2  Black  613;  Fallon  v.  Chidester,  46  Iowa  588; 
26  Am.  Rep.  164;  Barker  v.  Jones,  62  N.  H.  497;  Mentor  V.  Durham,  13; 
Oreg,  470;  Holterhoff  V.  Mead,  36  Minn.  42;  Todd  v.  Lunt,  148  Mass. 
322;  Battin  v.  Woods,  27  W.  Va.  58;  Calkins  v.  Stcinbach.  56  Cal. 
117;  St.  Louis,  etc.,  Ry.  Co.  v.  Prather,  75  Tex.  53;  Gilchrist  v.  Bos- 
wick,  33  W.  Va,  168;  Richards  v.  Richards,  75  Me.  408;  Moon  v.  Jen- 
nings, 119  Ind.  130.  It  is  a  fraud  for  one  tenant  to  let  the  taxes- 
remain  unpaid,  and  then  buy  in  the  tax-title,  for  the  purpose  of  acquir- 
ing title  to  the  whole  premises.  Brown  v.  Hogle,  30  111.  119.  See 
Preston  v.  Wright,  81  Me.  306.  But  one  co-tenant,  who  pays  the  taxes, 
can  claim  contribution  against  the  others,  and  can  enforce  such  claim 
by  asserting  a  lien  against  the  interests  in  the  joint-estate  of  those  who- 
refuse  to  contribute.  Hurley  v.  Hurley,  148  Mass.  444.  A  co-tenant 
paying  taxes  on  the  common  property  is  held  to  have  a  lien  on  the- 
interest  of  the  co-owner  therefor,  in,  McClintock  r.  Fontaine.  119  Fed. 
Rep.  448.  But  in  the  absence  of  express  agreement,  no  contribution  or 
recovery  is  allowed  for  services  in  caring  for  the  common  property- 
Anderson  r.  Northrop  (Fla.  1902),  33  So.  Rep.  419.  Where  two  co- 
tenants  agree  to  buy  the  interest  of  a  third,  the  obligations  of  the* 
purchasers  are  so  far  several,  that  one  can  disaffirm  the  sale,  without 
effecting  the  status  of  the  other.  Mylin  v.  King  (Ala.  1904).  35  So. 
Rep.  998.  A  re-location  of  a  mining  claim,  on  Government  land,  by- 
a  co-tenant,  enures  to  the  beenflt  of  all.  Yarwood  r.  Johnson.  29  Wash. 
643,  70  Pac.  Rep,  123.  See,  White,  Mines  &  Min.  Rem.,  Sec.  24  an* 
cases  cited. 

6»  Peck  17.  Lockridge,  97  Mo.  549,  A  purchase  at  a  foreclosure  sale- 
is  such  an  adverse  claim  as  to  set  the  statute  of  limitations  in  motion. 
Francis  V.  Million  (Ky,  1904),  80  S.  W,  Rep.  486.  But  see  Bossier  v. 
H-Twig  (1904),  112  La.  539,  36  So.  Rep.  667. 

249 


§    190  INCIDENTS   OP   ALL   JOINT   ESTATES.  [PART   I. 

benefit  of  all,  without  joining  the  others  as  parties  to  the 
suit.'" 

§  189.  Alienation  of  joint  estates. —  The  co-tenants  of  all 
kinds  of  joint  estates,  except  tenants  in  entirety,  may  alien 
their  shares  in  the  estate,  without  the  participation  or  con- 
sent of  the  other  tenants.  Their  deeds  convey  whatever  in- 
terest they  possess.®^  The  same  rule  would  apply  to  a  lease  by 
one  co-tenant.  It  would  be  valid  as  to  every  one  except  the 
co-tenants  who  had  not  joined  in  the  lease,  or  avithorized  its 
execution  by  the  tenant  who  did  sign  it.**^  But  a  lease  exe- 
cuted by  one  co-tenant,  with  the  consent  of  all,  and  as  their 
agent,  is  as  binding  upon  all  as  if  it  had  been  executed  by 
all  in  person. ^^  If  the  co-tenancy  is  an  estate-tail,  the  convey- 
ance by  one  of  the  co-tenants  will,  under  the  Massachusetts 
statute,  bar  the  entail  as  effectually  as  a  joint  conveyance,** 

§  190.  Waste  by  co-tenants. —  If  one  co-tenant  misuse  or 
abuse  the  property,  while  in  possession,  he  is  liable  to  the 
others  for  waste.  But  as  a  general  rule  he  is  only  liable, 
where  the  waste  complained  of  results  in  an  actual  injury  to 
the  property.     He  must  do  something  more  than  exercise  the 

ooCorley  v.  Parton,  75  Tex.  98;  Bounds  v.  Little,  75  Tex.  316;  Voss 
V.  King,  33  W.  Va.  236;  Shelton  v.  Wilson  (1903),  131  N.  C.  106,  42 
S.  E.  Rep.  937;  Field  v.  Tanner  (Colo.  1904),  75  Pac.  Rep.  916;  Gris- 
wold  V.  Minneapolis  &c.,  Co.  (N.  D.  1903),  97  N.  W.  Rep.  538.  But 
see  Armstrong  v.  Carmody  (Miss.  1903),  97  So.  Rep.  138. 

aiPeabody  v.  Minot,  24  Pick.  329;  Buttler  V.  Roys,  25  Mich.  53,  12 
Am.  Rep.  218;  Brown  v.  Wellington,  106  Mass.  318,  8  Am.  Rep.  300; 
York  f.  Stone,  1  Salk.  158;  Simpson  v.  Ammons,  1  Binn.  175;  Green 
V.  Arnold,  11  R.  I.  364,  23  Am.  Rep.  330;  Barnes  v.  Lynch  (Mass.), 
24  N.  E.  Rep.  783. 

«2  Grundy  v.  Martin,  143  Mass.  279;  Tipping  v.  Robbins,  64  Wis. 
.546;  McKinley  v.  Peters,  111  Pa.  St.  283;  Richey  V.  Brown,  58  Mich. 
435;  Omaha  &  Grant,  etc.,  Co.  V.  Tabor,  13  Colo.  41. 

«3 Harms  v.  McCormick  (111.),  22  N.  E.  Rep.  511.  For  unauthorized 
conveyances  by  co-tenant,  see  note  to  Sec.  178.  See  also,  Jackson  v. 
O'Roark    (Neb.   1904),  98  N.  W.  Rep.   1068. 

«*  Coombs  V.  Anderson,  138  Mass.  376. 
250 


CH.  IX.]        INCIDENTS  OP  ALL  JOINT  ESTATES.        §  190 

rights  of  ownership.  He  may  therefore  be  held  liable  for 
negligence  in  keeping  up  the  necessary  repairs,  or  doing  any 
affirmative  act  which  injures  the  inheritance,  such  as  flowing 
land,  pulling  down  houses,  and  the  like."^  A  tenant  is  guilty 
of  technical  waste  in  putting  a  house  on  the  joint-estate  with- 
out the  consent  of  his  co-tenant,  and  the  latter  can  remove  it 
from  the  premises  without  sustaining  liability  for  doing  so,  if 
he  exercise  reasonable  care.°*^  If  a  co-tenant  threatens  wilful 
and  malicious  destruction  of  the  property,  he  may  be  re- 
strained by  injunction.*^  But  the  tenant  is  under  no  obliga- 
tion to  make  improvements,  and  if  one  co-tenant  enters  upon 
the  land  and  makes  improvements,  he  cannot  hold  the  others 
liable  for  their  share,  nor  can  he  claim  the  exclusive  right  to 
these  improvements.  But  if  the  repairs  are  necessary  to  pre- 
vent the  property  from  going  to  decay,  he  may  either  compel 
the  others  to  join  hirii  in  making  the  repairs,  or,  if  he  has 
notified  them  that  such  repairs  are  necessary,  bring  an  action 
against  them  for  their  share  of  the  expenses.*^     It  has  been 

«5Hines  v.  Robinson,  57  Me.  328;  Hutchinson  v.  Chase,  39  Me.  508; 
Hastings  r.  Hastings,  110  Mass.  285;  McLellan  f.  Jennes,  43  Vt.  183; 
5  Am.  Rep.  270 ;  Hayden  v.  Merrill,  44  Vt.  336 ;  8  Am.  Rep.  372 ;  Elwell 
V.  Burnside,  44  Barb.  454;  Anderson  v.  Meredith,  3  Dev.  &  B.  199;  Farr 
V.  Smith,  9  Wend.  338;  Hyde  v.  Stone,  9  Cow.  230;  Harmon  t".  Gart- 
man,  Harper  430;  Shields  v.  Stark,  14  Ga.  429;  Fightmaster  V.  Beasley, 
7  J.  J.  Marsh.  410. 

8«  Bijam  v.  Bichford,    140  Mass.  31. 

"7  1  Washburn  on  Real  Prop.  601 ;  Twort  v.  Twort,  16  Ves.  128.  See 
Martin  V.  Knowlys,  8  T.  R.  146;  Wilbraham  v.  Snow,  2  Saund.  47. 
The  conflicting  rights  of  co-tenants  as  to  a  tract  of  land  will  not 
be  adjudicated,  where  they  are  none  of  them  in  possession,  and  the 
party  in  possession  is  not  a  party  to  the  suit.  Wetherington  v.  Wil- 
liams (N.  C.  1904),  46  S.  E.  Rep.  728. 

«8Doane  v.  Badger,  12  Mass.  65;  Coffin  v.  Heath,  6  Mete.  79;  Calvert 
V.  Aldrieh,  99  Mass.  78;  Mumford  v.  Brown,  6  Cow.  475;  Scott  v.  Guern- 
sey, 48  N.  Y.  106;  Taylor  v.  Baldwin,  10  Barb.  582;  Crest  v.  Jacks,  3 
Watts  239;  Dech's  Appeal,  57  Pa.  St.  472;  Ottumwa  Lodge  V.  Lewis, 
34  Iowa  67 ;  Pickering  v.  Pickering,  63  N.  H.  468 ;  Ford  v.  Knapp,  102 
N.  Y.  135,  55  Am.  Rep.  782;  Davis  V.  Sawyer  (N.  H.),  20  Atl.  Rep. 
100;  Rico  Reduction,  etc.,  Co.  v.  Musgrave  (Colo.),  23  Pac.  Rep.  458; 
Newmann  v.  Dreifurst,  9  Colo.  228;  Johnson  v.  Blair,  126  Pa.  St.  426; 

251 


§  191         INCIDENTS  OP  ALL  JOINT  ESTATES.      [PART  I. 

held  in  case  of  partition  and  sale  he  may  in  any  case  be  re- 
imbursed out  of  the  proceeds  of  sale  the  fair  value  of  s\ich 
improvements.""  Whenever  the  claim  for  contribution  to- 
wards the  expense  of  makinq:  the  improvements  is  recognized, 
it  is  held  to  constitute  an  equitable  lien  on  the  undivided  in- 
terest of  the  indebted  co-tenant.^° 

§  191.  Liability  of  one  co-tenant  for  rents  and  profits. —  If 
one  tenant  cuts  timber  upon  the  land,  and  sells  it,  the  co- 
tenants  are  entitled  to  their  share  of  the  money  so  received. 
And  so  also  would  he  be  liable  to  account  for  rents,  received 
by  him  from  the  tenant  of  the  land,  over  and  above  his  share.^^ 

Alden  v.  Carleton,  81  Me.  358;  Redfield  v.  Gleason,  61  Vt.  220;  Alleman 
V.  Hawley,  117  Ind.  532. 

69 Moore  v.  Thorp   (R.  I.),  19  Atl.  Rep.  321. 

70  Curtis  V.  Poland,  66  Tex.  511.  A  co-tenant  who  pays  more  than 
his  share  of  an  incumbrance  is  entitled  to  contribution  therefor.  Grove 
f.  Grove  (Va.  1902),  42  S.  E.  Rep.  312;  Ballou  V.  Ballou,  94  Va.  350, 
26  S.  E.  Rep.  840,  64  Am.  St.  Rep.  733;  Downey  V.  Strause,  43  S.  E. 
Rep.  348. 

71  Miller  v.  Miller,  7  Pick.  133;  Peck  v.  Carpenter,  7  Gray  283; 
Dickinson  r.  Williams,  11  Cush.  258;  Gowen  v.  Shaw,  40  Me.  56;  Web- 
ster V.  Calef,  47  N.  H.  289;  Hayden  v.  Merrill,  44  Vt.  336,  8  Am.  Rep. 
372;  Izard  r.  Bodine,  11  N.  J.  Eq.  403;  Israel  V.  Israel,  30  Md.  126; 
Holmes  v.  Best,  58  Vt.  547;  Minter  v.  Durham,  130  Reg.  473;  Alney 
V.  Daniels,  15  R.  I.  312;  Bush  v.  Gamble,  127  Pa.  St.  43;  Fulmer's 
Appeal,  128  Pa.  St.  24;  HuflF  n.  McDonald,  22  Ga.  131;  Pico  v.  Columbet, 
12  Cal.  414.  But  replevin  would  not  lie  between  two  co-tenants.  Boh- 
len  V.  Arthurs,  115  U.  S.  482.  One  co-tenant  may  cut  the  grass, 
growing  on  the  common  estate,  sell  it,  and  apply  the  profits  to  his 
own  use.  Brown  v.  Wellington,  106  Mass.  318,  8  Am  Rep.  130.  See 
Kean  v.  Connely,  25  Minn.  222,  33  Am.  Rep.  458.  And  contra,  Le  Bar- 
ren t\  Babcock,  46  Hun  598.  Although  ignorant  of  the  title  of  his 
co-tenants,  a  tenant  in  common,  who  is  in  possession,  must  account 
for  rents  and  profits.  Eighmer  v.  Thayer  (Mich.  1904),  98  N.  W.  Rep. 
734;  Stephens  v.  Hewitt  (Tex.  1904),  77  S.  W.  Rep.  229.  A  tenant 
in  common  is  only  liable  for  the  excess  of  rents,  over  and  above  what 
he  was  legally  entitled  to,  as  his  share  of  the  common  property.  Ben- 
nett r.  Bennett  (Miss.  1904),  36  So.  Rep.  4.52;  Willes  v.  Loomis,  87 
N.  Y.  S.  1086,  94  App.  Div.  67.  In  an  accounting,  between  co-teRants, 
interest  should  be  pillowed  on  rents  and  profits  from  the  time  when 
they   should   be   paid   over,    with    a   reasonable   allowance   of   time   for 

252 


CH.    IX.]  INCIDENTS   OF    ALL   JOINT    ESTATES.    .  §    191 

But  in  order  that  a  co-tenant  may  be  held  personally  liable 
for  rent  through  his  own  use  and  occupation  of  the  land,  a 
special  agreement  to  that  effect  must  be  shown.  An  occu- 
pancy by  one  co-tenant  without  the  interference  of  the  others 
is  not  sufficient.  He  is  merely  exercising  his  right  of  owner- 
ship."- But  the  one  co-tenant  cannot  hold  exclusive  posses- 
sion of  the  estate  against  the  others,  and  if  he  attempts  it, 
ejectment  will  lie  against  the  tenant  in  possession,  the  judg- 
ment requiring  the  abandonment  of  exclusive  possession.^' 
And  he  is  then  liable  in  damages  for  the  past  exclusion  of  his 
co-tenant.^*  And  when  a  co-tenant  is  liable  for  use  and  oc- 
cupation, the  claim  is  personal,  and  is  not  assigned  with  the 
grant  of  the  claimant's  estate.'^' 

settlement.  Sieger  v.  Sieger,  209  Pa.  65,  58  Atl.  Rep.  140.  See  also, 
Hollahan  v.  Sowers,  11  111.  App.  263;  Heppe  f.  Sezepanski,  209  111.  88, 
70  N.  E.  Rep.  737. 

72  Sargent  v.  Parsons,  12  Mass.  149;  Calhoun  v.  Curtis,  4  Mete.  413; 
Scots  V.  Guernsey,  60  Barb.  163 ;  Kline  v.  Jacobs,  68  Pa.  St.  57 ;  Keisel 
V.  Earnest,  21  Pa.  St.  90;  Israel  V.  Israel,  30  Md.  120;  McMahon  v. 
Burchell,  2  Phil.  Eq.  134;  Lyles  V.  Lyles,  1  Hill  Ch.  85;  Crow  v.  Mark, 
52  111.  332;  Everts  t".  Beach,  31  Mich.  136,  18  Am.  Rep.  169;  Pico  V. 
Columbet,  12  Cal.  414.  But  see  contra  Holt  V.  Robertson,  McMull.  475; 
Thompson  r.  Bostick.  lb.  75;  Hayden  v.  Merrill,  44  Vt.  430,  8  Am.  Rep. 
372;  Belknap  v.  Belknap,  77  Iowa  71;  Sailer  v.  Sailer,  41  N.  J.  Eq. 
398;  Boley  v.  Barutis,  24  111.  App.  515;  s.  c.  120  111.  192;  Almy  V. 
Daniels,  15  R.  I.  312.  And  likewise,  if  one  co-tenant  plants  a  crop 
upon  the  common  estate,  it  belongs  to  him  exclusively,  and  his  co-tenant 
would  be  liable  as  a  trespasser,  if  he  appropriated  it  to  himself. 
Calhoun  f.  Curtis,  4  Mete.  413;  Bird  f.  Bird,  15  Fla.  424,  21  Am.  Rep. 
296.  See  Kean  v.  Connely,  25  Minn.  222,  33  Am.  Rep.  458;  Berry  V. 
Whidden,  62  N.  H.  473;  Le  Barren  V.  Babcock,  46  Hun  588. 

73  Jones  f.  De  Lassus,  84  Mo.  54;  Gilman  v.  Oilman,  111  N.  Y.  265. 

1*  Stephenson  V.  Cotter,  5  X.  Y.  S.  749 ;  Bowen  r.  Swander  ( Ind. ) , 
22  N.  E.  Rep.  725,   121   Ind.   164. 

75  1  Washburn  on  Real  Prop.  663;  Hannan  r.  Osborn,  44  Paige  Ch. 
33.  The  liability  of  a  co-tenant  to  the  others  for  his  use  and  occupation 
of  the  land  is  in  some  of  the  States  regulated  by  statute.  Woolley  r. 
Schrader,  116  111.  29.  Tenants  in  common  may  establish  the  relation 
of  landlord  and  tenant  as  between  themselves.  Smith  v.  Smith,  98  Me. 
597.  57  Atl.  Rep.  999.  A  co-tenant  who  fails  to  account  for  rents  and 
profits    cannot    claim    contribution    for    improvements    made    by    him. 

253 


§  191         INCIDENTS  OF  ALL  JOINT  ESTATES.      [PART  I. 

Eiphmer  v.  Thayer  (Mich.  1004),  98  N.  W.  Rep.  734;  Croesdale  v. 
Von  Borgoburg,  206  Pa.  15,  55  Atl.  Rep.  770.  Generally,  in  co-tenancies 
in  mines,  the  owner  of  the  larger  interest  is  entitled  to  work  the  mine, 
accounting  to  the  co-owners  for  their  share  of  the  profit.  Sweeney 
r.  Hanley,  126  Fed.  Rep.  97;  Binswanger  v.  Henninger,  1  Alaska  509; 
\Miite,  Mines  &  Min.  Rem.,  Sec.  24.  For  action  for  accounting  of 
rents  and  profits  from  mine  held  by  co-tenants,  see,  Gregg  v.  Roaring 
Spring  Co.,  97  Mo.  App.  44,  70  S.  W.  Rep,  920.  For  accounting  be- 
tween co-tenants  of  mines,  generally,  see.  White,  Mines  &,  Min.  Rem., 
Sees.  503,  512. 
254 


SECTION  III. 

PARTITION. 

Section.  192,  Definition  of  partition. 

193.  Voluntary  partition. 

194.  Involuntary  or  compulsory  partition. 

195.  Who  can  maintain  action  for  partition. 

196.  Partial   partition. 

197.  Manner  of  allotment. 

198.  Relief  incidental  to  partition. 

199.  Effect  of  partition. 

§  192.  Definition  of  partition. —  Partition  is  the  act  of  di- 
viding up  the  joint  estate  into  estates  in  severalty  among 
the  co-tenants,  in  the  proportion  of  their  undivided  shares  in 
the  joint  estate.  This  can  be  done  with  any  joint  estate  in 
possession,  except  estates  in  entirety.''" 

§  193.  Voluntary  partition. —  As  co-tenants  of  joint  estates 
generally  have  the  unrestricted  power  of  aliening  their  shares 
in  the  common  estate,  it  is  possible  for  them  to  make  partition 
of  the  estate  by  mutual  conveyances  to  each  other  of  their 
share  in  different  parts  of  the  estate ;  that  is,  by  dividing  up 

"Bennett  v.  Child,  19  Wis.  364;  1  Washburn  on  Real  Prop.  673. 
Where  there  is  an  express  condition  against  partition,  partition  cannot 
be  had,  for  an  attempt  at  it  would  result  in  a  forfeiture  of  the  estate. 
Hunt  V.  Wright,  47  N.  H.  399.  See  Fisher  v.  Demerson,  3  Mete.  546. 
But  the  condition  must  be  express,  and  clearly  manifest  an  intention  to 
prevent  partition.  Spaulding  v.  Woodward,  53  N.  H.  573,  16  Am.  Rep. 
392.  But  apart  from  these  exceptions,  the  general  rule  is,  that  parti- 
tion may  be  had  in  all  joint-estates,  joint-tenancies,  as  well  as  tenan- 
cies in  common.  Coleman  r.  Coleman,  19  Pa.  St.  100;  Holmes  V. 
Holmes,  2  Jones  Eq.  334;  Witherspoon  v.  Dunlap,  Harper  390;  Higgin- 
bottom  V.  Short,  25  Miss.  160. 

255 


§    193  PARTITION.  [P.VBT   I. 

the  estate  into  several  parcels,  and  making  conveyance  of  one 
parcel  to  each,  all  joining  in  the  deed  or  deeds,  a  partition 
■can  bo  made.  But  in  order  to  be  effectual,  the  partition  must 
be  done  by  mutual  deeds.  If  all  do  not  join  in  the  execution 
of  the  nuitual  deed,  it  is  a  nullity  and  those  who  signed  are 
not  thereby  prevented  from  subsequently  bringing  the  action 
for  partition."  But  if  it  is  a  mutual  deed,  it  cannot  subse- 
quently be  revoked.^^  Parol  partition  would  be  void  under 
the  Statute  of  Frauds.^"  Tenants  in  coparcenary  may  make 
an  effectual  partition  by  parol,  if  it  is  followed  by  actual  pos- 
sion  in  severalty,  at  least  in  those  States  where  tenancy  in  co- 
parcenary is  recognized.^"  And  so,  also,  apparently  will  a 
parol  partition  be  valid  between  joint  devisees,  especially 
where  the  devisor  directs  the  division.®^  But  although  a  parol 
partition  will  not  be  effectual  and  binding  upon  the  parties, 
yet  if  it  is  followed  by  actual  possession,  such  partition  will 
give  to  the  parties  the  rights  and  incidents  of  exclusive  pos- 
session, as  long  as  the  exclusive  possession  is  permitted  to  con- 
tinue. And  this  exclusive  possession,  if  continued  for  a  suffi- 
cient length  of  time,  will  ripen  into  an  indefeasible  title  un- 
der the  Statute  of  Limitations.*^     So.  also,  if  one  of  the  co-ten- 

1-  Paterson  v.  Martin,  33  W.  Va.  494. 

78  Walton  r.  Amblor   (Neb.),  45  N.  W.  Rep.  931. 

"9  Gardiner  Man.  Co.  V.  Heald,  5  Me.  384;  Dow  v.  Jewell,  18  N.  H. 
354;  Gratts  V.  Gratts,  4  Ralle  411;  Coles  v.  Wooding,  2  Patt.  jr.  &  H. 
189;  Slice  r.  Derrick,  2  Rich.  627;  Piatt  v.  Hubbell,  5  Ohio  243; 
Manley  r.  Pettee,  38  111.  128;  Wildey  v.  Barney's  Lessee,  31  Miss.  644. 
But  see  contra,  Aycock  v.  Kimbrough,  71  Tex.  330;  Tate  v.  Foshee,  117 
Ind.  322;  Smith  v.  Cole,  39  Hun  248. 

so  1  Washburn  en  Real  Prop.  676. 

81  Kncvals  v.  Prince,  10  N.  Y.  S.  676. 

82Keay  r.  Goodwin,  16  Mess.   1;  Jackson  v.  Harder,  4  Johns.  202 
Ccrljin  r.  Jackson,  14  Wend.  619;  Gregg  v.  Blackmore,  10  Watts  192 
Lloyd  V.  Gordon,  2  Har.  &  McH.  254;   Slice  v.  Derrick,  2   Rich.  627 
Drane  v.  Gregory,  3  B.  Mon.  619;  Wright  v.  Jones,  105  Ind.  17;  Brazee 
r.   .Schofield.  2   Wash.  200;    Campbell  v.  Laclede   Gaslight  Co.,  84  Mo. 
352;    McKnight  v.  Bell    (Pa.),    19   Atl.   Rep.    1036;    Rountree  v.   Lane 
(S.  C),  10  S.  E.  Rep.  941;  Patterson  V  Martin,  33  W.  Va.  404;  Ham- 
ilton r,  Phillips  (Ga.),  9  S.  E.  Rep.  606.     In  Manley  v.  Pettee,  38  111. 
256 


CH.    IX.]  PARTITION.  §    194 

ants,  relying  upon  the  parol  partition,  enters  into  possession, 
and  makes  extensive  improvements  on  the  part  allotted  to 
him,  the  court,  in  a  subsequent  action  for  partition,  in  the  ex- 
ercise of  a  wise  discretion,  may,  and  probably  would,  simply 
confirm  the  former  parol  partition,  instead  of  making  any 
different  one." 

§  194.  Involnntary  or  comptilsory  partition. —  At  common 
law,  no  suit  for  partition  of  a  joint  estate  could  have  been 
sustained  against  the  will  of  any  one  of  the  co-tenants,  except 
in  the  case  of  an  estate  in  coparcenary,  and  it  was  not  until 
the  reign  of  Henry  VIII  that  any  legal  action  was  provided 
for  compulsory  partition.  Statutes  were  then  passed  creating 
the  common-law  writ  of  partition.**  Similar  statutes  have 
been  passed  in  the  different  States.®'^  But  apart  from  the 
common-law  statutory  remedies,  the  court  of  chancery  has, 
since  the  reign  of  Elizabeth,  maintained  jurisdiction  for  par- 
tition, and  this  is  now  the  only  remedy  in  England,  unless  re- 
cent statutes  have  been  passed;  it  exists  also  in  most,  if  not 
all,  of  the  States.*"  The  court  of  chancery  would  after  ex- 
128,  a  parol  partition  followed  by  occupation^  has  been  held  to  be 
effectual  against  creditors  and  purchasers.  See  AUdays  v.  Whittaker, 
66  Tex.  669;  Aycock  r.  Kimbrough,  71  Tex.  330.  A  parol  partition  of 
land,  in  Missouri,  by  co-tenants,  where  each  takes  possession  of  his 
share  and  occupies  it  or  uses  it,  is  binding  on  the  parties.  Edwards  v. 
Latimer  (1904),  82  S.  W.  Rep.  109.  See  also,  Bonner  v.  Bonner 
(Tex.  1904),  78  S.  W.  Rep.  535;  Mylin  v.  King  (Ala.  1904),  35  So, 
Rep.  998. 

83  Wood  V.  Fleet,  36  N.  Y.  501. 

84  1  Washburn  on  Real  Prop.  651,  676;  Williams  on  Real  Prop.   103. 

85  The  statutes  vary  in  detail  and  cannot  be  given  here.  For  an 
excellent  compendium  of  these  statutes,  see  Mr.  Washburn's  note,  1 
Washburn  on  Real  Prop.  690,  note;  4  Kent's  Com.  5G1.  See  also,  gen- 
erally, in  reference  to  the  common-law  remedy.  Cook  v.  Allen,  2  Mass. 
402 ;  Champion  v.  Spence,  1  Root  147 ;  McKee  v.  Straub,  2  Binn.  1 ; 
Witherspoon  V.  Dunlap,  1  McCord  546. 

««  1  Washburn  on  Real  Prop.  677,  678 ;  Williams  on  Real  Prop.  103 ; 
Story's  Eq.  Jur.,  Sec.  647;  Moore  t?.  Moore,  47  N.  Y.  469;  Bailey  v. 
Sissan.  1  R.  I.  233;  Whitton  v.  Whitton,  36  N.  H.  326.  But  chancer^ 
did  not  entertain  a  suit  for  partition  if  there  was  a  dispute  concerning 

W  257 


§   195  PARTITION.  [part  I. 

amination  by  the  master,  allot  particular  parcels  to  each  ten- 
ant, and  make  its  decree  effectual  by  compelling  the  parties 
to  execute  mutual  deeds  of  conveyance.  In  the  proceedings 
at  common  law,  the  judgment  of  the  court  vested  the  titles  in 
severalty  in  each  party,  without  the  aid  of  the  mutual  con- 
veyance.*^ The  action  for  partition,  whether  it  be  in  law  or 
equity,  is  an  action  in  rem,  and  must  be  brought  in  the  county 
and  State  in  which  the  land  lies."* 

§  195.  Who  can  maintain  action  for  partition. —  Under  the 
statute  31  Henry  VIII,  only  tenants  of  a  freehold  estate  of 
inheritance  were  empowered  to  compel  a  partition;  but  by 
statute  32  Henry  VIII,  the  right  was  extended  to  tenants  for 
life  and  for  years,  but  partition  between  them  would  not  affect 
the  rights  of  reversioners.  The  general  rule  now  is,  that  par- 
tition might  be  had  between  the  co-tenants  of  any  joint  estate 
except  estates  in  entirety,  who  have  the  seisin  and  immediate 
right  of  possession.*^     But  a  mortgagee  of  an  undivided  share 

the  title.  4  Kent's  Com.  665;  1  Washburn  on  Real  Prop.  678,  679; 
MeCall's  Lessee  i".  Carpenter,  18  How.  (U.  S.)  297;  Hosford  V.  Merriam, 
5  Barb.  51;  Obert  f.  Obert,  10  N.  J.  Eq.  98;  Tabler  v.  Wiseman,  2 
Ohio  St.  207;  Shearer  v.  Winston,  33  Miss.  140.  Under  the  Illinois 
statute  it  is  essential  for  the  plaintiff  in  partition  to  allege  and  prove 
that  he  is  the  owner  of  an  undivided  interest  in  the  land,  with  the 
defendants  in  the  suit.  McConnell  v.  Peirce,  210  111.  627,  71  N.  E.  Rep. 
622.  See  also,  Shipley  v.  Institute  (Md.  1904),  58  Atl.  Rep.  200;  Keith 
r.  Carver   (Minn.  1904),  100  N.  W.  Rep.  366. 

«T  1  Washburn  on  Real  Prop.  678 ;  Story's  Eq.  Jur.,  Sees.  652,  654. 
But  now  in  most  of  the  States  the  decree  in  equity  has  the  same  effect 
as  a  judgment  at  law.  Hassett  V.  Ridgley,  49  111.  201;  Hoffman  V. 
Stigers,  28  Iowa  302. 

88  Bonner,  Petitioner,  4  Mass.  122 ;  Peabody  v.  Minot,  24  Pick.  333 ; 
Corwithe  v.  GrifBing,  21  Barb.  9;  Brown  v.  McMullen,  1  Nott  &  M.  252. 

89  1  Washburn  on  Real  Prop.  680;  Co.  Lit.  167;  Austin  v.  R.  R.,  45 
Vt.  215;  Riker  r.  Darkey,  4  Edw.  Ch.  668;  Brownwell  v.  Brownwell,  19 
Wend.  367;  Lamdert  v.  Blumenthal,  26  Mo.  471;  Tabler  v.  Wiseman,  2 
Ohio  St.  207;  Barker  v.  Jones,  62  N.  H.  497;  McGowan  v.  Reed  (S.  C), 
11  S.  E.  Rep.  685;  West  v.  West  (Ala.),  7  So.  Rep.  830;  Hendershot  V. 
I^wrence  (N.  J.),  18  Atl.  Rep.  774;  Chastain  v.  Higdon,  84  Ga.  Ill; 
Welch  V.  Agar,  84  Ga.  683;  Wateon  v.  Sutro  (Cal.),  24  Pac.  Rep.  172, 

258 


CH.    IX.]  PARTITION.  |    195 

in  a  joint  estate  cannot  maintain  an  action  for  partition,  even 
under  the  common-law  theory  of  the  character  of  a  mort- 
gagee's interest.®"  A  difference  in  the  duration  of  the  estates 
of  the  co-tenants  will  not  interfere  with  the  right  of  parti- 
tion.®^ Partition,  therefore,  does  not  lie  between  tenants  who 
are  disseised  either  by  a  stranger  or  one  of  their  own  num- 
ber,®^ or  who  are  tenants  in  remainder  or  reversion.®^     The 

(an  equitable  title).  Rents  are  but  personalty  and  are  not  the  subject 
of  partition.  Thomas  v.  Hamil,  106  111.  App.  524.  One  having  neither 
the  actual  or  constructive  possession  cannot,  generally,  maintain  parti- 
tion. Mersereau  v.  Camp  (1904),  86  N.  Y.  S.  1141,  92  App.  Div.  616; 
Adams  v.  Hopkins,  144  Cal.  19;  77  Pac.  Rep.  712.  There  can,  generally, 
be  no  partition  between  life  tenant  and  remaindermen.  Turner  V. 
Barraud  (Va.  1904),  46  S.  E.  Rep.  318;  Smith  v.  Runnels,  97  Iowa 
55,  65  N.  W.  Rep.  1002;  Love  v.  Blauw,  61  Kan.  496,  59  Pac.  Rep.  1059, 
48  L.  R.  A.  257,  78  Am.  S.  Rep.  334;  Seiders  v.  Giles,  141  Pa.  St.  Q3, 
21  Atl.  Rep.  514.  Where  a  life-tenant  consents  to  a  partition  in  kind  by 
remaindermen,  or  a  sale  of  the  property,  he  cannot  afterwards  question 
the  jurisdiction  of  the  court.  Brillhard  v.  Misch  (Md.  1904),  58  Atl. 
Rep.  28.  In  Missouri,  the  owner  of  a  contingent  remainder  is  held 
entitled  to  partition.  Reinders  v.  Koppelman,  68  Mo.  482;  Godnian  v. 
Simmons,  113  Mo.  130. 

ooBannon  v.  Comegys,   69  Md.  411. 

01  Allen  f.  Libbey,  140  Mass.  82;  Meyer  V.  Schurbruck,  37  La.  An. 
373;  Tilton  V.  Vail,  53  Hun  324. 

92  Bonneck  v.  Kennebock  Purchase,  7  M.-.ss.  475 ;  Marshall  v.  Crcliore, 
13  Mete.  462;  Hunnewell  f.  Taylor,  6  Cuah.  472;  Brownell  v.  Brownell, 
19  Wend.  367;  Bradshaw  V.  Callaghan,  8  Johng.  558;  Florence  r.  Hop- 
kins, 46  N.  Y.  184;  Clapp  v.  Bromagham,  9  Cow.  530;  Stevens  r.  Enders, 
1  Green  (N.  J.),  271;  Brock  f.  Eastman,  28  Vt.  658;  Windsor  r.  Simp- 
kins  (Or.),  23  Pac.  Rep.  669;  Criscoe  V.  Hambrick,  47  Ark.  235;  Fenton 
f.  Steere.  76  Mich.  405;  Rich  r.  Bray,  37  Fed.  273;  Welch's  Appeal,. 
126  Pa.  St.  297.  But  see  Holloway  v.  Holloway,  97  Mo.  628.  Partition- 
as  between  co-tenants  is  never  barred  by  adverse  possession,  short  of 
the  statutory  period.     Adams  v.  Hopkfns,  144  Cal.  19,  77  Pac.  Rep.  712.  . 

»8  Hodgkinson,  Petitioner,  12  Pick.  374;  Hunnewell  v.  Taylor,  6  Cusb. 
472;  Nichols  f.  Nichols.  28  Vt.  228;  Zeigler  v.  Grim.  6  Watts  106; 
Swanson  v.  Calhoun,  81  Ga.  777;  Wood  v.  Sugg,  91  N.  C.  93,  49  Am. 
Rep.  639;  Osborne  r.  Mull,  91  N.  C.  203;  Eberts  v.  Fisher,  54  Mich.  294; 
Bragg  V.  Lyon,  93  N.  C.  151;  Moore  v.  Shannon,  6  Mackay  157;  Appeal 
of  Clarke  (Pa.),  23  Atl.  Rep.  890.  In  New  York  and  Illinois,  there 
may  be  a  partition  of  a  vested  remainder.     Blakely  v.  Colder,  15  N.  Y.., 

25» 


§    195  PARTITION.  [part   I. 

consent  of  the  co-tenant  or  of  any  number  of  them  is  not 
required  in  order  to  secure  a  partition.  Any  one  co-tenant 
may  compel  a  partition  by  making  the  other  co-tenants  de- 
fendants."* Demand  need  not  be  made  before  bringing  the 
snit.'"*  And  the  right  of  partition  cannot  be  taken  away 
or  suspended  by  a  condition  against  alienation.*®  Partition 
will  not  be  decreed  where  the  defendants  to  the  suit  dispute 
the  title  of  the  plaintiff."  If  the  parties  defendant,  who 
dispute  the  title  of  the  others,  be  dismissed  from  the  suit,  the 
partition  may  be  decreed  as  to  the  others.  A  dispute  over  a 
title  can  not  be  settled  in  a  partition  suit."*  Unsettled  claims 
or  incumbrances  upon  the  land,  or  upon  the  share  of  one  or 
more  of  the  co-tenants,  in  the  hands  of  strangers, — such  as 
an  outstanding  claim  of  dower,  or  curtesy,  or  a  mortgage 
of  the  premises,  where  the  mortgagee  is  not  in  possession, — 
will  not  prevent  the  partition.  But  in  order  that  the  decree 
in  partition  shall  bind  the  holders  of  these  claims  or  in- 
cumbrances, existing  at  the  time  that  the  suit  for  partition  is 
in.stituted,  they  must  be  made  parties,  in  the  absence  of  a  stat- 
ute to  the  contrary."*  And  if  there  is  any  owelty  coming  to  the 

617:  Hilliard  v.  Scoville,  52  111.  449;  Hill  v.  Reno,  112  111.  154;  54 
Am.  Rop.  222.  See,  also,  Smalley  v.  Isaacson,  40  Minn.  450;  Preston 
V.    Brant,    196   Me.   556. 

94  Sample  v.  Sample,  34  Kan.  73 ;  Rohn  v.  Harris,  130  111.  525. 

9''  Willard  v.  Willard,  6  Mackey  559. 

9«  Whitney  v.  Kindall,  63  N.  H.  200. 

97  Peterson  v.  Fowler,  73  Tex.  254;  Carrigan  v.  Evans,  31  S.  E.  Rep. 
262;  Fenton  V.  Steere,  76  Mich.  405;  Rich  v.  Bray,  37  Fed.  Rep.  273. 
The  character  of  the  plaintiff's  title  may  be  shown  by  the  defendant  to 
be  incapable  of  supporting  partition.  Thibodeaux  r.  Thibodeaux,  112 
La.  906.  36  So.  Rep.  800.  Where  there  are  conflicting  claims  of  title  the 
one  holding  the  legal  title  must  generally  prevail.  Lee  v.  Wysong 
(1904),  128  Fed.  Rep.  833,  63  C.  C.  A.  483. 

»«  Peterson  v.  Fowler,  73  Tex.  524;  Carrigan  v.  Evans,  31  S.  C.  262; 
Beebe  V.  Louisville,  etc.,  R.  R.  Co.,  39  Fed.  481.  But  see  Hay's  Appeal, 
123  Pa.  St.  110;  Simmes'  Heirs  r.  Simmes  (Ky.),  11  S.  W.  Rep.  665; 
^est  r.  Sanders,  31  S.  C.  602. 

»»Call  r.  Barker,  12  Me.  320;  Pur^'is  v.  Wilson,  5  Jones  L.  22;  Brad- 
Bhaw  r.  Callaghan,  8  Johns.  558 ;  Burhaus,  2  Barb.  Ch.  398 ;  Taylor  V. 
260 


en.    IX,]  PARTITION.  §    195 

mortgagor  co-tenant,  it  must  be  paid  to  the  mortgagees.^  If 
claimants  upon  the  shares  of  individual  co-tenants  have  been 
properly  brought  before  the  court,  the  decree  in  partition  will 
transfer  the  lien  of  the  incumbrance  to  the  part  allotted  to 
the  tenant,  whose  share  in  the  joint  estate  was  incumbered.- 
The  court  may  always,  and  by  statute  in  some  of  the  States, 
is  obliged  to,  stay  the  decree  in  partition  of  any  intestate's 
lands  among  the  heirs,  as  long  as  the  claim  of  the  intestate's 
creditors  have  not  been  duly  provided  for.^  If  the  interest 
in  the  co-tenant's  share  is  acquired  after  the  commencement 
of  the  suit,  the  claimant  takes  the  interest  subject  to  the 
decree  in  partition,  and  need  not  be  made  a  party.  But  all 
who  were  co-tenants  at  the  time  of  bringing  the  suit,  must 
be  joined  as  parties.*     If,  however,  trustees,   in  whom  the 

Blake,  109  Mass.  513;  Colton  v.  Smith,  11  Pick.  311;  Kilgour  v.  Craw- 
ford, 51  111.  249;  De  La  Vega  V.  League,  64  Tex.  205;  Morse  V.  Stock- 
man, 65  Wis.  36;  Childs  v.  Hayman,  72  Ga.  7!)1;  Simpson  V.  Stranghen 
(N.  J.),  19  Atl.  Rep.  6G7;  Judgment  Creditors:  Owens  v.  Owens,  25 
S.  C.  155;  Barclay  v.  Kerr,  110  Pa.  St.  130;  Widow's  Dower,  Appeal  of 
Black,  130  Pa.  St.  516;  Claim  of  Curtesy:  Grand  Fomer,  etc.,  Co.  V. 
Gill,  111  111.  514;  Stark  v.  Carroll,  66  Tex.  393;  McKinney  v.  Moore, 
73  Tex.  470;  Fales  v.  Fales,  148  Mass.  42. 

1  Green  v.  Arnold,  II  R.  I.  364 ;  23  Am,  Rep.  466. 

2  Washburn  on  Real  Prop..  682.  In  partition  between  the  heirs  of  a 
decedent,  the  general  creditors  of  decedent  and  the  administrator  are 
not,  generally,  proper  parties  to  the  suit.  Sheehan  v.  Allen,  67  Kan. 
712,  74  Pac.  Rep.  245;  Speer  v.  Speer,  14  N.  J.  Eq.  240;  Lyon  V. 
Register,  36  Fla.  273,  18  So.  Rep.  589;  Wood  v.  Bryant,  68  Miss.  198,  8 
So.  Rep.  518;  Garrison  v.  Cox,  99  N.  C.  478,  6  S.  E.  Rep.  124; 
Waldron  v.  Harvey  (W.  Va.  1904),  46  S.  E.  Rep.  60.  But  see,  contra, 
McEvoy  V.  Leonard,  89  Ala.  455,  8  So.  Rep.  40;  Green  v.  Brown,  146 
Ind.  1,  44  N.  E.  Rep.  805 ;  Budde  v.  Rebenack,  137^  Mo.  179,  38  S.  W. 
Rep.  910;  Bender  v.  Terwilliger,  166  N.  Y.  590,  59  N.  E.  Rep.  1118; 
EiD  parte  Worley,  49  S.   C  41,  26  S.  E.  Rep.  949. 

3  Alexander  r.  Alexander,  26  Neb.  68;  Hendry  v.  Hollingdrake  (R. 
I.),   17  Atl.  Rep.  50. 

*  Smith  V.  Brown,  66  Tex.  543;  Jordan  V.  McMilty  (Colo.),  23  Pac. 
Rep.  460;  Grand  v.  Fomer,  etc.,  Co.  v.  Gill,  111  111.  541;  Stark  v. 
Carroll,  66  Tex.  393;  McKinney  t;.  Moore,  73  Tex.  470;  Fales  v.  Fales, 
148  Mass.  42.     But  see  Coombs  v.  Unknown  Persons,  82  Me.  326. 

261 


5    197  PARTITION.  [part   I, 

legal  title  of  an  estate  in  common  is  vested,  are  properly  made 
parties,  it  will  not  be  necessary  to  make  the  cestuis  que  trust 
parties.' 

§  196.  Partial  partition. —  Partition  of  a  part  of  the  joint 
estate  cannot  be  asked  for.  The  entire  estate  must  be  brought 
in  for  partition ;  but  two  or  more  of  the  co-tenants  may  ask 
for  a  decree  setting  out  their  shares  in  common,  and  apart 
from  the  others."  This  is  likewise  the  rule  where  the  prop- 
erty held  as  a  joint  estate  consists  of  two  or  more  parcels.  If 
the  relations  of  the  parties  are  such  that  their  rights  cannot 
be  adjusted,  except  by  a  partition  of  the  entire  property,  the 
whole  of  it  must  be  included  in  the  decree.^ 

§  197.  Manner  of  allotment. —  Commissioners  are  generally 
appointed  by  the  court,  whose  duty  it  is  to  ascertain  the  best 
mode  of  dividing  up  the  estate  among  the  several  tenants. 
And  in  performing  this  duty,  they  are  to  be  guided  by  the 
circumstances  of  each  case.  If  there  are  several  lots  or  par- 
cels of  land,  one  parcel  may  be  given  to  each,  or,  if  it  is  a 
single  tract,  it  is  divided  up,  if  possible,  into  equal  parcels; 
but  if  in  either  case  an  equal  division  is  impossible,  the  com- 
missioner may  direct  the  payment  of  a  sura  of  money,  called 
owelty  of  partition,  in  order  to  equalize  the  partition.*     But 

5  Railsback  v.  Lovejoy,  116  111.  442.  But  trustees  are  not  necessary 
parties  to  a  suit  for  partition  between  the  beneficiaries.  Welch  v. 
Agar,  84  Ga.  583.  Mineral  rights  in  land,  being  an  estate  in  freehold, 
are  the  subject  of  partition.  McConnell  v.  Pierce  (1904),  210  111.  627, 
71  N.  E.  Rep.  622;  Ames  v.  Ames,  160  111.  599,  43  N.  E.  Rep.  592; 
Hughes  V.  Devlin,  23  Cal.  502;  White  Mines  &  Min.  Rem.,  Sec.  589, 
et  sub. 

«  Smith  r.  Brown,  66  Tex.  543 ;  1  Washburn  on  Real  Prop.  679 ;  Bige- 
low  V.  Littlefield,  52  Me.  24;  Clark  v.  Parker,  106  Mass.  554;  Colton  v. 
Smith,  11  Pick.  511;  Arms  v.  Lyman,  5  Pick.  210;  Duncan  v.  Sylvester, 
16  Me.  388. 

7  Barnes  v.  Lynch   (Mass),  24  N.  E.  Rep.  783. 

sRagar  v.  Wiswall,  10  Pick.  152;  Story's  Eq.  Jur.  654;  1  Washburn 
on  Real  Prop.  678;  Green  v.  Arnold,  11  R.  I.  364,  23  Am.  Rep.  466;  Dob- 
bin V.  Rex.  106  N.  C.  444;  Stannard  v.  Sperry,  56  Conn.  541;  Haines 
262 


CH,    IX.]  PARTITION.  §    197 

the  consent  of  the  tenant,  to  whom  the  larger  portion  is  al- 
lotted, to  that  mode  of  settlement  must  be  obtained,  in  order 
to  bind  him.  He  cannot  be  forced  to  pay  the  owelty  of  par- 
tition against  his  will.''  And  where  both  parties  want  the 
allotment  of  the  larger  share,  a  sale  should  be  ordered  of  the 
entire  property.^**  When  a  bond  for  owelty  is  given,  it  con- 
stitutes a  lien  upon  the  share  of  land  which  is  allotted  in 
partition  to  the  obligor.^^  A  court  of  equity  may  so  direct 
partition  that  the  tenant,  who  has  made  improvements  upon 
the  land,  may  get  the  benefit  of  them  even  where  the  partition 
is  made  by  a  sale  of  the  premises  and  a  distribution  of  the 
proceeds  of  sale.^^  If  the  estate  in  question  is  not  susceptible 
of  a  partition  without  destroying  the  value  of  the  property, 
as  where  it  is  a  mill,  a  wharf,  and  the  like,  the  property  will 
either  be  ordered  to  be  sold,  and  the  proceeds  of  sale  divided 
among  the  tenants  according  to  their  equities,  or  the  entire 
estate  will  be  vested  in  one,  who  will  then  be  required  to  pay 
to  the  others  their  share  in  money.  But  an  actual  partition 
is  more  favored,  and  will  be  ordered,  whenever  practicable. 

V.  Hewitt,  129  111.  347;  Koehler  v.  Klins,  128  111.  323;  Houston  v. 
Blythe,  71  Tex.  716.  See,  also,  Bank  v.  Stansberry  (La.  1903),  34  So. 
Rep.  452. 

»  Whitney  v.  Parker,  63  N.  H.  416. 

10  Corrothors  f.  Jolliffe,  32  W.  Va.  662. 

"Sniveley's  Appeal  (Pa.),  18  Atl.  Rep.  124,  129  Pa.  St.  250;  Burn- 
side  V.  Watkins,  30  S.  C.  459. 

i2Alleman  v.  Hawley,  117  Ind.  552;  Green  v.  Putnam,  1  Barb.  500; 
Wood  V.  Fleet,  36  N.  Y.  501;  Crafts  v.  Crafts,  13  Gray,  360;  Borah 
0.  Archers,  7  Dana,  177;  Buck  V.  Martin,  21  S.  C.  590;  5!^  Am.  Rep. 
702;  Lynch  V.  Lynch,  18  Neb.  586.  But  see,  contra,  Gourlev  v.  Wood- 
bury, 43  Vt.  89.  In  partition  between  co-tenants,  a  lien  for  rents  or  im- 
provements will  generally  be  decreed,  in  the  settlement  of  the  respective 
interests  of  the  co-owners.  Bennett  v.  Bennett  ( Miss.  1904 ) ,  36  So. 
Rep  452;  Walker  V.  Williams  (Miss.  1904),  36  So.  Rep.  450;  Willis 
V.  Loomis  (1904),  87  N.  Y.  S.  1086,  94  App.  Div.  67;  Porter  V.  Osman 
(Mich.  1904),  98  N.  W.  Rep.  859;  Ward  v.  Ward,  40  W.  Va.  61  J,  21 
S.  E.  Rep.  746,  29  L.  R.  A.  449,  52  Am.  St.  Rep.  911;  Donnor  v. 
Quartermas,  90  Ala.  164,  8  So.  Rep.  715,-24  Am.  St.  Rep.  778;  Col- 
lett  V.  Henderson,  80  N.  C.  337. 

263 


§    198  PARTITION.  [part   I. 

[f  partition  is  made  by  sale  between  tenants,  one  of  whom  is 
only  a  tenant  for  life,  such  co-tenant  becomes  entitled  only  t;) 
the  income  during  his  life  from  the  sum  of  money  allotted  to 
him  as  his  share  in  the  proceeds  of  sale.^' 

§  198.  Relief  incidental  to  partition. —  In  decrees  in  parti- 
tion, where  the  petition  is  so  framed  as  to  permit  the  ad- 
justment of  the  several  interests  and  claims  of  the  parties  to 
the  suit,  the  court,  as  an  incidental  right  of  the  party  entitled 
thereto,  will  take  into  consideration  the  reasonable  rents  and 
profits  that  have  been  received  by  the  party  or  parties  in  pos- 
session ;  will  make  a  proper  and  just  allowance  for  improve- 
ments and  repairs  made  upon  the  common  property  and  such 
charges  for  incumbrances  placed  upon  the  property  or  for  pay- 
ments and  advancements  made  upon  incumbrances,  as  will 
equalize  the  rights  of  the  different  parties  to  the  suit  and 

13  Exp.  Winstead,  92  N.  C.  703 ;  Miller  v.  Miller,  13  Pick.  237 ;  Adams 
V.  Briggs  Iron  Co.,  7  Cush.  3G1 ;  King  V.  Reed,  11  Gray,  490;  Wood  r. 
Little,  35  Me.  107;  Crowell  v.  Woodbury,  52  N.  H.  613;  Conant  t\ 
Smith,  1  Aik.  (Vt.)  67;  Hills  v.  Dey,  14  Wend.  204;  Belknap  v. 
Trimble,  3  Paige  Ch.  577;  Royston  v.  Royston,  13  Ga.  425;  David  r. 
David,  9  N.  Y.  S.  256;  Smith  v.  Upton  (Ky.),  13  S.  W.  Rep.  721; 
Foster  v.  Roche,  117  N.  Y.  462;  Allard  v.  Carledon,  64  N.  H.  24;  Wrenn 
V.  Gibson  (Ky.),  13  S.  W^  Rep.  766;  Bruhn  V.  Fireman's  Bldg.  Assn. 
(La.),  7  So.  Rep.  556;  Durriity  V.  Musacchia  (La.),  7  So.  Rep. 
555;  Vail  v.  Vail,  52  Hun,  520;  Corrothers  v.  JolliflFe,  32  W.  Va.  562; 
Tyler  v.  Jewell  (Ky.),  11  S.  W.  Rep.  25;  Rohn  V.  Harris,  130  111.  525. 
The  law  favors  partition  in  kind,  rather  than  a  sale  and  it  is  only 
when  the  land  cannot  be  divided  in  kind  that  a  sale  will  be  ordered. 
Kloss  V.  Wylezalek,  207  HI.  328,  69  N.  W.  Rep.  863;  Black  r.  Black, 
206  Pa.  St.  116,  55  Atl.  Rep.  847;  Waldron  v.  Harvey  (W.  Va.  1904), 
46  S.  E.  Rep.  603.  W^here  a  petition  for  partition  only  asks  for  a  Tpar- 
tition  in  kind,  a  sale  thereunder  is  void  and  confers  no  title.  Waldron 
V.  Harvey  (W,  Va.  1904),  46  S.  E.  Rep.  603.  Where  the  land  is  not 
of  a  uniform  value  or  character  it  is  proper  to  order  a  sale.  Carpenter 
V.  Coats,  183  Mo.  52,  81  S.  W.  Rep.  1089:  In  the  partition  of  mines 
and  mineral  property,  on  account  of  the  uncertainty  of  the  value  of 
Buch  property,  a  sale  is  usually  preferable  to  a  division  in  kind.  White. 
Mines  &,  Min.  Rem.,  Sec.  589,  et  sub. 

264 


en.    IX.]  PARTITION.  §    199 

adjust  their  equities,  according  to  their  respective  interests.^* 
The  interest  of  a  co-tenant  who  has  incumbered  the  property 
for  his  individual  benefit,  will  be  charged  with  such  incum- 
brance ;  '^  if  one  co-tenant  has  received  more  than  his  just 
share  of  the  rents  and  profits  his  interest  in  the  estate  may  be 
charged  with  the  excess  so  received,  apportioned  among  the 
interests  of  the  other  co-tenants ;  ^®  one  co-tenant  placing  bet- 
terments upon  the  property  is  entitled  to  have  the  interests 
of  the  other  tenants  charged  therewith  before  a  division  in 
kind  between  himself  and  the  other  tenants,^^  and  if  the 
parties  to  the  suit  are  not  tenants  in  common,  but  partners 
in  the  land,  it  is  proper  to  order  an  accounting  between  them 
of  the  value  of  the  rents  and  profits  received  by  each  and  tlii> 
value  of  the  use  and  occupation  that  each  has  had  of  the  com- 
mon property." 

§  199.  Effect  of  partition. —  Partition,  when  completed, 
vests  in  each  tenant  an  estate  in  severalty  in  the  part  or  par- 
cel allotted  to  him  by  agreement  of  the  parties,  or  by  the  de- 
cree of  the  court ;  and  the  parties  cease  to  be  co-tenants.  But 
if  the  partition  is  made  by  the  decree  of  a  court,  there  is 
a  sufficient  privity  of  estate  remaining  between  them,  as  to 
make  the  loss  by  one  tenant,  of  the  part  allotted  to  him, 
through  the  enforcement  of  a  superior  title,  a  burden  upon  all. 
In  compulsory  partition,  each  tenant  becomes  a  warrantor  of 
the  titles  of  the  others  to  the  extent  of  his  share.  And  if  one 
is  ousted  of  his  share  by  the  claim  of  a  superior  title,  he  may 
enter  upon  the  share  of  the  others,  and  ask  for  a  new  par- 

1*  Shipman  v.  Shipman  (N.  J.  Ch.  1904),  56  Atl.  Rep.  694;  Simpson  v. 
Scroggins,  182  Mo.  560,  81  S.  W.  Rep.  1129;  McConnell  v.  Pierce,  210 
III.  627,  71  N.  E.  Rep.  622;  Walker  r.  Williams  (Miss.  1904),  36  So. 
Rep.  450;  Bennett  v.  Bennett  (Miss.  1904),  36  So.  Rep.  452;  Willis  V. 
Loomis,  87  N.  Y.  S.  1086,  94  App.  Div.  67. 

15  Hanson  v.  Hanson  (Neb.  1904),  97  N.  W.  Rep.  23. 

i«  Thomas   v.   Hammill,    106    111.   App.   524. 

"I^gg  V.  Legg   (Wash.  1904),  75  Pac.  Rep.   130. 

"Hanson  v.  Hanson    (Neb.   1904),  97  N.  W.  Rep.  23. 

265 


§   199  PARTITION.  [part  I. 

tition  of  what  remains  of  the  original  joint  estate.^"  But  if 
the  partition  is  by  mutual  deeds  of  release,  there  will  be  no 
claim  for  compensation,  unless  the  partition  was  tainted  with 
fraud.'-"  For  this  reason,  and  perhaps  for  others,  it  is  im- 
possible for  one,  who  has  been  a  co-tenant,  to  acquire,  by  pur- 
chase after  partition,  a  superior  title  to  the  joint  estate  which 
he  may  enforce  against  his  former  co-tenants.  They  may 
claim  the  benefit  of  such  purchase  by  contributing  their  share 
of  the  price  or  consideration,  in  the  same  manner  as  before 
partition;  and  it  would  seem  that  this  would  be  the  case, 
whether  the  partition  was  voluntary  or  involuntary.^^ 

19  1  Washburn  on  Real  Prop.  689 ;  Co.  Lit.  173  b.  See  Campan  v. 
Bernard,  25  Mich.  382;  Huntley  v.  Cline,  93  N.  C.  458.  But  the  pur- 
chaser from  the  tenant  cannot  make  the  same  claim  for  re-partition. 
Ketchin  v.  Patrick   (S.  C),  11  S.  E.  Rep.  301. 

20Weiser  v.  Weiser,  5  Watts,  279;  Beardslee  v.  Knight,  10  Vt.  185. 
But  where  it  is  necessary  that  all  chould  join  in  an  action  on  the  cove- 
nant of  warranty  in  the  conveyance  to  them,  the  one  who  has  lost  his 
estate  may  call  upon  the  others  to  join  him  in  the  action  against  their 
common  warrantor.  Sawyers  V.  Cater,  8  Humph.  256;  Dugan  v.  Hol- 
lins,  4  Md.  Ch.  139;  4  Kent's  Com.  470.  But  now,  a  tenant  in  com- 
mon may  sue  alone  on  the  general  covenant  of  warranty  where  the 
breach  affects  him  alone.  Lamb  v.  Danforth,  59  Me.  322,  8  Am.  Rep. 
426. 

21  Venable  v.  Beuchamp,  3  Dana  326;  Co.  Lit.  174  a;  1  Washburn  on 
Real  Prop.  688.  Where  the  decree  in  partition  establishes  the  interest 
of  the  parties  it  is  final  and  binding  on  them,  as  to  such  interest,  and  in 
a  subsequent  action  for  trespass  against  the  defendant  in  such  suit,  he 
is  estopped  to  deny  that  his  interest  was  limited  as  specified  in  the  de- 
cree. Carter  v.  White  (1904),  134  N.  C.  466,  46  S.  E.  Rep.  983.  See, 
also,  as  to  estoppel  by  decree  in  partition,  Brush  v.  Coomer  (Ky.  1902), 
69  S.  W.  Rep.  793.  In  re  Sampson's  Est.,  22  Pa.  Sup.  Ct,  93. 
266 


CHAPTER  X. 

ESTATES    UPON    CONDITION    AND    LIMITATION,    AND    CONDITIONAL 

LIMITATIONS. 

Section    200.  Definition  of  estates  upon  condition. 

201.  Words  necessary  to  create  an  estate  upon  condition. 

202.  Conditions  precedent  and  subsequent  distinguished. 

203.  Invalid   conditions  —  Impossibility  of  performance. 

204.  Invalid   condition  —  B 'cause  of   Illegality. 

205.  Building  restrictions   in  deeds. 

206.  The  time  of  performance. 

207.  The  effect  of  breach  of  the  condition. 

208.  Waiver  of  performance. 

209.  Equitable  relief  against  forfeiture. 

210.  Estates  upon  condition,  distinguished  from  trusts. 

211.  Same  —  From    estates    upon    limitation    and    conditional 

limitations. 

§  200.  Definition  of  an  estate  upon  condition. —  This  estate 
is  one  which  is  made  to  vest,  to  be  modified  or  defeated,  upon 
the  happening  or  not  happening  of  some  event.^  If  the  estate 
is  to  be  created  or  enlarged  ^  upon  the  performance  of  the 
condition,  and  not  before,  it  is  called  a  condition  precedent; 
if  the  condition  is  to  defeat  or  limit  an  estate  already  vested, 
it  is  a  condition  subsequent .  Conditions  are  also  divided  into 
express  and  implied.  An  express  condition  is,  as  its  name 
implies,  one  which  is  expressly  created  in  the  instrument, 
which  limits  the  estate  to  which  the  condition  is  annexed,  and 
is  otherwise  called  a  condition  in  deed;  while  an  implied  con- 
dition is  not  exprassly  declared,  but  arises  by  implication  of 
law,  and  is  generally  annexed  to  certain  estates  as  an  invari- 

12   Washburn   on   Real   Prop.   2;    Co.  Lit.  201   a.     Frank  v.   Frank 
(Pa.),  17  Atl.  Rep.  11. 
«  See  Thayer  t?.  Spear,  58  Vt.  327. 

267 


§    201  ESTATES    UPON    CONDITION.  [PART    I. 

able  incident.^  The  annexation  of  a  condition  to  an  estate 
does  not  affect  the  grantee's  power  of  enjoyment  of  the  land,* 
or  prevent  its  alienation  or  disposition  by  devise.  The  only 
effect  is,  that  the  alienee  or  devisee  takes  the  estate  subject 
to  the  possibility  of  forfeiture  by  a  failure  to  perform  the 
condition.^  Nor  does  the  presence  of  the  condition  alter  the 
character  of  the  estate,  that  is,  determine  whether  it  is  a  free- 
hold, or  not.  Thus  an  estate  to  A.  for  fifty  years,  provided 
he  lives  so  long,  is  a  leasehold,  and  an  estate  to  A.  for  life, 
provided  he  does  not  live  longer  than  fifty  years  is  a  life  es- 
tate, notwithstanding  the  first  is  to  terminate  with  his  life, 
even  though  the  fifty  years  have  not  expired,  and  the  second 
is  to  terminate  with  the  expiration  of  the  fifty  years,  al- 
though he  is  still  alive.* 

§  201.  Words  necessary  to  create  an  estate  npon  condition. — 
No  particular  words  or  forms  of  expression  are  really  neces- 
sary for  the  creation  of  such  an  estate.  Any  words,  par- 
ticularly in  wills,  which  show  the  intention  to  annex  a  condi- 
tion to  the  estate  granted,  will  be  sufficient.  Such  phrases, 
however,  as  "on  condition,"  "provided,"  "if  it  shall  so  hap- 
pen," etc.,  are  found  in  constant  use,  and  if  resorted  to,  will 
ordinarily  remove  any  doubt  as  to  the  grant  being  an  estate 
upon  condition.'^     As  intimated,  it  is  more  difficult  in  devises, 

8  2  Washburn  on  Real  Prop.  3;  Co.  Lit.  201  a;  Vanhorne's  Lessee  V. 
Dorranee,  3  Dall.  317. 

•»  N.  J.  Zinc  and  Iron  Co.  v.  Morris,  etc.,  Co.  (N.  J.),  15  Atl.  Rep. 
227. 

5  2  Washburn  on  Real  Prop.  23;  Wilson  v.  Wilson,  38  Me.  18;  Under- 
bill V.  Saratoga  and  Washington  R.  R.  Co.,  20  Barb.  45;  Taylor  v. 
Sutton,  15  Ga.   103;  Munroe  v.  Hall,  97  N.  C.  206. 

«  2  Washburn  on  Real  Prop.  23 ;  Co.  Lit.  42  a ;  Ludlow  V.  New  York, 
etc.,  R.   R.  Co.,   12   Barb.  440. 

T  2  Washburn  on  Real  Prop.  3 ;  Vander's  Est.,  7  Pa.  Co.  Ct.  482 ;  Mil- 
ler V.  Board  of  Supervisors  (Miss.),  7  So.  Rep.  429;  CuUen  v.  Sprigg, 
83  Cal.  ,56,  23  Pae.  222;  Wilkesbarre  v.  Wyoming,  etc.,  Soc.  (Pa.),  19 
Atl.  Rep.  809 ;  Goodpaster  v.  Leathers  ( Ind. ) ,  23  N.  E.  Rep.  1090.  But 
it  must  be  expressed  in  the  deed;  it  cannot  be  created  by  parol.  Mar- 
288 


CH.    X.]  ESTATES   UPON    CONDITION.  §    201 

than  in  grants,  to  determine  whether  they  are  conditional,  and 
even  such  phrases,  as  those  above  mentioned,  in  the  case  of 
devises  do  not  necessarily  create  an  estate  upon  condition,  if 
from  the  context  the  testator  appears  to  have  had  a  contrary 
intention.*  It  has  also  been  held  lately  that,  where  a  tract 
of  land  was  conveyed  to  the  county,  in  consideration  of  the 
permanent  removal  of  the  county  seat  to  the  town  in  which 
the  land  conveyed  was  situated,  there  is  no  condition  subse- 
quent, which  becomes  broken  by  a  removal  of  the  county 
seat  many  years  afterwards.'  The  same  conclusion  is  reached 
in  other  cases,  where  the  special  consideration  of  the  convey- 
ance has  failed.^" 

shall,  etc.,  School  v.  Iowa,  etc.,  School,  28  Iowa,  360.  Hall  V.  Horton 
(Iowa),  44  N.  W.  Rep.  569.  If  the  right  of  entry  is  reserved  for  the 
breach  of  a  covenant  in  the  deed,  it  gives  to  the  covenant  the  char- 
acter of  a  condition  and  converts  the  estate  into  an  estate  upon  con- 
dition. Moore  r.  Pitts,  53  N.  Y.  85;  Ayer  V.  Emery,  14  Allen,  69; 
Rawson  V.  Uxbridge,  7  Allen,  125;  Waters  r.  Breden,  70  Pa.  St.  235; 
Wheeler  v.  Walker,  2  Conn.  201 ;  Supervisors,  etc.,  v.  Patterson,  50  111. 
119;  Berryman  i\  Schumacher,  67  Tex.  312.  But  see  Raley  V.  County 
of  Umantilla  (Oreg.),  13  Pac.  Rep.  890.  See  post.  Sec.  627.  In  cases 
of  doubt  a  clause  creating  an  equitable  restriction  on  land  is  construed 
most  strongly  against  the  grantor  and  in  favor  of  the  free  use  of  the 
land  by  the  grantee.  American  Unitarian  Ass'n  V.  Minot,  185  Mass. 
589,  71  N.  E.  Rep.  551;  McCucker  v.  Goode,  185  Mass.  607,  71  N.  E. 
Rep.  76.  Unless  there  is  a  condition  of  reverter,  as  a  penalty  for  the 
breach  of  the  condition,  the  estate  of  a  grantee  upon  condition  is  not 
terminated,  in  Arkansas.  Davis  v.  Jernigan,  71  Ark.  494,  76  S.  W.  Rep. 
554. 

8  2  Washburn  on  Real  Prop.  4.  See  Wheeler  v.  Walker,  2  Com.  201 : 
Hayden  v.  Stoughton,  5  Pick.  528;  Austin  v.  Cambridgeport  Parish,  21 
Pick.  215;  Stuvyesant  v.  Mayor  of  N.  Y.,  11  Paige  Ch.  427;  Lindsey  v. 
Lindsey,  45  Ind.  552. 

» Summer  v.  Darnell  (Ind.),  27  N.  E.  Rep.  162. 

10  Ruggles  V.  Clare  (Kan.),  26  Pac.  Rep.  25.  A  clause  in  a  deed,  for 
a  nominal  consideration,  to  a  city,  conditioned  that  the  land  conveyed 
should  always  be  used  as  a  burying  ground  and  a  neat  fence  forever 
maintained  around  it,  without  any  provision  for  a  reverter,  is  not  such 
a  condition  as  will  work  a  termination  of  the  title  of  the  grantee. 
Thornton  r.  Natchez.  129  Fed.  Rep.  84,  63  C.  C  A.  526.  A  deed,  in 
Pennsylvania,  to  a  church  corporation,  providing  that  the  land  should 

269 


§    202  ESTATES    UPON    CONDITION.  j  PART   I. 

§  202.  Conditions  precedent  and  subsequent  distingpiished. — 
It  is  not  always  an  easy  matter  to  determine  in  a  given  ease 
whether  a  condition  is  precedent  or  subsequent.  It  is  clear 
that  in  a  grant  to  A.  upon  his  marriage,  or  in  a  lease  for  ten 
years,  and  if  he  pays  a  certain  sum  of  money,  then  to  him 
and  his  heirs  forever,  the  conditions  are  precedent ;  or  that  in 
a  grant  to  A.  for  life,  provided  she  remains  a  vi'idow,  or  a 
grant  in  fee  with  a  rent  reserved,  with  right  of  entry  upon 
failure  to  pay,  they  are  conditions  subsequent.  But  in  wills, 
particularly,  great  difficulty  is  sometimes  experienced  in  reach- 
ing a  definite  conclusion  on  this  point.  The  construction  is, 
of  course,  governed  by  the  intention  of  the  grantor  or  devisor, 
as  obtained  from  the  instrument  of  conveyance.  Perhaps  the 
rule  for  the  determination  of  the  character  of  a  condition 
is  best  expressed  in  the  words  of  the  court  in  the  case  cited 
below,  viz. :  "If  the  act  or  condition  required  do  not  neces- 
sarily precede  the  vesting  of  the  estate,  but  may  accompany 
or  follow  it,  and  if  the  act  may  as  well  be  done  after,  as 
before  the  vesting  of  the  estate;  or  if,  from  the  nature 
of  the  act  to  be  performed,  and  the  time  required  for  its 
performance,  it  is  evidently  the  intention  of  the  parties  that 
the  estate  shall  vest,  and  the  grantee  perform  the  act,  after 
taking  possession,  then  the  condition  is  subsequent. "  ^^     But 

be  used  "  for  mission  purposes  only,"  without  any  limitation  over,  in 
case  of  non-user,  the  grantee  was  held  to  take  a  good,  marketable  title, 
in  fee  simple.  Rankin  Baptist  Church  v.  Edwards,  204  Pa.  St.  216,  53 
Atl.  Rep.  770.  A  clause  following  the  nominal  consideration  mentioned 
in  a  deed,  "  and  for  the  further  consideration  of  the  support,  during 
tne  life  of  the  grantor,"  is  not  a  condition  subsequent,  working  a  for- 
feiture, but  a  mere  matter  of  consideration,  or,  at  most  a  covenant. 
Helms  V.  Helms,  135  N.  C.  164,  47  S.  E.  Rep.  415. 

11  Underbill  v.  Saratoga  and  Washington  R.  R.  Co.,  20  Barb.  455. 
See  also  Finlay  v.  King's  Lessee,  3  Pet.  340;  Taylor  t\  Maxon,  9 
Wheat.  325;  Austin  v.  Cambridgeport  Parish,  21  Pick.  215;  Barruss  v. 
Madan,  2  Johns.  145;  Horsey  v.  Horsey,  4  Harr.  517;  Waters  v.  Bieden, 
70  Pa.  St.  235;  Farabow  v.  Green,  108  N.  C.  339,  where  condition  en- 
larged a  life  estate  into  a  fee;  Stanton  V.  Allen  (S.  C. ),  10  S.  E.  Rep. 
878;  Blanchard  f.  Morcy,  50  Vt.  170,  a  case  of  condition  precedent; 
Morse  v.  Hayden,  82  Me.  227;  Wahl's  Estate,  8  Pa.  Co.  C.  309;  John- 
270  *  2 


CH.    X.]  ESTATES   UPON   CONDITION.  §    203 

while  the  courts  are  inclined,  in  any  case  of  doubt,  to  treat  the 
condition  as  subsequent,  yet  a  stricter  rule  of  construction  is 
applied  than  if  the  condition  is  precedent.  It  must  be 
created  by  express  limitation,  or  arise  by  necessary  implica- 
tion, in  order  to  work  a  forfeiture  of  an  estate  already 
vested.^*  And  if  the  performance  of  the  condition  is  not  ex- 
pressly imposed  upon  the  heirs  and  assigns,  its  breach  will 
not  work  a  forfeiture,  if  the  estate  has  previously  descended 
to  the  heirs,  or  has  been  conveyed  away.  In  such  a  case,  the 
estate  cannot  be  forfeited  for  any  breach  of  the  condition, 
occurring  after  the  grantee  has  parted  with  the  estate.^' 

§  203.  Invalid  conditions  —  Impossibility  of  performance. — 
If  the  condition  is  impossible  from  the  beginning,  and  is  for 
that  reason  manifestly  absurd,  or  becomes  impossible  through 

son  V.  Warren,  74  Mich.  491 ;  Robertson  v.  Mowell,  66  Ind.  565,  con- 
dition precedent;  Burleyson  v.  Whitley,  97  N.  C.  295,  condition  pre- 
cedent; Barnet  v.  Barnet,  43  N.  J.  Eq.  297,  precedent;  Reuff'v.  Cole- 
man's Heirs,  30  W.  Va.  171;  Hoard  V.  Wheatley,  15  Lea  607;  Wein- 
reich  v.  Weinreich,  18  Mo.  App.  364;  Chute  v.  Washburn,  44  Minn.  312. 

i2Laberee  V.  Carleton,  53  Me.  213;  Merrifield  v.  Cobleigh,  4  Cush. 
178;  Bradstreet  V.  Clark,  21  Pick.  389;  Hoyt  V.  Kimball,  49  N.  H.  327; 
Ludlow  V.  N.  Y.  and  Harlem  R.  R.  Co.,  12  Barb.  440;  Martin  v.  Bal- 
lon, 13  Barb.  119;  McWilliams  V.  Nisley,  2  Serg.  &  R.  523;  McKelway 
r.  Seymour,  29  N.  J.  L.  322;  Gadberry  v.  Sheppard,  27  Miss.  203;  Voris 
v.  Renshaw,  49  111.  4.32;  Board  etc.,  V.  Trustees,  etc.,  63  111.  204.  A 
deed,  made  upon  condition  that  the  grantee  therein  was  to  negotiate  a 
loan,  is  a  condition  precedent  to  the  vesting  of  the  title  and  if  no  loan 
is  made,  the  estate  terminates.  Carloss  v.  Oxford  (Ark.  1904),  80  S. 
W.  Rep.  144.  A  condition  subsequent  that  the  life  estate  shall  termi- 
nate if  the  life  tenant  does  not  occupy  the  land,  is  valid.  Lewis  v. 
Lewis,  76  Conn.  586,  57  Atl.  Rep.  735.  A  provision  in  the  nature  of 
a  condition  subsequent,  providing  for  the  grantor's  support  was  en- 
forced, in  Michigan,  in  Cornell  v.  Whitney  (1903),  93  N.  W.  Rep.  614. 
See,  also.  Wanner  v.  Wanner  (Wis.  1902),  115  Wis.  196,  91  N.  W.  Rep. 
071.  A  deed  made  upon  the  condition  that  the  land  at  the  grantor's 
death  shall  be  subject  to  his  debts,  is  a  valid  condition,  for  the  breach 
of  which,  the  land  can  be  sold  to  pay  his  debts.  Matheny  v.  Fergu- 
son (W.  Va.  1904),  47  S.  E.  Rep.  888. 

18  2  Washburn  on  Real  Prop.  7,  8;  Emerson  v.  Simpson,  43  N.  H.  475; 
Page  V.  Palmer,  48  N.  H.  385. 

271 


§  204  ESTATES  CrON  CONDITION.  [PART  I. 

the  act  of  the  grantor,  or  by  the  act  of  God  or  inevitable  acci- 
dent, the  performance  will  be  excused,  and  the  condition  held 
void.  Its  invalidity,  however,  would  have  a  diiferent  effect 
upon  the  estate,  according  as  it  is  a  condition  precedent  or 
subsequent.  If  the  condition  is  precedent,  the  estate  will  fail, 
just  as  if  the  condition  was  valid  and  had  been  broken.^* 
But  if  it  is  a  condition  subsequent,  its  invalidity  would  de- 
stroy the  right  of  entry  and  forfeiture  in  the  grantor,  and 
leave  the  estate  in  the  grantee  absolute  and  free  from  the  con- 
dition.^^ 

§  204.  Invalid  conditions  —  Because  of  illegality. —  Similar 
effects  would  be  produced,  if  the  condition  is  invalid,  because 
of  its  illegality.  A  condition  is  illegal,  whenever  it  involves 
the  performance  of  an  act  prohibited, by  law.  Thus  a  con- 
dition, that  the  grantee  shall  commit  a  murder  or  any  other 
crime,  would  be  void;  and,  if  it  is  a  condition  subsequent, 
the  grantee  would  take  an  absolute  estate.  The  illegal  condi- 
tions, most  commonly  met  with,  are  those  restricting  marriage 
and  the  alienation  of  a  fee  simple  estate  by  the  grantee.  An 
absolute  restriction  of  that  kind  would  be  just  as  invalid  as 
the  condition  to  commit  a  crime.^'^     But  where  an  estate  is 

i«Co.  Lit.  206;  Harvpy  v.  Aston,  1  Atk.  374;  Taylor  v.  Mason,  9 
Wheat.  325;  Martin  V.  Ballou,  13  Barb.  119;  Vanhorne's  Lessee  v.  Dor- 
ranee,  2  Dall.  317;  Mizell  V.  Burnett,  4  Jones  L.  249. 

15  Co,  Lit.  206  a;  Brandon  V.  Robinson,  18  Ves.  429;  Hughes  v.  Ed- 
wards, 9  Wheat.  489 ;  Blackstone  Bank  v.  Davis,  12  Pick.  42 ;  Badlam  V. 
Tucker,  1  Pick.  284;  Merrill  V.  Emery,  10  Pick.  507;  Gadberry  v. 
Sheppard,  27  Miss.  203.  As  to  just  how  far  the  impossibility  of  per- 
formance will  relieve  a  party  from  an  absolute  condition  of  his  con- 
tract, where  no  exception  as  to  the  impossibility  of  performance  is  en- 
tered in  the  contract,  is  differently  decided  by  different  courts.  One 
who  agreed  to  perform  the  impossible  without  qualification,  was  held 
to  his  contract  in  Missouri,  in  Brinkenhoff  v.  Elliott,  43  Mo.  App.  193. 
See  also.  Hall  v.  School' Dist,  24  Mo.  App.  218;  Harrison  v.  R.  R.,  74 
Mo.  371. 

13  Brandon  v.  Robinson,  18  Ves.  429;  Mumoe  V.  Hall,  97  N.  C.  200; 
Phillips  V.  Ferguson  (Va.),  8  S.  E.  Rep.  241;  Myers  V.  Bentz,  127  Pa. 
St,  222 ;  Mclntyre  v.  Mclntyre,  123  Pa.  St,  323 ;  Hartman  v.  Herbine,  7 
272 


CH.    X.]  ESTATES   UPON   CONDITION.  §    204 

granted  to  a  widow  during  widowhood,  it  being  an  estate  upon 
limitation  and  not  an  estate  upon  condition,  it  is  a  good  limi- 
tation, and  the  estate  will  terminate  upon  her  marriage.*^ 
But  if  tho  devise  is  for  life,  or  during  widowhood,  having  first 
given  her  an  estate  for  life,  the  subsequent  limitation  during 
u'idowhocd  operates  as  a  condition ;  it  must  be  construed  to 
be  a  condition  and  for  that  reason  has  been  sometimes  held  to 
be  void,  but  not  always.^®  The  general  rule  is  that  if  the  re- 
striction against  alienation  or  marriage  is  only  for  a  limited 
period,  as  during  minority  or  coverture,  or  if  it  is  directed 
only  against  certain  persons,  as  that  the  grantee  shall  not 
alien  to,  or  marry,  a  certain  named  person  or  class  of  per- 
sons, it  is  a  good  condition  and  can  be  enforced.^"     So,  also, 

Pa.  C.  C.  630;  Lloyd  v.  Mitchell,  130  Pa.  St.  205;  Halladay  v.  Stickler, 
78  Iowa,  388;  Farris  v.  Rogers  (Ky.),  7  S.  W.  Rep.  543;  Pepper's  Ap- 
peal, 120'Pa.  St.  235;  Anglesea  V  Church  Wardens,  6  Q.  B.  114;  Willis 
V.  Hiscox,  4  Mylne  &  Cr.  197 ;  Hall  v.  Tuflfts,  18  Pick.  455 ;  Blackstone 
Bank  v.  Davis,  21  Pick.  42;  Schermerhorn  v.  Meyers,  1  Denio,  448; 
Allen  V.  Craft,  109  Ind.  47G;  Greene  v.  Greene,  125  N.  Y.  506;  Stans- 
bury  V.  Hubner,  73  Md.  228.  But  for  condition  against  sale,  by  a  life 
tenant,  see  Lewis  v.  Lewis,  76  Conn.  586,  57  Atl.  Rep.  735. 

"Co.  Lit.  42  a;  ante,  Sec.  60;  Harmon  v.  Brown,  58  Ind.  207;  Cop- 
page  V.  Alexander's  Heirs.  2  B.  Mon.  113;  Boylan  V.  Deinzer,  45  N.  J. 
Eq.  485;  Little  V.  Giles,  25  Neb.  313;  Schreiner  v.  Smith,  38  Fed.  Rep. 
897;  Traphagen  v.  Levy,  45  N.  J.  Eq.  448;  Best  V.  Best  (Ky.),  11  S.  W. 
Rtp.  600;  Long  f.  Paul,  127  Pa.  St.  456;  Levengood  v.  Hopple  (Ind.), 
24  N.  E.  Rep.  373;  Brotzman's  App.  (Pa.),  19  Atl.  Hop.  564;  Siddons 
V.  Cockrell  (111.),  23  N.  E.  Rep.  586;  Harmon  v.  Dyer  (Ky.),  12  S,  W. 
Rep.  774;  Myers  v.  Adler,  6  Mackey,  515;  Rowland  v.  Rowland  (S.  C. ), 
6  S.  E.  Rep.  902;  Squier  v.  Harvey  (R.  I.),  14  Atl.  Rep.  862;  Beshore 
V.  Lytle,  114  Ind.  8;  Summit  v.  Yount,  109  Ind.  506;  King  v.  Grant, 
55  Conn.  166;  McGuire's  Appeal  (Pa.),  11  Atl.  Rep.  72;  Knight  v.  Ma- 
honey  et  al.,   152  Mass.  .523. 

18  Lloyd  t?.  Lloyd,  2  Sim.  (n.  S.),  255;  Coon  v.  Bean,  69  Ind.  474; 
Stillwell  V.  Knapper,  69  Ind.  558,  35  Am.  Rep.  240;  contra.  Dumoy  v. 
Schaeffer,  24  Mo.  170;  see  Martin  v.  Seigler  (S.  C),  10  S.  E.  Rep.  1073; 
Greenhalgh  v.  Marggraf,  7  N.  Y.  S.  Rep.  728.  Any  illegal  condition 
in  deed  renders  it  void.  Watkins  v.  Nugent,  118  Ga.  372,  45  S.  E. 
Rep.  260;  Wakefield  i;.  Van  Tossee,  202  111.  41,  66  N.  E.  Rep.  830. 

i»Co.  Lit.  223  a;  2  Washburn  on  Real  Prop.  9;  Hunt  r.  Wright.  47  N. 
H.  306;  Plumb  v.  Tobbs,  41  N.  Y.  442;  McWilliams  v.  Nisly,  2  Serg. 

18  273 


§   204  ESTATES   UPON    CONDITION.  [PART   I. 

is  a  general  restriction  of  alienation  valid,  where  the  land  is 
conveyed  to  charitable  uses.***  A  condition,  restraining  the 
alienation  of  a  life  estate  or  one  for  years,  is  valid,  even 
though  it  is  absolute  both  as  to  the  persons  and  time."  The 
statute  quia  emptores,  which  made  conditions  in  restraint  of 
alienation  void,  only  applied  to  estates  in  fee.^*  So  also  will 
a  condition  be  void,  which  defeats  the  estate  if  it  is  appro- 
priated to  the  payment  of  the  grantee's  debts.**  But  an 
estate  may  be  limited  to  determine  upon  the  insolvency  or 
bankruptcy  of  the  grantee ;  in  such  a  case,  however,  the  estate 
would  be  one  upon  limitation  and  not  upon  condition.**  It 
may  be  added  finally,  that  a  condition  is  never  illegal  because 
the  prohibited  act  or  deed  is  itself  lawful.     Thus  a  condition 

&  R.  513;  Attwater,  18  Beav.  330;  Large's  Case,  2  Leon.  82;  Stewart 
V.  Brady,  3  Bush.  623;  Reuff  v.  Coleman's  Heirs,  30  W.  Va.  171.  But 
Bee  Greene  t?.  Greene,  125  N.  Y.  506:  Lewis  v.  Lewis,  76  Conn.  586, 
57  Atl.  Rep.  735. 

20  Butterfield  V.  Wilton  Academy  (Iowa),  38  N,  W.  Rep.  390;  Bennett 
V.  Washington  Cemetery,  26  Abb.  N.  C.  459.  But  the  restriction  will 
not  be  presumed  from  the  declaration  of  the  trusts.  Fewbold  v.  Glenn 
(Md.),  10  Atl.  Rep.  242;  Gage  v.  School  District  No.  7  (N.  H.),  9  Atl. 
Rep.  387. 

21  1  Washburn  on  Real  Prop.  118,  207;  1  Cruise  Dig.  108;  see  anfe, 
Sees.  51,  140;  Lewis  v.  Lewis,  76  Conn.  586,  57  Atl.  Rep.  735. 

22  Ctisswell  V.  Grumbling,  107  Pa.  St.  408 ;  Hayes  v.  Davis,  105  N.  C. 
482;  Reynolds  v.  Crispin  (Pa.),  11  Atl.  Rep.  236;  Chautauqua  As- 
sembly V.  Ailing,  46  Hun,  582.  A  condition  against  alienation  of  land, 
in  a  deed,  during  the  life  of  the  grantor  and  providing  for  monthly 
payments  to  her,  is  a  condition  running  with  the  land,  and  is  a  con- 
tinuing charge  upon  it,  which  equity  will  enforce.  Polzin  v.  Polzin,  110 
111.  App.  187.  Where  the  estates  of  two  life  tenants  are  upon  the  con- 
dition that  neither  should  alien  the  estate,  a  purchase  of  the  first  life 
tenant's  interest  by  the  reversioner  is  not  a  waiver  of  the  condition  as 
to  the  second  life  tenant.  Lewis  v.  Lewis,  76  Conn.  586,  57  Atl.  Rep. 
735. 

28  Brandon  v.  Robinson,  18  Ves.  429;  Blackstone  Bank  v.  Davis,  21 
Pick.  42;  Wellington  v.  Janvrin,  60  N.  H.  174;  McCormick,  etc..  Ma- 
chine Co.  V.  Gates    (Iowa),  39  N.  W.   Rep.  657. 

2*  See  post.  Sec.  370.     As  to  condition  that  on  death  of  the  grantor 
the  land  shall  be  liable  for  his  debts,  see,  Matheny  v.  Ferguson    (W. 
Va.  1904),  47  S.  E.  Rep.  886. 
274 


CH.    X.]  ESTATES   UPON    CONDITION.  §    205 

against  the  sale  of  intoxicating  liquor  on  the  premises  sold  and 
granted,  is  legal  even  though  the  sale  of  liquor  is  not  gener- 
ally prohibited  by  law  in  the  State  in  which  the  question 
arises.^'  It  is  also  permissible  to  convey  an  estate  upon  con- 
dition, that  the  grantor  does  not  revoke  the  conveyance  dur- 
ing her  life.^"  But  this  would  more  properly  be  described  as 
a  power  of  revocation.^^ 

§  205.  Building  restrictions  in  deeds. —  Analogous  to  condi- 
tions effecting  the  use  or  enjoyment  of  property  by  the  gran- 
tee, are  the  modern  building  restrictions  in  deeds  to  city  prop- 
erty, which  may  or  may  not  be  construed  by  the  courts  as  con- 
ditions limiting  the  use  or  method  of  building  upon  the  land 
granted,  according  to  the  language  employed  in  the  deed,  or 
other  instrument  of  conveyance.  A  restriction  in  deeds  to 
several  lots  that  but  ' '  one  building  is  to  be  used  as  a  dwelling 
house,  upon  each  lot,"  is  held  to  be  violated  by  a  double 
dwelling  house,  with  separate  entrances  and  exits,  which  is 
occupied  by  two  families ;  ^^  a  restriction  in  a  deed  to  several 
lots  fronting  upon  a  public  street,  that  no  buildings  shall  be 
constructed  nearer  than  a  certain  distance  of  the  street,  if 
part  of  a  general  scheme  or  plan,  in  the  conveyance  or  dedica- 
tion of  such  property,  is  a  condition  which  the  courts  will  en- 
force,^" and  a  condition  that  no  building  shall  be  used  for  a 

25  Smith  V.  Barrie,  56  Mich.  314.  A  condition  against  the  sale  of 
intoxicating  liquor  on  the  land  granted,  is  a  condition  working  a  for- 
feiture, in  Nebraska,  for  the  breach  of  which  the  grantee  can  be  ejected. 
Jetter  v.  Lyon  (1904),  97  N.  W.  Rep.  5»6.  See,  also,  Granite  Bldg. 
Co.  V.  Green,  25  R.  I.  586,  57  Atl.  Rep.  649;  Spear  v.  Fuller,  8  N.  H. 
174,  28  Am.  Dec.  391;  Brown  v.  Bragg,  22  Ind.  122;  Bums  v.  Me- 
Cubbin,  3  Kan,  221,  87  Amer.  Dec.  468,  Sec.  149  ante. 

26Recketts  V.  Louisville,  etc.,  Ry.  Co.  (Ky.),  15  S.  W.  Rep.  182. 

27  See  post.  Sec.  404. 

28  Harris  ».  Roraback  (Mich.  1904),  100  N.  W.  Rep.  391;  McMurray 
r.  Investment  Company,  103  Ky.  308,  45  S.  W.  Rep.  96,  40  L.  R.  A. 
489;  Reardon  v.  Murphy,  163  Mass.  501,  40  N.  E.  Rep.  854. 

2»Helmsley  v.  Marlborough  Hotel  Co.  (N.  J.  Ch.  1903),  55  Atl.  Rep. 
994;  Schubert  v.  Eastman  Realty  Co.,  25  Ohio  Cir.  Ct.  336;  Ewersten 
V.  Gerstenberg,  186  111.  344,  57  N.  E.  Rep.  1061,  61  L.  R.  A.  310. 

276 


§   205  ESrATES    UPON    CONDITION.  [PART   I. 

saloon,  by  the  grantee,  or  any  one  claiming  under  him,  and 
that  such  use  shall  cause  a  reverter  of  the  lot  so  used,  to  the 
grantor  or  his  heirs,  is  a  valid  condition  subsequent,  running 
with  the  land.*"  But  in  cases  of  any  doubt,  such  clauses 
creating  restrictions  upon  the  grantee's  land  are  construed 
most  strongly  against  the  grantor  and  in  favor  of  the  free 
use  of  his  land,  by  the  grantee.'^  And  unless  part  of  a  gen- 
eral plan,  in  the  sale  of  contiguous  properties,  a  clause  limiting 
the  buildings  to  certain  portions  of  the  land  sold,  will  not  be 
enforced ;  *-  annexations  or  porches,  not  a  portion  of  the  build- 
ing proper,  are  not  held  to  violate  restrictions  against  build- 
ings erected  nearer  than  a  certain  distance  of  the  street ;  ^*  a 
grantee  who  has  violated  such  a  restriction  cannot  ask  to  have 
it  enforced  as  against  another  grantee  of  the  property,**  and 
no  language  will  be  held  to  imply  such  a  condition  on  the 
enjoyment  or  use  of  property,  that  is  not  clear  and  explicit, 
as  a  condition,  instead  of  a  covenant  or  other  ''understand- 
ing" between  the  parties.*^ 

80  Jettej  V.  Lyon   (Neb.  1903),  97  N.  W.  Rep.  596. 

31  Anier.  Unitarian  Ass'n  v.  Minot,  185  Mass.  589,  71  N.  E.  Hop.  551. 

32  Schubert  V.  Eastman  Realty  Co.,  25  Ohio  Cir.  Ct.  336 ;  Ewersten  v. 
Gerstenberg.  186  111.  344,  57  N.  E.  Rep.  1051,  51  L.  R.  A.  310. 

33  01cott  V.  Sbepard,  89  N.  Y.  S.  201,  96  App.  Div.  281;  Hawes  V. 
Favor,  161  111.  440,  43  N.  E.  Rep.  1076;  Kirkpatrick  v.  Peshine,  24  N. 
J.  Eq.  206. 

34  Schubert  v.  Eastman  Realty  Co.,  25  Ohio  Cir.  Ct.  3,36;  Ewersten 
r.  Gerstenberg,  186  111.  .344,  57  N.  E.  Rep.  1051,  51  L.  R.  A.  310. 

35  Huron  v.  Wilcox  (S.  D.  1904),  98  N.  W.  Rep.  88.  A  clause  in  a 
deed  to  a  city,  for  a  fair  valuable  consideration,  that  it  is  the  "  under- 
standing "  that  the  premises  are  to  be  used  for  City  Hall  purposes  only, 
is  void,  as  a  condition,  limiting  the  use  of  such  property  and  the 
grantee  can  use  it  for  any  purpose  it  desires.  Huron  V.  Wilcox,  supra. 
See  also,  Curtis  v.  Board  of  Education,  43  Kan.  138,  23  Pac.  Rep.  98; 
Packard  v.  Ames,  16  Gray,  327;  Green  v.  O'Connor  (R.  I.),  25  Atl. 
Rep.  692,  19  L.  R.  A.  262;  Soukup  v.  Topka  (Minn.),  55  N.  W.  Rep. 
824;  Faith  v.  Bowles  (Md.),  37  Atl.  Rep.  711,  63  Am.  St.  Rep.  489; 
Famham  v.  Thompson,  34  Minn.  330;  Weir  V.  Simmons  (Wis.),  13  N. 
W.  Rep.  873;  Portland  v.  Terwillier  (Or.),  19  Pac.  Rep.  90;  Eckroyd 
V.  Coggeshell,  21  R.  I.  1,  41  Atl.  Rep,  260,  79  Am.  St.  Rep.  741;  Kal- 
patrick  v.  Mayor  (Md.),  31  Atl.  Rep.  807,  27  L.  R.  A.  643,  48  Am.  St. 

276 


CH.    X.]  ESTATES   UPON   CONDITION.  §    206 

§  206.  The  time  of  performance. —  If  there  is  a  time  speci- 
fied, within  which  the  condition  is  to  be  performed,  it  cannot 
be  performed  afterwards.  Where  there  is  no  express  specifi- 
cation of  time,  it  must  be  determined  from  the  apparent  in- 
tention of  the  grantor  or  testator,  as  gathered  from  the  con- 
text and  the  nature  of  the  condition.  Generally,  if  the  time 
of  performance  is  not  limited,  the  grantee  has  his  whole  life  in 
which  to  perform.  But  if  a  prompt  performance  appears  to 
have  been  intended  from  the  use  of  words  in  the  present  tense, 
or  if  any  other  way  an  immediate  performance  is  indicated; 
or  if  an  early  performance  is  necessary,  in  order  that  the 
grantor  may  obtain  the  expected  benefit,  the  grantee  has  only 
a  reasonable  time  in  which  to  perform.  Thus,  where  an  es- 
tate was  conveyed  upon  condition,  that  the  grantee  should 
pay  a  certain  mortgage  upon  the  estate,  a  prompt  compliance 
with  the  condition  was  held  necessary.^* 

Rep.  509;  Carroll  Co.  Academy  v.  Trustees  (Ky),  47  S.  W.  Rep.  617; 
Ashland  r.  Griener  (Ohio),  50  N.  E.  Rep.  99;  Hand  v.  St.  Louis  (Mo.), 
59  S.  W.  Rep.  92.  But  where  a  deed  to  a  city,  provides  for  the  erec- 
tion of  a  building,  within  a  fixed  period  and  also  for  a  reverter,  in 
case  of  a  breach  of  the  condition,  a  failure  to  build,  as  provided, 
works  a  forfeiture  of  the  estate.  Trustees  Union  College  r.  New  York, 
173  N.  Y.  38,  65  X.  E.  Rep.  853;  Best  V.  Nagle,  182  Mass.  495.  65  N. 
E.  Rep.  842. 

8«Co.  Lit.  208  b;  Finlay  f.  King's  Lessee,  3  Pet.  374;  Hayden  V. 
Stoughton,  5  Pick.  528;  Ross  V.  Tremain,  2  Mete.  495;  Allen  V.  Howe, 
105  Mass.  241;  Williams  r.  Angell,  7  R.  I.  152;  Stuyvesant  v.  Mayor  of 
N.  Y.,  11  Paige  Ch.  425;  Hamilton  v.  Elliot,  5  Serg.  &  R.  375.  A  con- 
dition against  incumbrances  is  held  to  apply  to  voluntary  incum- 
brances only  and  a  sale  for  taxes  does  not  work  a  forfeiture  of  such 
a  condition.  Fonts  r.  :Miliken  (Ind.  1903),  65  N.  E.  Rep.  1050.  A 
condition  against  incumbrances  and  providing  for  a  forfeiture  for  breach 
thereof,  was  held  limited  to  the  mortgaged  portion  of  the  granted 
premises,  in  Indiana,  in  Fonts  t;.  M>ll>ken  (1903),  65  N.  E.  Rep.  lO.'iO. 
A  beneficiary  holding  property,  by  virtue  of  a  condition  entered  into 
by  its  committee,  cannot  repudiate  the  condition  and  also  hold  the 
property,  but  will  hold  it  as  a  trustee  for  the  grantor,  after  breach  of 
the  condition.  Med.  College  of  New  York  v.  N.  Y.  University,  78  N.  Y„ 
S.  673,  76  App.  Div.  48.  One  taking  land  with  knowledge  of  the 
breach  of  a  condition  subsequent  is  bound  by  such  condition  and  the 

277 


§    207  ESTATES   UPON   CONDITION.  [pART   I. 

§  207.  The  effect  of  a  breach  of  the  condition. —  If  it  is  a 
condition  precedent,  the  failure  to  perform  will  prevent  the 
estate  from  taking  effect.^^  But  if  it  is  a  condition  subse- 
quent, the  estate  is  defeated  only  at  the  election  of  the  parties 
who  can  take  advantage  of  the  breach.^*  But  where  the  con- 
dition is  a  double  contingency,  the  breach  of  which  cannot  be 
claimed  unless  both  contingencies  occur,  the  happening  of 
one  of  them  will  not  have  any  effect  upon  the  estate  to  which 
the  condition  is  attached.'®  At  common  law  it  was  necessary 
for  such  a  party  to  enter  upon  the  estate,  in  order  to  work  a 
forfeiture.  It  could  not  be  effected  by  bringing  an  action 
for  the  recovery  of  the  possession.  This  rule  has  been  some- 
what changed,  so  that  at  the  present  time  the  ordinary  action 
of  ejectment  would  have  the  same  effect  as  the  common-law 
entry.*"    Where  the  grantor  is  already  in  possession,  the  for- 

forfeiture  can  be  enforced  against  him,  by  the  grantor's  heirs.     Brown 
V.  Tilley,  25  R.   I.   579,  57  Atl.  Rep.   380. 

STCorless  v.  Oxford    (Ark.  1904),  80  S.  W.  Rep.   144. 

38  The  breach  of  the  condition  does  not  alone  defeat  the  estate.  Web- 
ster r.  Cooper,  14  How.  501;  Talman  v.  Snow,  35  Me.  342;  Hubbard  v. 
Hubbard,  97  Mass.  192;  Warner  v.  Bennett,  31  Conn.  477;  Ludlow  v. 
N.  Y.  &  Harlem  R.  R.,  12  Barb.  440;  Canal  Co.  v.  Railroad  Co.,  4  Gill 
&  J.  121;  Phelps  V.  Chesson,  12  Ired.  194;  Vail  v.  Long  Island  R.  Co., 
106  N.  Y.  283;  Berryman  v.  Schumacher,  67  Tex.  312.  A  condition 
that  the  deed  is  to  be  void,  if  the  grant«e  fails  to  support  the  grantor, 
can  be  taken  advantage  of  only  by  the  grantor  himself  and  not  by 
third  parties.     Helms  v.  Helms,  135  N.  C.  164,  47  S.  E.  Rep.  415. 

39  Forsyth  v.  Forsyth  (N.  Y.),  19  Atl,  Rep.  119;  Morse  V.  Church, 
15  R.  L  336. 

«oSee  1  Prest.  Est.  46,  48,  50;  Co.  Lit.  201  a;  2  Washburn  on  Real 
Prop.  13;  1  Smith  Ld.  Cas.  89;  Doe  v.  Masters,  2  B.  &  C.  490;  Osgood 
V.  Abbott.  58  Me.  73;  Sperry  v.  Sperry,  8  N.  H.  77;  McKelway  v.  Sey- 
mour, 29  N.  J.  L.  329 ;  Jackson  V.  Crysler,  1  Johns.  125 ;  Fonde  v.  Sage, 
46  Barb.  123;  Green  v.  Pettingill,  47  N.  H.  375;  Austin  v.  Cambridge 
port  Parish,  21  Peck.  224;  Stearns  v.  Harris,  8  Allen,  598;  Phelps  v. 
Chesson,  12  Ired  L.  194 ;  Chalker  v.  Chalker,  1  Conn.  79.  On  breach  of 
a  condition  subsequent  in  a  deed,  the  grantor  or  his  heirs,  can  enforce 
the  forfeiture,  by  ejectment,  in  Nebraska.  Jetter  v.  Lyon  (1904),  97  N. 
W.  Rep.  596. 

278 


CH.    X.]  ESTATES   UPON   CONDITION.  §    207 

feiture  is  effected  without  any  overt  act.*^  This  right  of  en- 
try need  not  be  expressly  reserved  where  the  condition  is  ex- 
press. It  follows  as  a  necessary  incident  to  the  condition  and 
passes  with  the  land,  into  whosesoever  hands  it  may  come.*^ 
The  eniorcement  of  the  forfeiture  does  not  depend  upon  any 
previous  demand  for  the  performance  of  the  condition.  The 
grantee  should  perform  without  any  demand  or  notice.*' 
Conditions  are  reserved  only  to  the  grantor  and  his  heirs. 
They  cannot  be  reserved  for  the  benefit  of  third  persons.  As 
a  general  rule,  therefore,  only  the  grantor  and  his  heirs  have 
a  right  to  enter  upon  condition  broken,  and  they  lose  their 
rights  if  they  should  convey  away  the  reversion  in  them.  The 
right  of  entry  is  not  an  estate,  not  even  a  possihiliti)  of  re- 
verter; it  is  simply  a  cJiose  in  action.**  And  although  it  has 
been  held  that  an  express  condition  can  be  devised  with  the 
reversion,  and  the  devisee  and  his  heirs  enter  for  the  breach,*' 

"Guffey  V.  Hukill  (W.  Va.),  11  S.  E.  Rep.  750;  Witte  v.  Quinn, 
38  Mo.  App.  681. 

42  Osgood  V.  Abbott,  58  Me.  73 ;  Gray  v.  Blancbard,  8  Pick.  284 ;  Jack- 
son V.  Aller,  3  Cow,  220;  Jackson  v.  Topping,  1  Wend.  388;  Bowen  v. 
Bowen,  18  Conn.  535.  A  clause  in  a  deed  that  "  this  deed  is  upon  the 
following  condition  upon  the  breach  of  which  the  grantor,  or  his  wife, 
or  heirs  shall  have  the  right  to  re-enter  and  thereupon  the  title  con- 
veyed hereunder  shall  cease,"  creates  a  condition  subsequent,  for  a 
breach  of  which  the  estate  can  be  determined.  Brown  v.  Tilley,  25  R. 
I.  579,   57   Atl.   Rep.  380. 

43  Royal  V.  Aultman-Taylor  Co.,  116  Ind.  424. 

44  Shulenberg  v.  Harriman,  21  Wall.  346;  Hooper  v.  Cummings,  45 
Me.  3.59;  Gray  V.  Blanchard,  8  Pick.  284;  Merritt  V.  Harris,  102  Mass. 
328;  Fonda  V.  Sage,  46  Barb.  122;  Cross  v.  Carson,  8  Blackf.  138;  Co. 
Lit.  201  a.  Butler's  note,  84;  2  Washburn  on  Real  Prop.  13-15;  Hay- 
ward  V.  Kinney,  84  Mich.  501 ;  Helms  v.  Helms,  135  N.  C.  164,  47  S.  E. 
Rep.  415;  Brown  v.  Tilley,  25  R.  I.  579,  57  Atl.  Rep.  380. 

43  This  appears  to  be  a  local  rule  in  Massachusetts.  Hayden  v. 
Stoughton,  5  Pick.  528;  Clapp  r.  Stoughton,  10  Pick.  463;  Austin  v. 
Cambridgeport  Parish,  21  Pick.  215.  See  contra,  Avelyn  V.  Ward,  1 
Ves.  Sr.  422;  Southard  v.  Central  R.  R.,  26  N.  J.  L.  21;  Cornelius  v. 
Ivins,  25  N.  J.  L.  386.  See  also  Webster  V.  Cooper,  14  How  (U.  S.) 
501;  Nicoll  V.  N.  Y.  &  Erie  R.  R.,  12  N.  Y.  121;  Henderson  v.  Hunter, 
59  Pa.  St.  341;  Jones  v.  Roe,  3  T.  R.  88. 

279 


§    207  ESTATES   UPON   CONDITION.  [PART  L 

yet  siieh  a  condition  cannot  be  aliened  or  assigned,  and  docs 
not  pass  with  a  grant  of  the  reversion.*^  This  rule  against 
assignment  of  the  right  of  entry  was  restricted  by  the  statute, 
32  Hen.  VIII,  ch.  34,  to  freehold  estates  upon  condition,  thus 
enabling  the  assignees  of  the  reversion  to  enforce  the  for- 
feiture of  leasehold  estates  for  the  breach  of  the  condition.*^ 
But  if  it  be  a  condition  in  law,  or  an  implied  condition,  the 
right  of  entry  was  always  assignable,  it  being  considered  more 
in  the  nature  of  an  incident  to  the  right  of  property,  than  a 
separate  and  independent  chose  in  action.*^  But  the  condition 
cannot  be  apportioned  between  two  or  more  assignees  of  sepa- 
rate portions  of  the  reversion,  and  it  will  be  destroyed  by  such 
dissection  of  the  reversion.**  If  the  grantor  is  in  possession 
of  the  property  at  the  time  of  the  breach,  no  act  of  entry 
is  required  of  him,  in  order  to  defeat  the  estate.  But  if  he 
is  out  of  possession,  he  must  enter,  or  do  acts  equivalent  to 
entry,  with  the  express  intention  of  thereby  working  a  forfeit- 
ure. Entry  without  such  an  intention  would  have  no  effect.^" 
The  right  of  entry  may  be  exercised,  even  though  the  breach 
of  the  condition  has  worked  no  material  injury  to  the  grantor. 

<8  Co.  Lit.  214  a;  Hooper  v.  Cummings,  45  Me.  359;  Gray  v.  Blanch- 
ard,  8  Pick.  284 ;  Guild  V.  Richards,  IG  Gray,  309 ;  Gilbert  v.  Peteler,  38 
N.  Y.  165;  Nicholl  v.  N.  Y.  &  Erie  R.  R.,  12  Barb.  461;  s.  c.  12  N.  Y. 
132;  Warner  v.  Bennett,  31  Conn.  478;  Cross  v.  Carson,  8  Blachf.  138; 
Smith  V.  Brannan,  13  Cal.  107;  Hayward  v.  Kinney,  84  Mich.  591. 

47  Co.  Lit.  215  a;  1  Washburn  on  Real  Prop.  476;  Fenn  v.  Smart,  12 
East.  444;  Lewes  v.  Ridge,  Cro.  Eliz.  863;  Burden  v.  Thayer,  3  Mete. 
76;  Trask  v.  Wheeler,  7  Allen,  111;  Plumleigh  v.  Cook,  13  111.  669. 

*8  2  Washburn  on  Real  Prop.   13;   Co.  Lit.  214. 

4»Co.  Lit.  215  a;  Taylor's  L.  &  T.,  Sec.  296;  Wright  v.  Burroughs,  3 
Mann.  Gr.  &  S.  700;  Doe  v.  Lewis,  5  Ad,  &  El.  277;  s.  c.  Eng.  C.  L. 
277;  Cruger  v.  McLaury,  41  N.  Y.  225. 

50  Andrews  v.  Senter,  32  Me.  394 ;  Willard  V.  Henry,  2  N.  H.  120 ;  Rol- 
lins V.  Riley,  44  N.  H.  13;  Bowen  V.  Bowen,  18  Conn.  535;  Hamilton  i'. 
Elliott,  5  Serg.  &  R.  375;  Richter  v.  Richter,  111  Ind.  456.  And  where 
he  is  in  possession,  his  retention  of  possession  after  the  breach  will  not 
necessarily  work  a  forfeiture.  He  may,  even  under  such  circumstances, 
waive  the  breach,  and  thus  prevent  a  forfeiture.  Guild  v.  Richards,  16 
Gray,  317;  Hubbard  v.  Hubbard,  97  Mass.  192. 
280 


CH.    X.]  ESTATES    UPON    CONDITION.  §    208 

And  he  can  exercise  it,  notwithstanding  he  may  have  other 
equally  effective  remedies.'^^ 

§  208.  Waiver  of  performance. —  If  a  party,  who  is  entitled 
to  the  right  of  entry,  waives  the  performance  by  an  actual 
release  of  the  condition  or  by  an  express  license,  the  condi- 
tion is  gone,  and  he  cannot  take  advantage  of  any  subsequent 
breach.  But  a  mere  acquiescence,  without  actual  license, 
would  only  constitute  a  waiver  of  the  present  breach,  and  the 
right  of  entry  for  subsequent  breaches  would  survive.^-  This 
waiver  may  result  from  acts,  as  well  as  from  agreements. 
Thus  if  there  is  a  condition  attached  to  a  lease  against  its  as- 
signment, the  subsequent  acceptance  of  rent  from  the  assignee, 
or  the  beginning  of  an  action  for  rent  accruing  after  the 
breach,  will  constitute  a  waiver  of  the  breach.^^  But  mere 
delay  in  making  the  entry  will  not  have  the  effect  of  a  waiver, 
unless  such  apparent  acquiescence  is  sufficient  to  induce  the 

51  Gray  v.  Blanchard,  8  Pick.  284;  Stuyvesant  v.  Mayor  of  N.  Y.,  11 
Paige  Ch.  414;  2  Washburn  on  Real  Prop.  17,  18.  But  where  the 
grantee  is  ready  and  willing  to  comply  with  a  condition  for  the  gran- 
tor's support  and  the  grantor  has  voluntarily  left  the  premises,  to 
which  the  condition  was  attached,  a  forfeiture  will  not  be  enforced  for 
breach  of  this  condition.  Wolcott  V.  Wolcott  (Mich.  1903),  95  N.  W. 
Rep.  740. 

02  2  Washburn  on  Real  Prop.  19;  Co.  Lit.  211  b;  Andrews  V.  Senter, 
32  Me.  397;  Gray  v.  Blanchard,  8  Pick.  284;  Hubbard  v.  Hubbard,  97 
Mass.  192;  Doe  v.  Gladwin,  6  Q.  B.  (51  Eng.  C.  L.)  953;  Guild  v. 
Richards,  16  Gray,  326;  Doe  v.  Jones,  5  Exch.  498;  Doe  V.  Peck,  1  B. 
&  Ad.  (20  Eng.  C.  L.)  428;  Jackson  V.  Crysler,  1  Johns.  126;  Gluck 
r.  Elkan,  36  Minn.  80. 

03  Hubbard  v.  Hubbard,  97  Mass.  192 ;  Coon  v.  Brecket,  2  N.  H.  153 ; 
Jackson  V.  Crysler,  1  Johns.  126;  Crouch  V.  Wabash,  etc.,  R.  R.  Co.,  22 
Mo.  App.  315.  But  it  has  been  held,  and  perhaps  it  is  the  better 
opinion,  that  in  order  that  the  acceptance  of  rent  may  constitute  a 
waiver  of  forfeiture  for  non-payment  of  rent,  it  must  be  rent  accruing 
after  the  breach.  Jackson  v.  Allen,  3  Cow.  220;  Hunter  v.  Osterhout, 
11  Barb.  33;  Price  v.  Worwood,  4  H.  &  N.  512;  Green's  Case,  Cro. 
Eliz.  1;  «.  c.  1  I>eon.  262.  See  Downes  v.  Turner,  2  Salk.  597;  Dum- 
por's  Case,  4  Rep.  110;  «.  c.  1  Smith's  Ld.  Cas.  note;  Horn  v.  Peterer, 
16  Mo.  App.  438 ;  Silva  v.  Campbell,  84  Cal.  420. 

281 


§    209  ESTATES   UPON    CONDITION.  [PART   I. 

errantee  to  incur  expenses,  and  the  subsequent  exercise  of 
the  right  of  entry  would  in  consequence  work  a  legal  fraud 
upon  him.  Thus,  where  in  a  grant  to  a  railroad  the  condition 
was,  that  the  road  should  be  finished  within  a  certain  time, 
the  grantor  stood  by  and  acquiesced  in  the  continuance  of  the 
work  after  the  expiration  of  the  time  stipulated,  the  right 
of  entry  was  held  to  be  waived  under  the  doctrine  of  estoppel. 
But,  except  in  special  cases  like  this,  only  affirmative  acts  and 
express  agreements  by  the  grantor  will  have  the  effect  of  a 
waiver.^*  But  the  waiver  of  a  condition  precedent  cannot 
have  the  effect  of  passing  to  the  grantee  the  title  of  the  land. 
The  grantee  can  under  the  same  deed  only  acquire  the  title 
by  the  performance  of  the  condition  precedent;  its  perform- 
ance is  not  a  conveyance."**  However  effective  a  waiver  of  en- 
try for  forfeiture  may  have  upon  the  condition,  it  would 
have  no  effect  upon  the  right  of  action  for  the  breach  of  a 
covenant,  which  is  caused  by  the  same  act  which  constituted 
a  breach  of  the  condition.'*" 

§  209.  Equitable  relief  against  forfeiture. —  As  a  general 
proposition,  equity  will  neither  relieve  against,  nor  enforce  a 
forfeiture.  It  simply  leaves  the  parties  to  their  remedies  at 
law.  Where  the  breach  is  the  result  of  an  unlooked-for  acci- 
dent, and  where  the  damages  resulting  therefrom  can  be  ac- 
curately estimated  by  the  court,  as  where  the  condition  calls 
for  the  payment  of  a  sum  of  money  at  a  particular  time,  it 
may  be  a  mortgage,  or  a  rent  reserved,  equity  will  prevent  a 

84l>udlow  V.  N.  Y.  &  Harlem  R.  R.,  12  Barb.  440.  See  Williams  v. 
Dakin,  22  Wend.  209;  Jaekson  v.  Crysler,  1  Johns.  126;  Sharon  Iron  Co. 
r.  City  of  Erie,  41  Pa.  St.  349;  Gray  v.  Blanchard,  8  Pick.  284;  Doe 
V.  Galdwin,  6  Q.  B.  (51  Eng.  C.  L.)  9.53;  Doe  v.  Beck.  1  B.  &  Ad.  (20 
Enjr.  C.  L.)  428;  D-?  r.  Jones,  5  Exch.  498;  D\iffield  v.  Hue.  129  Pa. 
St.  94;  Younar  v.  Gay,  41  La.  An.  758.  A  purchase  by  the  remainder- 
man, from  one  of  two  life  tenants,  where  both  hold  upon  conditions 
apainst  alienation,  is  rrt  a  waiver  of  the  condition  as  to  the  other 
life  tenant.     Lewis  f.  Lewis.  76  Conn.  586,  57  Atl.  Rep.  735. 

56  Johnson  r.  Warren   (Mich.),  42  N.  W.  Rep.  74. 

B«  Spencer  r.  Dougherty,  23  111.  App.  399. 
282 


CH.    X.]  ESTATES    UPON*    CONDITION.  §    210 

forfeiture  and  decree,  instead  thereof,  as  compensation  in 
damages,  the  payment  of  the  sum  of  money,  together  with 
interest  for  the  time  which  has  elapsed. ^^  But  if  the  condi- 
tion be  some  act,  collateral  to  the  grant,  and  one  which  cannot 
be  estimated  in  damages,  as  where  the  condition  is  to  repair, 
or  against  the  acquisition  of  rights  of  easement  by  third  par- 
ties; or  where  the  breach  is  not  the  result  of  inevitable  acci- 
dent, but  is  willfully  or  negligently  committed,  equity  will 
not  interfere.  °* 

§  210.  Estate  upon  condition  distingniished  from  trusts. —  It 
is  sometimes  difficult  in  devises,  to  ascertain  whether  the  tes- 
tator intended  to  create  an  estate  upon  condition,  or  one  upon 
trust.  If  he  intended  the  former,  there  can  be  no  relief 
against  forfeiture,  except  as  already  explained,  nor  can  per- 
formance of  the  condition  be  enforced.  But  if  an  estate  upon 
trust  was  intended,  and  what  appeared  to  be  conditions  were 
directions  to  trustees,  explanatory  of  what  they  should  do 
with  the  estate,  a  failure  to  perform  would  not  result  in  an 

sTGoodtitle  v.  Holdfast,  2  Strange,  900;  Hill  v.  Barclay,  18  Ves.  56; 
Stone  V.  Ellis,  9  Cush.  95;  Atkins  V.  Chilson,  11  Mete.  112;  Hancock  v. 
Carlton,  6  Gray,  39;  Bethlehem  v.  Annis,  40  N.  H.  34;  City  Bank  v. 
Smith,  3  Gill  &  J.  265 ;  Skinner  V.  Dayton,  2  Johns.  Ch.  526 ;  Warner  v. 
Bennett,  31  Conn.  478;  Williams  V.  Angell,  7  R.  I.  152;  Beaty  v. 
Harkey,  2  Smed.  &  M.  563. 

58  Hill  17.  Barclay,  18  Ves.  56;  Descarlett  v.  Dennett,  9  Mod.  22; 
Elliott  V.  Turner,  13  Sim.  Ch.  485;  Wafer  v.  Mocato,  9  Mod.  112; 
Reynolds  V.  Pitt,  2  Price,  212;  Hancock  V.  Carlton,  6  Gray,  39;  Henry 
V.  Tupper,  29  Vt.  56;  Skinner  v.  Dayton,  2  Johns.  Ch.  526;  Livingston 
€.  Thompkins,  4  Johns.  Ch.  431;  Baxter  v.  Lansing,  7  Paige  Ch.  350; 
City  Bank  v.  Smith,  3  Gill  &.  J.  265.  Even  when  equity  will  not  re- 
lieve against  it,  it  will  not  enforce  a  forfeiture,  Bishop.  Pr.  Eq.  Sec. 
181;  Atlas  Bank  V.  Nahant  Bank,  3  Mete.  (Mass.),  582;  Livinston  v. 
Thompkins,  4  Johns.  Ch.  415;  Meigs  App.  62  Pa.  St.  28;  1  Pom.  Eq. 
Jur.  459 ;  Toledo  R.  R.  v.  St.  L.  &  C.  R.  R.,  208  111.  623,  70  N.  E.  Rep. 
715;  Moberly  V.  Trenton,  181  Mo.  637,  81  S.  W.  Rep.  169.  A  suit  for 
relief  from  forfeiture,  estops  the  plaintiff  from  denying  there  was  a  for- 
feiture at  law.  Gordon  v.  Richardson,  185  Mass.  492,  70  N.  E.  Rep. 
1027. 

283 


§  211  ESTATES  UPON   CONDITION.  [PART   I. 

absolute  forfeiture,  but  a  court  of  equity  would  interpose  in 
behalf  of  the  cestui  que  trust  and  enforce  a  performance  of 
those  acts,  which  were  intended  for  his  benefit.  The  conclu- 
sion in  every  case  depends  upon  the  ascertained  intention  of 
the  testator,  and  the  devise  will  in  proper  cases  be  declared 
upon  trust,  instead  of  upon  condition,  though  the  words,  "pro- 
vided," "on  condition,"  etc.,  are  used  in  that  connection.'^* 

§  211.  Same  —  From  estates  upon  limitation  and  conditional 
limitations. —  An  estate  upon  limitation  is  one  which  is  made 
to  determine  absolutely  upon  the  happening  of  some  future 
event  as  an  estate  to  A.,  so  long  as  she  remains  a  widow. 
The  technical  words  generally  used  to  create  a  limitation,  are 
conjunctions  relating  to  time,  such  as  during,  while,  so  long 
as,  until,  etc.  But  these  words  are  not  absolutely  necessary; 
for  where  it  is  necessary,  in  order  to  carry  out  the  in- 
tent of  the  grantor,  to  construe  an  estate  to  be  a  limita- 
tion, it  will  be  done,  even  though  words,  ordinarily  used 
in  the  creation  of  an  estate  upon  condition,  appear  in 
their  stead.""  An  estate  upon  limitation  differs  from  one 
upon  condition  in  this,  that  the  estate  is  determined  ipso 
facto  by  the  happening  of  the  contingency,  and  does  not 
require  any  entry  by  the  grantor  in  order  to  defeat  it.*'^     A 

B»  Stanly  v.  Colt,  5  Wall  (U.  S.)  16.5.  See  Linsee  r.  Mixer,  101 
Mass.  512;  Dorr  v.  Hallaran,  76.  534;  Smith  r.  Brown,  66  Tex.  54.3;  1 
S.  W.  573;  Miller  V.  Board  of  Supervisors  (Miss.),  7  So.  Rep.  429; 
Curtis  V.  Board  of  Education,  43  Kan.  138,  23  Pac.  Rep.  98;  Watterson 
V.  Ury,  5  Ohio  C.  C.  347.  For  a  condition  held  to  be  enforceable  against 
a  beneficiary,  who  took  with  knowledge  thereof,  see  Medical  Est.  of  N.  - 
Y.  t;.  N.  Y.  University,  78  N.  Y.  S.  673,  76  App.  Div.  48. 

60  1  Prest.  Est.  129;  Co.  Lit.  203  b;  Mary  Portington's  Case,  10  Rep. 
42;  Chapin  r.  Harris,  8  Allen,  594;  Ashley  f.  Warner,  11  Gray,  43; 
Owen  r.  Fields,  102  Mass.  105;  Miller  V.  Levi,  44  N.  Y.  489;  Henderson 
V.  Hunter,  .59  Pa.  St.  .340;  Herrick's  Estate,  59  Hun,  616. 

•••i  2  Bla.  Com.  155;  1  Prest.  Est.  456;  2  Washburn  on  Real  Prop  23, 
26;  Fifty  Associates  v.  Howland,  11  Mete.  102;  Proprietors,  etc.,  V. 
Grant,  3  Gray,  142;  Attorney-General  v.  Merrimack  Co.,  14  Gray,  612; 

284  , 


CII.    X.]  ESTATES    UPON    CONDITION.  §    211 

conditional  limitation  is  an  estate  limited  to  take  effect  upon 
the  happening  of  the  contingency,  and  which  takes  the  place 
of  the  estate  which  is  determined  by  such  contingency.  Some 
authors,  among  others,  Mr.  Washburn,  have  used  the  terms 
conditional  limitations  and  limitations  interchangeably,  re- 
ferring in  both  instinces  to  the  estate  which  is  determined 
by  the  happening  of  the  event.®-  But  it  appears  to  be  the 
better  method  to  apply  the  term  conditional  limitation  to  the 
estate  which  takes  effect,  and  limitation  to  the  estate  which  is 
determined.*"'^  A  conditional  limitation  is  an  estate  limited 
to  take  effect  after  the  determination  of  an  estate,  which  in 
the  absence  of  a  limitation  over  would  have  been  an  estate 
upon  condition.  Strictly  speaking,  a  conditional  limitation 
cannot  be  limited  after  an  estate  upon  limitation,  except  where 
the  contingency  which  constitutes  the  limitation,  is  not.  sure 
to  happen  and  the  estate  is  a  fee  upon  limitation.  Thus  in 
a  grant  to  A.  during  widowhood,  and  upon  her  marriage  to 
B.,  A. 's  estate  would  be  an  estate  upon  limitation,  and  con- 
sequently B.'s  estate  would  be  a  good  common-law  re- 
mainder.®* Using  the  term  conditional  limitation  as  indi- 
cating a  future  estate  which  is  to  take  effect  in  derogation 
of  a  preceding  limitation,  it  may  be  stated  here  in  general 
terms,  to  be  more  clearly  explained  in  subsequent  pages,  that 

Owen  V.  Field,  102  Mass.  105;  Miller  v.  Levi,  44  N.  Y.  489;  Wheeler 
I".  Walker,  2  Conn.  196;  Henderson  v.  Huntington,  59  Pa.  St.  340. 

82  2  Washburn  on  Real  Prop.  23,  26. 

83  Mr.  Washburn  quotes  from  Watkins  on  Conveyancing,  to  this 
effect:  "Between  a  condition  and  a  conditional  limitation  there  is  this 
difference:  a  condition  respects  a  destruction  and  determination  of  an 
estate;  a  conditional  limitation  relates  to  the  commencement  of  a  new 
■one.     A  condition  brings  the  estate  back  to  the  grantor  or  his  heirs; 

a  conditional  limitation  carries  it  over  to  a  stranger."  Watkins,  Con- 
vey. 204.  There  can  be  no  limitation  of  a  fee,  after  a  fee,  in  North 
Carolina,  and  where  such  a  provision  is  attempted  the  grantee  of  the 
estate,  takes  a  fee-simple  estate.  Gray  v.  Hawkins,  133  N.  C.  1,  45 
S.  E.  Rep.  363. 

8*2  Washburn  on  Real  Prop.  563;  Fearne  Cont.  Rem.  5,  10.  See 
post.  Sec.  307. 

285 


§  211  ESTATES  UPON  CONDITION.  [PART  I. 

it  was  unknown  to  the  common  law.  The  only  common-law 
future  estate,  which  can  be  created  by  the  same  deed  with 
a  prior  limitation,  is  a  remainder,  and  as  a  remainder  cannot 
be  limited,  which  takes  effect  in  derogation  of  the  preceding 
estate,  conditional  limitations  are  not  recognized  by  the  com- 
mon law.  They  can  only  be  created  as  a  shifting  use,  or  an 
executory  devise.*"* 

85  2  Washburn  on  Real  Prop.  26,  28;  4  Kent's  Com,  128;  1  Prest.  Est. 
50.  See  post.  Sees.  298,  313,  391,  392.  The  common  law  rule  that  a 
conveyance  vesting  title  in  one  person  on  the  death  of  another,  "  with- 
out issue  of  his  body,"  at  his  death,  under  most  statutes  is  changed  so 
that  the  words  of  limitation  are  held  to  mean,  "  issue  living  at  his 
death  "  and  instead  of  a  fee  tail,  at  common  law,  the  grantee  takes 
a  fee-simple,  and  the  limitation  over  is  conditional  on  the  death  of  the 
first  taker  without  living  heirs.  Middlesex  Bank  v.  Field  (Miss.  1904), 
37  So.  Rep.  139;  Yocum  v.  Siler,  160  Mo.  297;  Black  v.  Webb  (Ark. 
1904),  80  S.  W.  Rep.  367. 
286 


CHAPTER  XI. 

MORTGAGES. 

Section      I.  Nature  avd  Classification  of  Mortgages. 

II.  The  Rights  and  Liahilities  of  Mortgagors  and 
Mortgagees. 
III.  Remedies  and  Remedial  Rights  incident  to  a 
Mortgage. 

SECTION  I. 

NATURE  AND  CLASSIFICATION  OF  MORTGAGES. 

Section   212.  Definition. 

213.  Mortgages  by  deposit  of  title  deeds. 

214.  Continued  —  Notice  to  subsequent  purchasers. 

215.  Continued  —  Their  recognition  in  this  country. 

216.  Continued  —  Foreclosure. 

217.  Vendor's  lien. 

218.  Continued  —  Discharge  or  waiver  of  the  lien, 

219.  Continued  —  In  whose  favor  raised. 

220.  Vendee's  lien. 

221.  Enforcement  of  vendor's  and  vendee's  liens. 

222.  Mortgage  at  common  law. 

223.  Vivum  vadium. 

224.  Welsh  mortgage. 
22.5.  Equity  of  redemption. 

226.  The  mortgage  in  equity. 

227.  Influence  of  equity  upon  the  law. 

228.  The  form  of  a  mortgage. 

229.  Execution  of  the  defeasance. 

230.  Form  of  defeasance. 

231.  Agrements  to  repurchase. 

232.  The  defeasance  clause  in  equity. 

233.  The  admissibility  of  parol  evidence. 
2.34.  Contemporaneous  agreements. 

235.  Subsequent  agreements. 

287 


.§   213  MORTGAGES.  [PART  I. 

236.  The  mortgage   debt. 

237.  Mortgages  for  the  support  of  the  mortgagee. 

238.  What  may  be  mortgaged. 

§  212.  Definition. —  A  mortgage  is  an  interest  in  lands, 
given  to  secure  the  payment  of  a  sum  of  money  or  money's 
equivalent.  It  incumbers  the  title  of  the  land  and  enablesi 
the  creditor  or  obligee  to  satisfy  his  claim  by  a  sale  of  the- 
land,  t)r  by  a  forfeiture  of  the  land  to  the  mortgagee.  Be- 
fore explaining  the  character  and  incidents  of  the  common- 
law  mortgage,  which  will  constitute  the  principal  subject  of 
the  present  chapter,  reference  will  be  made  to  several  kinds 
of  incumbrances  upon  land,  which,  although  generally  called 
mortgages,  are  not  strictly  such.     The  first  of  these  is  the — 

§  213.  Mortgage  by  deposit  of  title  deeds. —  This  is  an  an- 
cient security  for  debt,  which  at  one  time  was  in  general  use 
in  England,  and  even  now  is  employed  there  to  some  extent. 
The  deposit  of  the  title  deeds  of  a  tract  of  land  with  the 
creditor  secured  to  him  in  equity  a  lien  upon  the  land  for 
the  amount  of  the  debt.  It  was  looked  upon  in  equity  as  an 
agreement  to  execute  a  mortgage  which  would  be  enforced 
against  the  depositor  and  all  other  persons  claiming  under 
him,  except  subsequent  purchasers  and  incumbrancers  for 
value  and  without  notice.^  Although  it  has  been  strongly 
objected  to,  as  violating  the  Statute  of  Frauds,  it  is  now 
definitely  settled  in  England  that  the  mortgage  by  deposit  of 
title  deeds  does  not  come  within  the  operation  of  the  statute.* 

1  Story's  Eq.  Jur.,  Sec.  1020 ;  2  Washburn  on  Real  Prop.  83 ;  4  Kent's 
Com.  150,  115;  Russell  v.  Russell,  1  Bro.  C.  C.  269;  Ex  jxirte  Lang- 
stone,  17  Ves.  230;  Pain  v.  Smith,  2  Myl.  &  K.  417;  Mandeville  V. 
Welch,  5  Wheat.  277;  Roberts  v.  Craft,  24  Beav.  223;  Edge  v.  Worth- 
ington,  Cox,  211;  Ex  parte  Corning,  9  Ves.  Jr.  115;  Carey  v.  Rawson, 
8  Mass.  159;  Jarvis  v.  Dutcher,  16  Wis.  307. 

2Whitebread,  ex  parte,  19  Ves.  209;  Haigh,  ex  parte,  11  Ves.  403; 
Ex  parte  Hooper,  19  Ves.  477;  Norris  v.  Wilkinson,  19  Ves.  192;  Rus- 
sell V.  Russell,  1  Bro.  C.  C.  269.  In  Pennsylvania,  a  written  agree- 
ment must  accompany  the  deposit  of  the  title  deeds,  in  order  that  the 
transaction  may  create  a  mortgage.  Luch's  Appeal,  44  Pa.  St.  519; 
288 


CH.   XI.]  MORTGAGES.  §   213 

The  mere  possession  by  the  creditor  of. the  debtor's  muni- 
ments of  title  will  not  raise  for  the  former  a  lien  upon  the 
land.  They  must  have  been  deposited  with  him  with  the  ex- 
press intention  of  providing  a  lien,  in  order  that  the  pos- 
session may  have  that  effect.^  But  it  is  not  necessary  that 
all  the  title  deeds  in  the  chain  of  title  should  be  deposited. 
A  s;ingle  title  deed  would  be  sufficient  as  against  the  de- 
positor, and  it  would  only  be  invalid  as  to  those,  who  were 
fairly  misled  by  the  fact  that  the  mortgagor  or  depositor 
was  in  possession  of  the  other  deed.*  And  as  against  the 
mortgagor  and  all  others  claiming  under  him  with  notice, 
the  mere  agreement  to  deposit  the  title-deeds  as  security 
would  suffice  to  make  the  debt  an  equitable  charge  upon  the 
estate,  if  it  be  evidenced  by  some  writing.^ 

Edwards  v.  Trumbull,  50  Pa.  St.  509.  "The  plaintiffs  brought  suit 
on  an  agreement  reciting  that  defendants  had  assigned  to  them  a 
mortgage  and  certain  policies  of  insurance  to  secure  a  loan,  with  the 
agreement  on  plaintiff's  pait  to  reassign,  if  the  loan  was  paid  within  a 
year.  Defendants  authorized  plaintiffs,  if  the  loan  was  not  so  paid,  to 
realize  a  surrender  value  of  the  policies,  and  sell  the  mortgage,  the  pro- 
ceeds to  be  applied  on  tlic  debt;  and,  if  the  sum  realized  was  insuf- 
ficient to  pay  the  debt  in  full ;  defendants  agreed  to  pay  any  deficiency. 
It  was  held  that  plaintiffs  could  not  sue  to  recover  the  full  amount 
■without  first  attempting  to  realize  on  the  collateral."  Klee  V.  Trum- 
bull  (Pa.),  CO  Atl.  Rep.  157. 

sNorris  v.  Wilkinson,  12  Ves.  162;  Bozon  V.  Williams,  3  Y.  &  J. 
150;  James  V.  Rice,  23  Eng.  L.  &  E.  567;  Chapman  v.  Chapman,  3 
Eng.  L.  &  E.  70;  s.  c.  13  Beav.  308;  Ex  parte  Bruce,  1  Rose,  374;  Ex 
parte  Wright,  19  Ves.  258;  Ex  parte  Langston,  17  Ves.  227;  Lucas  v. 
Darren,  7  Taunt.  278;  Mandeville  v.  Welch,  5  Wheat.  277;  Story's  Eq. 
Jur.,  Sec.  1020.  If  the  intention  is  declared  by  a  memorandum  in 
writing,  it  cannot  be  controlled  by  parol  evidence.  Ex  parte  Coombe, 
17  Ves.  369;  Baynard  v.  Woolley,  20  Beav.  583. 

*  Ex  parte  Chippendale,  2  Mont.  &  A.  299;  Ex  parte  Wetherall,  11 
Ves.  398;  Lacon  v.  Allen,  3  Drew,  582;  Roberts  v.  Crofty,  24  Beav. 
253;  ft.  c.  De  G.  &  J.  1. 

0  Edwards,  ex  parte,  1  Deac.  611,  4  Kent's  Com.  151.  An  assign- 
ment of  a  lease,  to  secure  a  debt,  is  held  to  be  a  mortgage,  in  Massa- 
chusetts. Providence  Steamboat  Co,  r.  Fall  River  I.  Co.,  187  Mass.  45,  72 
N.  E.  Rep.  338. 

19  289 


§    215  MORTGAGES.  [PVKT   I. 

§  214.  Continued  —  Notice  to  subsequent  purchasers. —  I  f 
the  subsequent  purchaser  for  value  has  received  no  notice 
of  the  existence  of  this  equitable  mortgage,  it  cannot  be  en- 
forced against  him  and  the  land  in  his  hands.  What  will 
be  sufficient  notice  to  such  a  purchaser  would  depend  upon 
the  circiunstances  of  each  particular  case.  In  England, 
where  there  is  no  registration  law,  and  the  purchaser  is  ac- 
customed to  depend  upon  the  original  title  deeds  in  inves- 
tigating the  title  to  lands,  the  absence  of  these  deeds  or  of 
any  of  them  would  constitute  sufficient  notice  to  put  the 
purchaser  on  his  inquiry.  But  the  burden  of  proof  is  on 
the  equitable  mortgagee  to  show  that  the  purchaser  has  re- 
ceived notice  of  the  mortgage."  In  this  country,  however, 
where  all  deeds  of  conveyance  are  required  to  be  recorded, 
in  order  to  give  constructive  notice  to  subsequent  purchasers, 
actual  notice  of  the  deposit  of  the  deeds  must  be  brought  to 
such  purchasers,  in  order  to  bind  the  land  in  their  hands. 
The  purchaser  in  this  country  is  not  required  to  look  be- 
yond the  record  for  the  evidences  of  title.^ 

§  215.  Continued  —  Their  recognition  in  this  country. — 
The  equitable  mortgage  by  deposit  of  title  deeds  is  recog- 
nized in  some  of  the  States  of  this  country,  but  in  view  of 
the  general  prevalence  of  the  recording  law,  it  is  at  best  a 
very  inefficacious  kind  of  security.  It  can  never  be  relied 
upon;  and  is  rarely,  if  ever  at  the  present  day,  met  with  in 
practice.  Its  value  as  a  security  is  destroyed,  as  soon  as 
the  land  has  been  sold  or  mortgaged  to  one  having  no  actual 

"Herrick  v.  Atwood,  25  Beav.  212;  Coyler  v.  Finch,  5  H.  L.  Cas.  924; 
Ex  parte  Hardy,  2  Deac.  &  C.  363;  Hiern  r.  Mill,  13  Ves.  114;  Hewitt 
V.  Loosemore,  9  Eng.  L.  &  E.  35;  Story's  Eq.  Jur.,  Sec.  1020;  Jones, 
Mortg.,  Sec.  179;  Ex  parte  Whitebread,  19  Ves.  209;  Ex  parte  Wright, 
19  Ves.  255. 

7  Story's  Eq.  Jur.,  Sec.  1020;  Jones,  Mortg.,  Sec.  179;  Hall  v.  McDuff,. 
24  Me.  311;  Whitworth  v.  Gangain,  3  Hare  416;  Berry  r.  Mutual  Ins. 
Co.,   2   Johns.   Ch.   604;    Luch's   Appeal,   44   Pa.    St.   522;    Edwards   t?. 
Trumbull,  50  Pa.  St.  612;  Probasco  v.  Johnson,  2  Disney  96. 
290 


CH.    XI.]  '  MORTGAGES.  §    216 

notice  of  the  deposit.  And  it  being  a  purely  equitable  in- 
terest, not  even  an  equitable  estate,  the  mortgagee  cannot 
have  any  instrument  of  notice  recorded  for  the  purpose  of 
giving  constructive  notice  of  its  existence.  The  mortgage 
is,  however,  recognized  in  Maine,  Rhode  Island,  New  York, 
New  Jersey,  South  Carolina,  Georgia,  Wisconsin,  and  in  the 
United  States  Courts.*  While  in  Pennsylvania,  Vermont, 
Kentucky,  Missouri,  Ohio  and  Tennessee,  the  doctrine  has 
been  repudiated.® 

§  216.  Continued  —  Foreclosure. —  Since  the  mortgage  by 
deposit  of  title  deeds  is  only  an  equitable  lien,  it  can  be  en- 
forced only  in  a  court  of  equity,  and  it  is  a  matter  of  doubt 
in  the  English  courts,  whether  the  decree  should  be  for  fore- 
closure, or  simply  direct  a  sale  of  the  premises,  and  the  ap- 

8  Hall  f.  McDuff,  24  Me.  311;  Hackett  v.  Ptcynolds,  4  R.  I.  512;  Rock- 
well V.  Hobby,  2  Sandf.  Ch.  9;  Stoddard  v.  Hart,  23  N.  Y.  561;  Mounce 
V.  ByaVs,  16  Ga.  460;  Williams  v.  Stratton,  10  Smed.  &  M.  418;  Welsh 
f.  Usher,  2  Hill  (S.  C.)  lGG-170;  Mandeville  v.  Welch,  5  Wheat.  277; 
Rockwell  V.  Hobby,  2  Sandf.  Ch.  9;  Griffin  V.  Griffin,  18  N.  J.  Eq.  104; 
Welsh  V.  Usher,  2  Hill  Ch.  167,  170,  per  Harper  J.;  Williams  v.  Strai- 
ten, 10  Sm.  &  Mar.  418,  426;  First  Nat.  Bk.  v.  Caldwell,  4  Dillon,  314. 

oShitz  V.  Dieffenback,  3  Pa.  St.  233;  Strauss'  Appeal,  49  Pa.  St.  258; 
Van  Meter  v.  McFaddin,  8  B.  Mon.  438;  Meador  V.  Meador,  3  Heisk. 
.562;  Gothard  v.  Flynn,  25  Miss.  58.  But  compare  contra,  Williams 
V.  Stratton,  10  Sm.  &  Mar.  418;  Thomas'  Appeal,  30  Pa.  St.  378;  Ed- 
wards' Exrs.  V.  Trumbull,  50  Pa.  St.  509;  Bowers  r.  Oyster,  3  P.  &  W. 
239.  But  in  Pennsylvania,  if  the  deposit  is  accompanied  by  an  instru- 
ment, declaring  the  purpose  of  the  deposit  it  will  be  a  good,  equitable 
mortgage.  Luch's  Appeal,  44  Pa.  St.  522;  Edwards  v.  Trumbull,  56 
Pa.  St.  512.  For  validity  of  assignment  of  equitable  mortgage  from 
deposit  of  school-land  certificates,  see  Mowrey  i".  Wood,  12  Wis.  413. 
And  generally,  on  this  subject,  see  10  Am.  &  Eng.  Dec.  in  Equity,  p. 
065.  The  doctrine  that  a  deposit  of  title  deeds  constitutes  a  mortgage 
is  equity,  is  repudiated,  in  Missouri,  as  it  is  asserted  that  such  a  doc- 
trine would  be  in  conflict  with  the  universally  recognized  system  of 
public  registration  and  the  statute  of  frauds.  Hackett  V.  Watts,  138 
Mo.  .502.  See  also,  Meador  f.  Meador,  3  Heisk.  (Tenn.)  562;  Gothard 
r.  Flynn,  25  Miss.  58;  Shitz  v.  Diflfenbach,  3  Pa.  St.  233;  Van  Meter  V. 
McFaddin,  8  B.  Mon.  (Ky. )  438.  For  recognition  of  equitable  mort- 
gage in  New  York,  see,  Matthew  v  Dernonnell,  89  N.  Y.  S.  493. 

291 


§    217  MORTGAGES.  [PART   I. 

plication  of  the  proceeds  to  the  liquidation  of  the  debt.  But 
the  later  English  eases  hold  that  the  mortgagee  of  such  a 
mortgage  has  the  same  rights  of  foreclosure  as  any  other 
mortgagee.^" 

§  217.  Vendor's  lien. —  This  is  also  an  equitable  lien  recog- 
nized in  favor  of  the  vendor  as  a  security  for  the  purchase- 
money.  It  is  founded  on  the  equitable  theory  that,  until  the 
payment  of  the  purchase-money,  the  vendee  holds  the  land 
as  trustee  of  the  vendor  for  the  purpose  of  a  security.  No 
agreement  is  necessary  for  its  creation ;  it  is  presumed  to 
exist,  until  the  contrary  is  shown.^^  This  lien  has  been  gen- 
erally recognized  in  the  States  of  tliis  country, ^^  but  it  has 

1"  Backhouse  v.  Charlton,  L.  R.  8  Ch.  D.  444;  Carter  v.  Wake,  L.  R, 
4  Ch.  D.  60.5;  James  f.  James,  L.  R.  16  Eq.  153;  Pryce  V.  Bury,  L.  R. 
16  Eq.  1.53  n.;  Adams  Eq.  12,5;  Pain  V.  Smith,  2  M.  &  K.  417;'Brockle- 
hurst  r.  Jessop,  7  Sim.  438;  Price  r.  Carver,  3  M.  &  C.  157;  Lister  v. 
Turner,  5  Hare  281;  Tucl.ley  v.  Thompson,  1  Johns.  &  H.  126;  James 
r.  James,  L.  R.  16  Eq.  153;  Redmagne  v.  Forster,  L.  R.  4  Eq.  467.  In 
Jarvis  r.  Dutcher,  16  Wis.  307,  it  was  held  that  the  decree  should  he  for 
a  sale  of  the  premises.  See  to  the  same  effect,  Hackett  V.  Reynolds,  4 
R.  I.  512;  Mowry  v.  Wood,  12  Wis.  413. 

11  Walker  Am.  Law,  206;  Mackreth  v.  Symmons,  15  Ves.  339;  Chap- 
man r.  Tanner,  1  Vern.  267;  Blackburn  v.  Gregson,  1  Bro.  C.  C.  420; 
Payne  r.  Atterbury,  Harr.  (Mich.)  414;  Warren  v.  Fenn,  28  Barb.  334; 
Wilson  r.  Lyon,  51  111.  166;  Truebody  v.  Jacobson,  2  Cal.  269;  Dodge 
r.  Evans.  43  Miss.  570;  Schnebly  v.  Ragan,  7  Gill  &  J.  120;  Ahrend 
r.  Odiorne,  118  Mass.  266;  Cowfclt  V.  Bovver,  7  Serg.  &  R.  64;  Story's 
Eq.  Jr..  See.  1217;  Moreton  r.  Harrison,  1  Bland.  Ch.  491;  Iglehart  V. 
Armiger,  1  Bland.  Ch.  519,  524,  525,  2  Story's  Eq.  Jur.,  Sees.  1218 
et  serf.  1217;  Snell's  Eq.  136  (5  ed.)  ;  Perry  on  Trusts,  Sees.  231,  232; 
Ringgold  V.  Bryan,  3  Md.  Ch.  488. 

12  In  Alabama,  Arkansas,  California,  Colorado,  District  of  Columbia, 
Florida,  Illinois,  Indiana,  Iowa,  Kentucky.  Maryland,  Michigan,  Minne- 
sota, Mississippi,  Missouri,  New  Jersey,  New  York,  Ohio,  Tennessee, 
Texas,  Wisconsin.  Haley  v.  Bennett,  5  Port.  452;  Pylant  v.  Reeves,  53 
Ala.  132;  Thames  r.  Caldwell,  60  Id.  644;  Blankhead  v.  Owen,  60  Td. 
457;  Bizzell  V.  Nix,  60  Id.  281;  Roper  v.  McCook,  7  Ala.  318;  Thurman 
r.  Stoddard,  63  Id.  336;  Chapman  v.  Lee,  64  Id.  483;  Carver  v.  Eads, 
65  Id.  190;  Shall  v.  Ciscoe,  18  Ark.  142;  Harris  V.  Hanie,  37  Id.  348; 
Salmon  r.  Hoffman,  2  Cal.  138;  Gallagher  v.  Mars,  50  Id.  23;   Wells 

202 


CH.    XI.]  MORTGAGES.  §    217 

been  denied  or  left  in  doubt  in  some.^^     The  decisions  differ 

V.  Barter,  56  Id.  342;  Francis  f.  Wells,  2  Col.  660;  Ford  v.  Smith, 
1  McArthur  592;  Bradford  v.  Marvin,  2  Flor.  463;  Woods  r.  Bailey, 
3  Id.  41;  Keith  v.  Horner,  42  111.  524;  Henson  v.  Westcott,  82  Id.  224; 
Small  V.  Stagg,  95  Id.  39;  Manning  v.  Frazier,  96  Id.  279;  Yayan  v. 
Shriner,  26  Ind.  364;  Anderson  r.  Donnell,  66  Id.  150;  Higgins  r.  Ken- 
dall, 73  Id.  522 ;  Richards  f.  McPherson,  74  Id.  158 ;  Lagow  r.  Badollet,, 

1  Blackf.  416;  Deibler  r.  Barwick,  4  Id.  339;  Tinsley  i:  Tinsley,  52  Iowa 
14;  Stuart  r.  Harrison,  52  Id.  511;  Tiernan  v.  Thurman,  14  B.  Mon. 
277,  284;  Gritton  v.  McDonald,  3  Mete.  252;  Biirrus  r.  Roulhac's  Admx., 

2  Bush  39;  Phillips  v.  Skinner,  6  Bush  662;  Fowler  r.  Heirs  of  Rust.  2 
A.  K.  Marsh  284;  Thornton  v.  Knox's  Exr.,  6  B.  Mon.  74;  Muir  v. 
Cross,  10"/d.  277;  Magruder  v.  Peter,  11  Gill  &  J.  217;  Repp  r.  Repp^ 
12  Id.  341;  Carr  V.  Hobbs,  11  Md.  285;  Hummer  v.  Schott,  21  Id.  307  > 
Moreton  r.  Harrison,  1  Bland  Ch.  491;  White  l".  Casenave's  Heirs,  1 
Har.  &  J.  106;  Ghiselin  V.  Fergusson,  4  Id.  522;  Pratt  r.  Vanwyck's 
Exrs.,  6  Gill  &  J.  495;  Payne  r.  Avery,  21  Mich.  .524;  Palmer  r.  Ster- 
ling, 41  Id.  218;  Hiscock  f.  Norton,  42  Id.  320;  Daughaday  r.  Paine, 
6  Minn.  306;  Dawson  l*.  Girard  L.  Ins.  Co.,  27  Minn.  411;  Dodge  V. 
Evans,  43  Miss.  570;  Perkins  v.  Gibson,  51  Miss.  699;  Tucker  r.  Hadley, 
52  Id.  414;  McLain  V.  Thompson,  52  Id.  418;  Walton  V.  Hargroves,  42 
Id.  18;  Stewart  v.  Ives,  1  Sm.  &  Mar.  197;  March  v.  Turner,  4  Mo. 
253;  Stevens  r.  Rainwater,  4  Mo.  App.  292;  Davenport  r.  Murray,  68 
Mo.  198;  Pearl  r.  Hervey,  70  Id.  160;  Armstrong  r.  Ross,  20  N.  J.  Eq. 
109;  Warren  v.  Fenn,  28  Barb.  333;  Dubois  v.  Hull,  43  Id.  26;  Smith 
V.  Smith,  9  Abb.  Pr.  (n.  s.)  420;  Chase  r.  Peck,  21  N.  Y.  581;  Hazel- 
tine  V.  Moore,  21  Hun  355;  Stafford  r.  Van  Rensselaer,  9  Cow.  316; 
White  V.  Williams,  1  Paige  502;  Mayham  r.  Coombs,  14  Ohio  428;  Niel' 
V.  Kinney,  11  Ohio  St.  58;  Pease  v.  Kelly,  3  Oreg.  417;  Brown  tv 
Vanlier,  7  Humph.  239;  Ellis  v.  Temple,  4  Coldw.  315;  Choate  v. 
Tighe,  10  Heisk.  621;  Eskridge  f.  McClure,  2  Yerg.  84;  Burgess  V. 
Millican,  50  Tex.  397;  Waldrom  v.  Zacharie,  54  Id.  503;  Robinson  V. 
MeWhirter,  52  Id.  201;  Willard  v.  Reas,  26  Wis.  540;  Madden  .-. 
Barnes,  45  Id.  135;  Lavender  V.  Abbott,  .30  Ark.  172;  Neal  r.  Speigle, 
33  Id.  63;  Mayes  v.  Hendry,  33  Id.  240;  English  v.  Russell,  Hempst.  .35; 
Kent  V.  Gerhard,  12  R.  I.  92.  The  vendor's  lien  for  purchase  money 
has  been  recognized  in  the  following  late  cases:  Borror  v.  Carrier  (Ind. 
1905),  73  N.  E.  Rep.  123;  Acrce  r.  Stone  (Ala.  1904),  37  So.  Rep.  9.34; 
Dickenson  r.  Duckworth  (Ark.  1905),  85  S.  W.  Rep.  82;  Zieschang  »,. 
Helmke  (Tex.  1904),  84  S.  W.  Rep.  436;  McNeill  v.  Cage,  85  S.  W^ 
Rep.  57;  Wilson  r.  Moore  (Tex.  1904),  85  S.  W.  Rep.  25;  Ford  »\ 
Azill  (Ky.  1905).  85  S.  W.  Rep.  217;  Bryson  V.  Collmer  (Ind.  1004), 
71  N.  E.  Rep.  229. 

13  Denied   and    repudiated   in   Kansas,   Maine,   Massachusetts,    North 

293 


§   217  MORTGAGES.  [PART  I. 

as  to  details,  but  agree  in  respect  to  the  general  features  of 
such  a  lien.  The  vendor's  lien  is  binding  upon  the  vendee, 
and  all  persons  claiming  under  him  who  had  notice  of  the 
lien  or  who  are  not  purchasers  for  value.  A  volunteer  to 
whom  the  land  is  conveyed  without  consideration,  a  widow 
with  her  dower,  and  the  heirs  and  devisees,  cannot  plead  the 

Carolina,  Pennsylvania  and  South  Carolina.  Simpson  v.  Mundee,  3 
Kan.  172;  Greene  r.  Barbard,  18  Id.  518;  Oilman  v.  Brown,  1  Mason 
191,  192,  210;  Pliilbrook  v.  Delano,  29  Me.  410,  415;  Ahrend  v.  Odi- 
orne,  118  Mass.  216;  Wright  v.  Dame,  5  Mete.  603.  See,  Mast  v.  Raper, 
81  N.  C.  330;  McKay  v.  Gillman,  65  Id.  130;  Zentmeyer  v.  Mittower. 
5  Pa.  St.  403;  KaulTelt  V.  Bower,  7  S.  &  R.  64;  Semple  v.  Burd,  7  Id. 
286;  Megargel  V.  Saul,  3  Whart.  19;  Bear  v.  Whistler,  7  Watts.  144, 
147;  Cook  V.  Trimble,  9  Id.  15;  Hepburn  v.  Snyder,  3  Barr  72;  Sprig- 
ner  v.  Walters,  34  Pa.  St.  328 ;  Heist  v.  Baker,  49  Id.  99 ;  Strauss'  Ap- 
peal, 49  Id.  353;  Wragg  v.  Comptroller-Gen.,  2  Desaus  509,  520.  Left 
in  doubt  in  Connecticut,  New  Hampshire  and  Rhode  Island.  Watson  V. 
Wells,  5  Conn.  468;  Chapman  v.  Beardsley,  31  Conn.  115;  Buntin  V. 
French,  16  N.  H.  592;  Arlin  v.  Brown,  44  Id.  102;  Perry  v.  Grant,  10 
R.  I.  334;  Kent  V.  Gerhart,  12  R.  I,  92.  While  in  Georgia,  Vermont, 
Virginia  and  West  Virginia,  although  upheld  judicially,  it  is  now  abol- 
ished by  statute,  except  that  in  the  last  two  States,  it  may  be  reserved 
on  the  face  of  the  deed  of  conveyance.  Ga.  Code  1873,  Sec.  1997; 
Jones  V.  Jones,  56  Ga.  325;  but  see  Drinkwater  V.  Moreman,  61  Id.  395; 
Still  V.  Mayor,  etc.,  27  Id.  502,  504;  Stat.  Laws  of  1851,  Ch.  47,  Gen. 
Stat.  (1862),  Ch.  65,  Sec.  33;  Manly  v.  Slason,  21  Vt.  271,  per  Redfield, 
C.  J.,  Code  Va.  1873,  Ch.  115,  Sec.  1;  Wade  v.  Greenwood,  2  Robt.  475; 
Yancey  V.  Mauck,  15  Gratt.  300;  Cole  v.  Scot,  2  Wash.  141;  Tompkins 
V.  Mitchell,  2  Rand.  428;  Redford  v.  Gibson,  12  Leigh  338;  Kyles  V. 
Tait's  Admr.,  6  Gratt.  44,  W.  Va.  Code  1870,  Ch.  75,  Sec.  1;  Hempfield 
R.  R.  r.  Thornburg,  1  W.  Va.  201.  See  also,  Bailey  r.  Greenleaf,  7 
WTieat.  46;  Chilton  v.  Briaden,  2  Black  458;  McLean  V.  McLean,  10  Pet. 
625;  Gilman  v.  Brown,  4  Wheat.  254;  s.  c.  1  Mason  191;  McLeam  v. 
Wallace,  10  Pet.  625,  640;  Galloway  v.  Finley,  12  Id.  264;  Bush  V. 
Marshall,  6  How.  (U.  S.)  284;  Chilton  t.  Braiden's  Admx.,  2  Black 
458;  Cordova  v.  Hood,  17  Wall.  1,  5.  A  vendee  in  possession  of  land 
holds  it  charged  with  an  equitable  lien  for  the  unpaid  purchase  price, 
in  Indiana.  Borror  v.  Carrier  (1905),  73  N.  E.  Rep.  123.  The  exist- 
ence of  the  vendor's  lien  does  not  depend  upon  the  transfer  of  a  perfect 
legal  title,  but  any  conveyance  which  is  affected  is  sufficient  to  create  a 
lien  for  the  unpaid  purchase  price.  Mully  r.  Karroll  (Ind.  1903),  68 
N.  E.  Rep.  689;  Halvorsen  v.  Halvorsen,  97  N.  W.  Rep  494. 
294 


CH.   XI.]  MORTGAGES.  §   217 

want  of  notice  as  a  defense."  The  decisions,  however,  are 
not  uniform  in  determining  to  what  extent  the  vendor's 
lien  will  be  enforced  against  creditors  of  the  purchaser,  who 
are  not  charged  with  notice.  It  is  certain  that  it  will  pre- 
vail against  an  assignment  for  the  benefit  of  creditors,  if  the 
vendor  enforces  his  lien  by  filing  a  bill  in  equity,  before  the 
assignee  executes  the  trust. ^^  But  where  the  conveyance  is 
direct  to  the  creditor,  or  the  land  is  attached  under  levy  of 
execution  issued  upon  a  judgment  against  the  vendee,  the 
courts  generally  hold  that  the  lien  will  not  prevail.^"     It  is 

"  Pintard  V.  Goodloe,  1  Hempst.  527;  Webb  v.  Robinson,  14  Ga.  16; 
Garson  i*.  Green,  1  Johns.  Ch.  308;  Upshaw  v.  Hargrove,  8  Smed.  & 
M.  286;  Crane  v.  Palmer,  8  Blackf.  12;  Williams  f.  Wood,  1  Humph. 
408;  Besland  v.  Hewitt,  11  Smed.  &  M.  164;  Ellicott  v.  Welch.  2  Bland 
242;  Warner  v.  Van  Alstyne,  3  Paige  Ch.  513;  Newton  v.  McLean,  41 
Barb.  285;  Cole  r.  Scott,  2  Wash.  (Va.)  141;  Bayley  v.  Greenleaf,  7 
Wheat.  46;  Duval  v.  Bibb,  4  Hen.  &  M.  113;  Shirley  f.  Sugar  Refin. 
Co.,  2  Edw.  Ch.  505,  1  Eq.  Lead.  Cas.  477-481;  Graves  V.  Coutant,  31 
N.  J.  Eq.  763;  Simpson  r.  McAllister,  56  Ala.  228;  Stafford  v.  Van 
Rensselaer,  9  Cow.  316;  Magruder  v.  Peter,  11  Gill  &  J.  217;  Tucker  f. 
Hadley,  52  Miss.  414;  McLain  V.  Thompson,  52  Id.  418;  Pylant  v. 
Reeves,  53  Ala.  132;  Carver  V.  Eads,  65  Id.  190;  Higgins  r.  Kendall, 
73  Ind.  522;  Mast  V.  Raper,  81  N.  C.  330;  Whetscl  v.  Roberts,  31  Ohio 
St.  503;  Swan  v.  Benson,  31  Ark.  728;  Dagger  v.  Taylor,  60  Ala.  504; 
Burgess  v.  Green,  64  Id.  509;  Thurman  v.  Stoddard,  63  /(/.  336;  Rus- 
sell V.  Dodson,  6  Ba.xt.  16;  Robinson  v.  McWhirter,  52  Tex.  201;  Dug- 
ger  V.  Taylor,  60  Ala.  504;  Fisk  v.  Potter,  2  Abb.  App.  Dec.  138.  The 
vendor's  lien  is  generally  good  against  a  married  woman's  dower  in- 
terest (Brj'son  r.  Collmer  (Ind.  1904),  71  N.  E.  Rep.  229),  and  all 
others,  except  bona  fide  purchasers.  Bryson  v.  Collmer,  supra;  Flana- 
gan Est.  V.  Land  Co.   (Ore.  1904),  77  Pac.  Rep.  485. 

15  Brown  v.  Vanlier,  7  Humph.  239;  Shirley  v.  Sugar  Refinery,  2 
Edw.  Ch.  505;  Repp  r.  Repp,  12  Gill  &  J.  341;  Truebody  v.  Jacobson, 
2  Cal.  269;  Pearce  r.  Foreman,  29  Ark.  563;  Green  v.  Demoss,  10 
Humph.  371;  Walton  v.  Hargroves,  42  Miss.  18;  Warren  v.  Fenn,  28 
Barb.  333;  Corlies  v.  Howland,  26  N.  J.  Eq.  311;  Bowles  v.  Rogers,  6 
Ves.  95. 

'0  Bayley  v.  Greenleaf,  7  Wheat.  46;  Aldridge  r.  Dunn,  7  Blackf.  249; 
Taylor  t'.  Baldwin,  10  Barb.  626;  Gaun  r.  Chester,  5  Yerg.  205;  Rob- 
erts V.  Rose,  2  Humph.  145;  Roberts  V.  Salisbury,  3  Gill  &.  J.  425;  Cook 
V.  Banker,  50  N.  Y.  655;  Johnson  v.  Cawthorne,  1  Dev.  &  B.  Eq.  32; 

295 


5  217  MORTGAGES.  [PART  I. 

also  very  doubtful  whether  a  subsequent  judgment  creditor 
of  the  grantee  can  claim  priority  for  his  lien  over  the  pur- 
chased land,  or  whether  the  grantor's  lien  can  be  enforced 
against  such  judgment  creditor.  The  courts  differ  on  this 
question,  some  holding  that  the  judgment-lien  has  priority," 
while  other  courts  give  priority  to  the  grantor's  lien.^^  In 
respect  to  what  constitutes  notice  of  the  vendor's  lien,  it 
may  be  stated  that  any  notice,  which  is  sufficient  to  put  a 
reasonable  man  upon  his  inquiry  will  charge  the  purchaser 
with  knowledge  of  the  existence  of  the  lien.  Thus  the  ven- 
dor's possession,  or  a  recital  in  the  deed  that  the  consideration 
has  not  been  paid,  would  be  sufficient  notice  to  bind  the 
land  in  the  purchaser's  hands. ^® 

Adams  v.  Buchanan,  49  Mo.  64;  Allen  v.  Loring,  34  Iowa  499;  Porter 
V.  City  of  Dubuque,  20  Iowa  440. 

iTHulett  V.  Whipple,  58  Barb.  224;  Cook  v.  Kraft,  3  Lans.  512; 
Johnson  v.  Cawthorne,  1  Dev.  &  Bat.  Eq.  32;  Roberts  v.  Rose,  2 
Humph.  145,  147;  Gann  v.  Chester,  5  Yerg.  205;  Allen  v.  Loring,  34 
Iowa  499;  Dawson  v.  Girard  L.  Ins.  Co.,  27  Minn.  411;  Bayley  v. 
Greenleaf,  7  Wheat.  46;  Cook  v.  Banker,  50  N.  Y.  055;  Robinson  V. 
Williams.  22  Id.  380.  When  the  existence  of  the  lien  appears  from  the 
recorded  deed  of  the  vendee,  a  subsequent  purchaser  is  bound  by  it,  the 
same  as  the  original  purchaser.  North  V.  Rogers  (Ky.  1904),  78  S.  W. 
Rep.  165.    But  see.  Fellows  v.  King,  78  S.  W.  Rep.  468. 

18  Parker  v.  Kelley,  10  Sm.  &  Mar.  184;  Thompson  V.  McGill,  Freem. 
Ch.  (Miss.)  401;  Lewis  v.  Caperton's  Exr.,  8  Gratt.  148;  Aldridge  V. 
Dunn,  7  Blackf.  249;  Lamberton  v.  Van  Voorhis,  15  Hun.  336;  Tucker 
V.  Hadley,  52  Miss.  444;  Walton  v.  Hargroves,  42  Id.  18.  A  subse- 
quent mortgagee,  who  knows  that  part  of  the  purchase  price  of  land 
is  unpaid,  takes  subject  thereto  in  New  Jersey.  Harter  v.  Brewing 
Co.,  64  N.  J.  Eq.  155,  53  Atl.  Rep.  560. 

i»McSimmons  v.  Martin,  14  Texas  318;  Tiernan  v.  Thurman,  14  B. 
Mod.  277;  Honore  v.  Bakewell,  6  B.  Mon.  67;  Daughady  v.  Paine,  6 
Minn.  452;  Hopkins  V.  Garrard,  6  B.  Mon.  66;  Thorpe  v.  Dunlap,  4 
Heisk.  674;  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457;  Manly  v.  Glason,  21 
Vt.  271;  Wilson  v.  Lyon,  51  111.  166;  Thornton  v.  Knox,  6  B.  Mon.  74; 
Woodward  v.  Woodward,  7  B.  Mon.  116;  Kilpatrick  v.  Kilpatrick,  23 
Miss.  124;  Parker  v.  Foy,  43  Miss.  260;  McAlpine  v.  Burnett,  23  Texas 
049;  Cordova  v.  Hood,  17  Wall.  1;  Masich  v.  Shearer,  49  Ala.  226. 
See,  King  v.  Quincy  Bank  (Tex.  1902),  69  S.  W.  Rep.  978;  Edwards  v. 
Anderson,  71  S.  W.  Rep.  555;  Worth  v.  Rogers  (Ky.  1904),  78  S.  W. 
Bep.  165. 

296 


CH.    XI.]  MORTGAGES.  §    218 

§  218.  Continued  —  Discharge  or  waiver  of  the  lien. — 
Since  this  lien  is  raised  in  favor  of  the  vendor  on  the  theory 
that  he  is  without  remedy  in  a  court  of  law,  and  the  lien  is 
necessary  to  prevent  his  incurring  the  loss  of  both  the  land 
and  the  purchase-money;  if  the  vendor  shows  by  any  act 
that  he  does  not  rely  upon  the  vendor's  lien  for  protection, 
the  land  will  vest  in  the  vendee,  discharged  of  the  lien. 
The  reservation  of  the  lien  depends  upon  the  intention  of 
the  parties.  In  the  absence  of  any  evidence  to  the  contrary, 
the  law  presumes  that  it  was  their  intention  to  reserve  the 
lien.  This  presumption  may,  however,  be  rebutted.  An 
express  agreement,  that  the  lien  shall  not  be  reserved,  will, 
of  course,  have  that  effect;  and  the  general  rule  in  all  other 
cases  is,  that  nothing  less  than  the  acceptance  of  some  other 
security  will  constitute  a  waiver  of  the  lien.^"  Such  would 
be  a  mortgage  or  pledge  of  the  same  -^  or  other  property,  or 
a  note  with  surety  or  indorser.^^  The  execution  of  an  invalid 
mortgage  on  the  same  land  would  not  discharge  the  lien.-'' 
Nor  would  a  mere  change  in  the  form  of  the  vendee's  in- 
debtedness,  such  as  the   acceptance   of  the   vendee's   bond, 

20  Anderson  v.  Donnell,  66  Ind.  150;  Clark  v.  Stilson,  36  Mich.  482; 
Perry  v.  Grant,  10  R.  I.  334;  Walker  v.  Carroll,  65  Ala.  61;  Brown  t". 
Gilman,  4  Wheat.  255,  290;  Fish  v.  Rowland,  1  Paige  20,  30. 

21  Burgess  v.  Millican,  50  Texas  397;  Escher  v.  Simmons,  54  Id.  269; 
Neal  f.  Speigle,  33  Ark.  63;  Gaylord  v.  Knapp,  15  Hun  87;  Wells  t7. 
Harter,  56  Cal.  342;  Richards  v.  McPherson,  74  Ind.  158;  Little  V. 
Brown,  2  Leigh  353;  Young  i-.  Wood,  11  B.  Mon.  123;  Johnson  v.  Sugg, 
13  Sm.  &  Mar.  346.  See  contra,  Armstrong  v.  Ross,  20  N.  J.  Eq.  109; 
DeForest  v.  Holum,  38  Wis.  516;  Anketel  v.  Converse,  17  Ohio  St.  11; 
Linville  v.  Savage,  58  Mo.  248;  Morris  v.  Pate,  31  Id.  315. 

22Carrico  v.  Farmers',  etc.,  Bk.,  33  Md.  235;  McGonigal  v.  Plummer, 
30  Id.  422;  Campbell  v.  Henry,  45  Miss.  326;  Sanders  v.  McAffee,  41 
Ga.  684;  Baura  V.  Grisby,  21  Cal.  172;  Hazeltine  V.  Moore,  21  Hun, 
355;  Durette  V.  Briggs,  47  Md.  356;  Durham  r.  Heirs  of  Daugherty.  30 
La.  Ann.  pt.  2,  1255;  Haskell  v.  Scott,  56  Ind.  564.  The  acceptance  of 
the  note  from  the  father  of  a  minor  grantee,  is  not  a  waiver  of  the  ven- 
dor's lien,  in  Alabama.    Acree  V.  Stone  (1904),  37  So.  Hep.  934. 

23Fouch  r.  Wilson,  60  Ind.  64;  Camden  t?.  Vail,  23  Cal.  633;  Kent  t'. 
Gerhard,   12-  R.   L  92;   Martin  v.  Cauble,  72   Ind.  67.     A  conveyance 

297 


§   219  MORTGAGES.  [PART  I. 

note,  or  check,^*  unless  the  parties  expressly  a<rree  or  it  is 
provided  by  law  that  sucli  change  in  the  form  of  indebted- 
ness will  operate  as  an  actual  payment  of  the  consideration.'"' 
And,  on  the  other  hand,  if  the  parties  expressly  acrree  or  in- 
tend that  the  vendor's  lien  shall  be  retained  notwithstand- 
ing additional  security  is  given,  the  lien  will  not  be  discharged 
by  the  receipt  of  such  security.-" 

§  219.  Continued  — In  whose  favor  raised. —  It  is  doubtful 
if  any  one  but  the  vendor  and  his  heirs  can  claim  the 
benefit  of  this  lien.  It  certainly  does  not  inure  to  a  third 
person,  who  pays  the  consideration  at  the  request  of  the  pur- 
chaser."    And   whether   it   is  assignable   with   the   vendor's 

from  a  vendee  to  the  voidor,  in  satisfaction  of  the  lien,  will  jrcnerally 
discharge  the  lien  and  the  debt  for  which  it  is  given.  Austin  v.  Laud- 
erdale (Tex.  1004),  83  S.  W.  Rep.  413.  See  also,  McCord  f.  Hames,  85 
S.  W.  Rep.  .504. 

24  Brinkerhoff  V.  Vansciven,  3  Green  Ch.  251 ;  Thornton  r.  Knox's 
Exr..  6  B.  Mon,  74 ;  Aldridge  v.  Dunn,  7  Blackf.  240 ;  Baum  r.  Grigsby, 
21  Cal.  172;  White  v.  Williams,  1  Paige,  .502;  Garson  r.  Green,  1 
Johns.  Ch.  308;  Warren  v.  Fenn,  28  Barb.  333;  Vandoren  r.  Todd,  2 
Green  Ch.  397;  Flinn  v.  Barber.  Gl  Ala.  530;  Bizzell  r.  Nix,  60  Id.  281; 
Chapman  v.  Lee,  64  Id.  483;  Shorter  f.  Frazer,  64  Id.  74. 

25  Keith  V.  Wolf,  5  Bush,  646;  Thames  r.  Caldwell,  60  Ala.  644:  Mo- 
shier  V.  Meek.  80  111.  79;  Ogden  V.  Thornton,  30  N.  J.  Eq.  569;  Simp- 
son V.  McAllister,  56  Ala.  228;  Shorter  v.  Frazer,  64  Id.  74;  Lavender 
V.  Abbott,  30  Ark.  172;  Corlies  v.  Rowland,  26  N.  J.  Eq.  311;  Nichols 
r.  Glover,  41  Ind.  24;  Walton  v.  Hargroves,  42  Miss.  18;  Dodge  v. 
Evans,  43  Id.  570;  Kent  V.  Gerhard,  12  R.  I.  92;  Dibrell  r.  Smith,  49 
Tex.  474;  Irvin  V.  Garner,  50  Id.  48;  Madden  v.  Barnes,  45  Wis.  135; 
Moore  V.  Worthy,  56  Ala.  163;  Graves  v.  Coutant,  31  N.  J.  Eq.  763; 
Ball  r.  Hill,  48  Tex.  634;  Waldrom  .r.  Zacharie,  54  Id.  .503. 

20  Mayes  r.  Hendry,  33  Ark.  240;  Stroud  r.  Pace,  35  Id.  100;  De 
Forest  v.  Holum,  38  Wis.  516;  Fonda  V.  Jones,  42  Miss.  792;  Sanders  V. 
McAffee,  41  Ga.,  684;  Irvine  v.  Muse,  10  Heisk.  477;  Durett  v.  Briggs, 
47  Mo.  356. 

27Stansell  r.  Roberts,  3  Ohio  148;  Skaggs  r.  Nelson.  25  Miss.  88; 
Nnlte's  Appeal.  45  Pa.  St.  361;  Brown  v.  Budd,  2  Ind.  442.  But  see 
contra,  where  this  is  done  by  agreement  of  all  the  parties,  and  a  note 
is  given  by  the  grantee  to  a  third  person  who  pays  the  purchase- 
money  to  the  grantor.  Campbell  v.  Roach,  45  Ala.  667;  Hamilton 
298 


CH.    XI.]  MORTGAGES.  §    219 

claim  for  the  purchase-money  is  a  matter  of  great  doubt. 
There  are  decisions  in  support  of  both  positions,  but  the  bet- 
ter opinion  is;  that  the  lien  is  personal  to  the  vendor  and  can- 
not be  assigned,  unless  the  right  is  expressly  reserved  by  the 
parties,  when  it  will  have  all  the  characteristics  of  an  ex- 
press lien,  and  will  pass  with  the  assignment.-^ 

V.  Gilbert,  2  Heisk.  680;  Mitchell  v.  Butt,  45,  162;   Francis  v.  Wells, 

2  Col.  660;  Perkins  v.  Gibson,  51  Miss.  699;  Nichol  v.  Glover,  41  Ind. 
24;  Latham  r.  Staples,  46  Ala.  462.  One  claiming  that  his  conveyance 
was  voluntary  and  witliout  any  consideration  by  the  grantee,  has  no 
equitable  lien.  Ostenson  r.  Severson  (lovva  1904),  101  N.  W.  Rep.  789. 
A  third  party  who  loans  money  to  pay  for  land,  has  no  lien  tlierefor 
in  Arkansas.  Hardin  v.  Hooks  (1904),  81  S.  W.  Rep.  386.  But  see, 
Williams  V.  Rice,  60  Mich.  102,  26  N.  W.  Rep.  846;  Charter  Oak  Co.  v. 
Gisborne,  5  Utah  319,  15  Pac.  Rep.  253;  Carey  «.  Boyle,  53  Wis.  574, 
UN.  W.  Rep.  47.  A  vendor's  lien  is  not  waived,  in  Missouri,  by  the 
execution  of  a  mortgage  to  secure  the  purchase  money  notes.  Hannah 
r.  Davis,  112  Mo.  599. 

28  It  is  held  to  be  non-assignable  in  California,  Illinois,  Iowa,  Mary- 
land, Mississippi,  Missouri,  New  York,  North  Carolina,  Ohio,  Tennessee. 
Carlton  V.  Buckner,  28  Ark.  66;  Button  v.  Moore,  26  Ark.  396;  Ross  v. 
Heintzen,  36  Cal.  313;  Keith  V.  Horner,  32  111.  524;  Dickenson  V. 
Chase,  1  Morris  492;  Moshier  V.  Meek,  SO  111.  79;  Inglehart  V.  Ar- 
miger,  1  Bland  519;  Pitts  V.  Parker,  44  Miss.  247;  Walker  v.  Williams, 
30  Miss,  165;  White  r.  Williams,  1  Paige  502;  Smith  v.  Smith,  9  Abb. 
(N.  s.)  420;  Green  r.  Crockett,  2  Dev.  &  B.  Eq.  390;  Thorpe  v.  Dunlap, 
4  Heisk.  674;  Green  V.  DeMoss,  10  Humph.  371;  Stratton  v.  Gold,  40 
Miss.  780;  Norvell  r.  Johnson,  5  Humph.  489;  Gann  i".  Chester,  5 
Yerg.  205;  Sheratz  i".  Nicodemus,  7  Yerg.  9;  Briggs  v.  Hill,  6  How. 
(Miss.)  362;  Horton  r.  Horner,  14  Ohio  437;  Durant  v.  Davis,  10  Heisk. 
522;  Tharpe  v.  Dunlap,  4  Heisk.  674;  Williams  V.  Christian,  23  Ark. 
255;  Blevins  v.  Rogers,  32  Id.  258;  Williams  v.  Young,  21  Cal.  227; 
Shall  f.  Stagg,  95  111.  39;  Wing  V.  Goodman,  75  Id.  159;  Rutland  v. 
Brister,  53  Miss.  683;  Pearl  v.  Hervey,  70  Mo.  160;  White  v.  Williams, 
1  Paige  .502.  While  in  Alabama,  Indiana,  Kentucky,  and  Texas  the 
lien  is  held  to  be  assignable.  Wells  V.  Morrow,  38  Ala.  125;  Griggsby 
r.  Hair,  25  Ala.  327;  Nichols  V.  Glover,  41  Ind.  24;  Honore  v.  Bake- 
well,  6  B.  Mon.  67;  Ripperdon  v.  Cozine,  8  B.  Mon.  465;  While  V. 
Downs,  40  Texas  225;  DeBruhl  r.  Mass,  54  Id.  404;  Broadwell  f.  King, 

3  B.  Mon.  449.  And  in  some  of  the  States,  where  it  is  generally  held 
that  the  lien  is  not  assignable  with  the  debt,  a  distinction  is  made  be- 
tween a  transfer  by  sale  of  the  debt,  and  a  deposit  of  the  debt  as  se- 
curity for  the  vendor's  indebtedness.     In  the  latter  case  it  is  held  that 

2yy 


§   220  MORTGAGES.  [PART  I. 

§  220.  Vendee's  lien. —  Where  the  vendee  has  paid  any  part 
of  the  purcliase-nioney  on  the  faith  of  the  contract  of  sale 
before  a  conveyance  has  been  made  to  him,  equity  gives  him 
a  lien  upon  the  title  of  the  vendor  for  the  amount  so  ad- 
vanced, which  has  all  the  characteristics  of  the  vendor's  lien, 
and  is  enforceable  in  the  same  way  against  the  vendor  and  all 
his  privies  who  have  notice.*® 

the  pledgee  may  assert  the  vendor's  lien  in  his  own  behalf.  Carlton  v. 
Buckner,  28  Ark.  66;  Hallock  r.  Smith,  3  Barb.  272;  Crowley  v.  Riggs, 
24  Ark.  563.  The  assignment  of  the  note  or  other  instrument  of  in- 
debtedness of  the  vendee  does  not  discharge  the  lien  although  the  lien 
does  not  pass  to  the  assignee,  as  long  as  the  vendor  is  liable  as  in- 
dorser  or  guarantor.  He  may  enforce  it  for  his  own  benefit.  Kelly  «. 
Payne,  18  Ala.  371;  White  V.  Williams,  1  Paige  502;  Lindsey  v.  Bates, 
42  Miss.  397;  Turner  v.  Horner,  29  Ark.  440;  Smith  v.  Smith,  9  Abb. 
Pr.  (n.  s.)  420.  In  Missouri,  it  is  held  that  the  assignment  of  note  for 
purchase  money  will  pass  the  vendor's  lien  to  the  assignee,  where  the 
vendor  retains  the  legal  title,  and  has  only  conditioned  for  the  execu- 
tion of  a  deed  upon  payment  of  the  purchase  money.  Adams  v.  Cow- 
herd, 30  Mo.  458.  A  vendor's  lien  is  assignable,  like  a  mortgage,  with 
the  debt,  in  Arkansas  and  Georgia.  Smith  v.  Butler  (1904),  80  S.  W. 
Rep.  580;  Ray  v.  Anderson,  119  Ga.  926,  47  S.  E.  Rep.  205.  See  also, 
Dickason  v.  Fisher,  137  Mo.  342;  Sloan  V.  Campbell,  71  Mo,  387,  3  Pom. 
Eq.  Jur.  1254. 

29  Burgess  v.  Wheate,  1  W.  Bl.  150;  Mackreth  v.  Symmons,  15  Ves. 
352;  Payne  v.  Atterbury,  Harr.  Ch.  414;  -Etna  Ins.  Co.  r.  Tyler,  16 
Wend.  385;  Lowell  r.  Middlesex  Ins.  Co.,  8  Cush.  127;  Shirley  r.  Shir- 
ley, 7  Blackf.  4.52;  Cooper  r.  Merritt,  30  Ark.  686;  Stewart  v.  Wood,  03 
Mo.  252;  Lane  v.  Ludlow,  6  Paige  316,  note,  2  Story  Eq.  Jur.  Sec. 
1216;  Anderson  r.  Spencer,  51  Miss.  869;  Hughes  r.  Hatchett,  55  Ala. 
.539;  Lane  r.  Ludlow,  2  Paine  591;  Clark  v.  Jacobs,  56  How.  Pr.  519; 
Wright  f.  Dufield,  2  Baxt.  218;  Flinn  V.  Barber,  64  Ala.  193;  Stewart 
V.  Wood,  63  Mo.  252;  Cooper  r.  Merritt,  30  Ark.  86;  Shirley  v.  Shir- 
ley, 7  Blackf.  452;  Brown  r.  East,  5  Mon.  405.  407.  Upon  the  pur- 
chaser's lion  and  enforcement  thereof,  see,  Combs  Admr.  v.  Krish  (Ky. 
1905),  84  S.  W.  Rep.  562;  Durham  r.  Wick,  210  Pa.  128,  59  Atl.  Rep. 
824;  Seibel  r.  Purchase.  134  Fed.  Rep.  484;  Corrough  r.  Hamill,  110 
Mo.  App.  53.  84  S.  W.  Rep.  96;  Smith  f.  Lamb,  26  111.  396,  79  Am. 
Dec.  381;  Doherty  r.  Dolan,  65  Me.  87,  20  Am.  Rep.  677;  Fuller  f. 
Hubbard,  6  Cow.  13,  16  Am.  Dec.  439. 


300 


CII.    XI.  j  MORTGAGES.  §    222 

§  221.  Enforcement  of  grantor's,  vendor's  and  vendee's  liens. 
—  Both  the  vendor's  and  the  vendee's  liens  are  enforced  by  a 
bill  in  equity;  and  if  the  debt  cannot  be  liquidated  in  any 
other  way,  the  court  will  order  the  property  to  be  sold,  or  S3 
much  of  it  as  is  necessary,  and  the  proceeds  of  sale  applieJ 
to  the  satisfaction  of  the  debt.  But  in  order  that  the  proi-- 
erty  might  be  subjected  to  the  lien,  the  action  must  be  brought 
directly  for  that  purpose.  It  cannot  be  enforced  in  any  col- 
lateral suit.^" 

§  222.  Mortgage  at  common  law. —  A  common-law  mortgage 
is  a  conveyance  of  an  estate  in  lands  upon  condition  that  it 
will  be  defeated  by  the  payment  of  the  debt  or  the  perform- 
ance of  the  obligation,  to  secure  which  the  conveyance  was 
made.  The  conveyance  is  a  security  and  for  that  purpose  the 
mortgagee  is  given  a  defeasible  estate,  which  is  to  become  abso- 
lute upon  the  failure  of  the  mortgagor  to  perform  the  condi- 
tion.    It  is  a  species  of  estate  upon  condition  subsequent,  and 

30  Wilson  V.  Davisson,  2  Robt.  384;  Mullikin  t*.  Mullikin,  1  Bland 
538;  Eskridge  f.  McClure,  2  Yerg.  84;  Clark  v.  Bell,  2  B.  Mon.  1; 
Payne  f.  Harrell,  40  Miss.  498;  Clark  v.  Hunt,  3  J.  J.  Marsh.  558; 
Jones  V.  Conde,  G  Johns.  Ch.  77;  Ely  r.'Ely,  6  Gray  439;  Codwise  f. 
Taylor,  4  Sneed  .346;  Burger  v.  Potter,  32  111.  66;  Milner  V.  Ramsey, 
48  Ala.  287;  Emison  v.  Risque,  9  Bush  24;  Elwards  v.  Edwards,  5 
Heisk.  123.  In  some  of  the  States,  the  lien-holder  must  exhaust  his 
remedy  at  law  before  he  can  file  a  suit  in  equity  to  enforce  his  lien. 
Roper  V.  McCook,  7  Ala.  318;  Battorf  v.  Conr.ar,  1  Blackf.  287;  Ford 
V.  Smith,  1  McArthur  592;  Pratt  v.  Van  Wyck,  5  Gill  &  J.  495.  In 
Maryland  it  has  now  been  changed  by  statute.  Gen.  Laws  Md.  (1860) 
p.  99.  And  in  other  States,  the  vendor  or  vendee  may  enforce  his  lien 
although  he  may  have  a  complete  remedy  at  law.  Bradley  t".  Bosley,  1 
Barb.  Ch.  125;  Duqois  f.  Hull,  43  Barb.  26;  Stewart  v.  Caldwell,  54 
Mo.  536;  Pratt  v.  Clark,  57  Mo.  189;  Campbell  r.  Roach,  45  Ala.  667; 
Richardson  v.  Baker,  5  J.  J.  Marsh.  323;  McCaslin  v.  The  State,  44 
Ind.  151;  Sehorn  v.  McWhirter,  6  Baxt.  311,  313;  Church  v.  Smith,  39 
Wis.  492.  See,  Seat  V.  Knight,  3  Tenn.  Ch.  262;  Bruce  v.  Tilson,  25 
N.  Y.  194.  For  the  necessary  parties  and  for  form  of  decree  enforcing 
lien,  see,  Acree  r.  Strong  (Ala.  1904),  37  So.  Rep.  934;  Wilson  V. 
Moore  (Texas  1904),  85  S.  W.  Rep.  25;  Ford  v.  Azbell  (Ky.  1905),  85 
S.  W.  Rep.  217;  Brixen  v.  Jorgensen  (Utah  1904),  78  Pac.  Rep.  674. 

301 


§   224  MORTGAGES.  [PART   I. 

grew  out  of  the  doctrine  of  those  estates.'''  The  conunon- 
law  mortgage  is  to  be  distinguished  from  two  kinds  of  securi- 
ties, which  once  were  used  quite  extensively  in  Great  Britain, 
viz.,  vii'um  vadium  and  the  Welsh  mortgage. 

§  223.  Vivum  vadium. —  This  was  also  an  estate  granted  to 
the  creditor  for  the  purpose  of  securing  the  payment  of  a 
debt.  But  it  is  to  be  distinguished  from  the  mortgage  or 
vadium  mortuum,  in  that  the  debt  was  to  be  satisfied  out  of 
the  rents  and  profits  of  the  estate.  The  grantee  in  the  va- 
dium vivum  invariably  took  possession  of  the  premises. 
Transfer  of  possession  was  a  necessary  incident,  whereas,  as 
we  shall  presently  have  occasion  to  observe,  the  common-law 
mortgage  does  not  require  a  change  of  possession,  although  it 
may  take  place.  In  the  mortgage,  also,  if  the  mortgagor  fails 
to  discharge  his  obligation,  the  title  becomes  absolute  in  the 
mortgagee,  while  in  the  vadium  vivum  it  never  does,  but  re- 
verts to  the  grantor,  as  soon  as  the  grantee  shall  have  paid 
himself  out  of  the  rents  and  profits  of  the  estate.*^ 

§  224.  Welsh  mortgage. —  This  mortgage  was  one,  in  which 
the  distinguishing  feature  was,  that  the  mortgagee  always 
entered  into  possession  and  appropriated  the  rents  and  profits 
of  the  estate  in  payment  of  interest  on  the  debt.  The  mort- 
gagee could  neither  compel  the  mortgagor  to  pay  the  prin- 
cipal, nor  foreclose  the  mortgage  and  acquire  the  absolute 
estate.  The  mortgagor  could  pay  or  not  as  he  chose,  but  until 
payment  of  the  principal,  he  could  not  exercise  any  of  the 
rights  of  an  owner  over  the  land.'^     Both  the  vadium  vivum 

81 2  Washburn  on  Real  Prop.  34;  4  Kent's  Com.  130;  Jones  on 
Mortg.,  See.  4;  Williams  on  Real  Prop.  422;  Erskine  v.  Townsend,  2 
Mass.  493;  Mitchell  v.  Burnham,  44  Me.  299;  Wing  v.  Cooper,  37  Vt. 
179;  Lund  v.  Lund,  1  N.  H.  39. 

32  Jones  on  Mortg.,  Sec.  2;  4  Kent's  Com.  137;  2  Bla.  Com.  157;  Co. 
Lit.  520. 

83  4  Kent's  Com.  137;  Jones  on  Mortg.,  Sec.  3;  Howell  v.  Price,  1  P. 
Wms.  291;   Lonquet  v.  Sea  wen,   1   Ves.  Sr.  402;   2   Washburn  on   Real 
Prop.  37.     See,  O'Neill  v.  Grab,  39  Hun  566. 
302 


CH.    XI.]  MORTGAGES.  §    225 

and  the  Welsh  mortgage  have  fallen  into  disuse,  and  they  are 
mentioned  only  as  curiosities  in  legal  literature. 

§  225.  Equity  of  redemption. —  If  the  mortgagor  in  a  com- 
mon law  mortgage  failed  to  perform  the  condition  at  the 
time  stipulated,  the  estate  became  absolute  in  the  mortgagee, 
even  though  the  estate  may  have  been  worth  much  more  than 
the  mortgage  debt.^*  There  was  no  remedy  by  which  the 
mortgagor  could  enforce  the  acceptance  of  payment  after  the 
breach  of  the  condition,  even  where  his  failure  arose  from 
some  accident  or  unavoidable  delay,  or  where  the  payment  of 
the  debt  with  interest  to  date  of  the  tender  of  payment  would 
do  no  injury  to  the  mortgagee.  This  rigorous  rule  of  the 
common  law  did  not  fail  to  be  productive  of  great  injustice 
in  many  instances,  and  like  all  cases  of  hardships  resulting 
from  the  technicality  of  the  common  law,  it  attracted  the  at- 
tention of  the  Court  of  Chancery.  A  long  contest  ensued  be- 
tween these  courts  from  the  time  of  the  Magna  Charta  until 
the  reign  of  James  I,  when  Chancery  acquired  jurisdiction 
over  questions  arising  out  of  mortgages,  and  decreed  that  the 
mortgagor  may  become  entitled  to  redeem  his  estate  from  the 
mortgagee,  after  condition  broken,  by  the  payment  of  the 
debt  and  interest;  and  in  the  reign  of  Charles  I  the  law  of 
mortgages  was  firmly  established  as  a  branch  of  equity  juris- 
prudence.^'    This  right  of  the  mortgagor  to  redeem  the  es- 

8<  2  Washburn  on  Real  Prop.  35 ;  4  Kent's  Com.  140 ;  Fay  v.  Cheney, 
14  Pick.  ,399;  Brighani  r.  Winchester,  1  Mete.'  390;  Goodall's  Case,  5 
Rep.  96;  Wade's  Case,  5  Rep.  11.5;  Jones  on  Mortg.,  Sec.  11. 

85  1  Spence  Eq.  Jiir.  603 ;  Jones  on  Mortg.,  Sec.  6 ;  How  r.  Vigures,  1 
Rep.  in  Ch.  32;  Emanuel  College  f.  Evans,  Id.  18;  2  Washb.  on  Real 
Prop.  39;  Roscarrick  r.  Barton,  1  Ca.  in  Ch.  217;  Casborne  f.  Scarfe,  1 
Atk.  603;  Willett  r,  Winnelly,  1  Vern.  488;  Price  V.  Perrie,  2  Freem. 
258.  A  statute  giving  a  right  of  redemption,  does  not  apply  to  a  mort- 
gage executed  before  it  went  into  effect.  Bremen  M.  &  M.  Co.  t*.  Bre- 
men (N.  M.  1905),  79  Pac.  Rep.  806;  Barnitz  r.  Beverly,  169  U.  S.  118, 
41  L.  Ed.  93.  Whenever  the  mortgagee  uses  his  mortgage  to  acquire 
the  equity  of  redemption  at  less  than  its  value,  a  court  of  equity  will 
compell  a  redemption.    Noble  v.  Graham  (Ala.  1904),  37  So.  Rep.  230; 

303 


§    227  *      MORTGAGES.  [PAET  I. 

tate  after  the  breach  of  the  condition  was  recognized  only  in 
a  court  of  equity.  The  le<?nl  estate,  as  viewed  from  the  legal 
standpoint,  was  still  considered  to  be  absolute  in  the  mort- 
gagee, but  discharged  of  all  rights  of  the  mortgagor.  The 
right  to  redeem  was  therefore  no  estate  in  the  land.  It  was 
simply  an  equity,  and  hence  was  called  the  equity  op  re- 
demption. 

§  226.  The  mortgage  in  equity. —  As  a  result  of  this  equita- 
ble jurisdiction,  mortgages  assumed  in  equity  a  different  char- 
acter from  what  they  had  in  law.  Equity  seized  hold  of  the 
real  intention  of  the  parties,  and  construed  the  mortgage  to 
have  only  the  effect  of  a  lien,  instead  of  vesting  a  defeasible 
estate  in  the  land.  This  equitable  construction  conforms 
more  nearly  to  the  purposes  and  desired  effect  of  a  mortgage. 
It  is  given  only  to  secure  the  payment  of  a  debt,  or  the  per- 
formance of  some  obligation,  and  its  ends  are  satisfied,  if 
after  condition  broken  means  are  provided  to  the  mortgagee 
for  satisfying  his  claim  by  an  appropriation  of  the  land,  while 
in  the  interim  his  interests  are  protected  against  any  subse- 
quent conveyance  of  the  land.  All  this  is  attained  by  a  lien. 
Equity,  therefore,  held  the  mortgage  to  be  a  lien  upon  the 
land,  and  not  an  estate  in  it.^" 

§  227.  Influence  of  equity  upon  the  law. —  As  soon  as  equity 
assumed  jurisdiction  over  mortgages,  it  began  to  exert  a  po- 
tent influence  over  the  law  in  respect  to  that  class  of  interests, 
and  has  in  the  course  of  time  almost  entirely  superseded  the 
courts  of  law  in  their  jurisdiction.     This  is  specially  true  in 

Kakley  v.  Shelley,  129  Ala.  467,  29  So.  Rep.  385;  Hyndman  v.  Hynd- 
man,  19  Vt.  9,  46  Am.  Dec.  171. 

8«Headley  v.  Goundray,  41  Barb.  282;  Jackson  v.  Willard,  4  Johns. 
41;  Green  v.  Hart,  1  Johns.  580;  Kinna  v.  Smith,  2  Green  Ch.  14; 
Hughes  i>.  Edwards,  9  Wheat.  500;  Runyan  V.  Mersereau,  11  Johns.  534; 
Eaton  V.  Whiting,  3  Pick.  484;  Whitney  V.  French,  25  Vt.  663;  Myers 
r.  White,  1  Rawle,  353;  Hannah  v.  Carrington,  18  Ark.  85;  Matthews 
P.  Wallwyn,  4  Ves.  118;  4  Kent's  Com.  138. 
304 


CH.   XI.]  MORTGAGES.  §   227 

regard  to  the  foreclosure  of  mortgages.  Although  in  some 
of  the  States  the  common-law  foreclosure  still  prevails  in  a 
modified  form,  yet  in  most  of  them,  and  in  England,  it  has 
given  way  to  the  more  practicable  and  just  foreclosure  in 
equity.^^  Not  only  has  equity  supplanted  the  jurisdiction  of 
courts  of  law  in  respect  to  foreclosure,  but  it  has  everywhere, 
in  England  and  in  this  country,  produced,  through  a  legisla- 
tion, judicial  and  statutory,  greater  or  less  influence  upon  the 
legal  theories  in  regard  to  the  interests  of  the  mortgagor  and 
the  mortgagee.  In  some  of  the  States  the  modifications  ef- 
fected by  equity  are  but  slight  and  pertain  only  to  minor  de- 
tails, while  the  mortgage  is  still  held  to  be  a  conveyance  of  an 
estat'e  in  the  land.  Such  is  the  law  in  Maine,  ^Massachusetts, 
New  Hampshire,  Connecticut,  Rhode  Island,  Vermont,  North 
Carolina,  Mississippi,  Alabama,  Missouri,  Indiana,  and 
Minnesota.  In  others  the  mortgage  is  still  considered  a  con- 
veyance of  an  interest  corresponding  to  an  estate,  while  the 
mortgagee  possesses  in  the  estate  only  such  rights  and  reme- 
dies as  are  recognized  in  a  court  of  equity.  The  ordinary 
legal  rights  of  ownership  do  not  attach.  Such  will  be  found 
to  be  the  law  in  Pennsylvania,  South  Carolina,  Texas,  Ken- 
tucky, Ohio,  Illinois,  Iowa,  and  Wisconsin.  This  class  ap- 
proximates so  nearly  to  the  next  class  to  be  mentioned,  that 
in  the  subsequent  discussion  of  the  rights  of  the  mortgagor 
and  mortgagee,  they  will  be  treated  as  constituting  one  sub- 
division ;  so  far  at  least  as  general  rules  are  concerned.  In 
the  last  class  of  States,  namely  in  New  York,  Georgia  and 
California,  the  whole  common  law  theory  has  been  repudiated, 
and  the  mortgage  is  construed  to  be  simply  a  lien  upon  the 
land  conveying  no  legal  estate,  not  even  after  condition 
broken.^*     In  South  Carolina  it  has  been  held  that  the  mort- 

"2  Washburn  on  Real  Prop.  98;  4  Kent's  Com.  181.  See  post.  Sec. 
272.  A  mortgagee  in  possession,  in  Kansas,  can  bring  a  suit  to  eoin- 
pell  the  mortgagor  to  redeem,  or  to  liave  his  mortgage  forec.osed.  lien- 
thorn  f.  Securities  Co.,  79  Pac.  Hep.  6.53. 

»8  2  Washburn  on  Real  Prop.  100-108;  Jones  on  Mortg.,  Sees.  17-60. 

20  305 


§   228  MORTGAGES.  [PART  I. 

gage  is  so  far  not  an  alienation  or  conveyance  of  land,  as  that 
the  word  "  heirs  "  is  not  required  to  give  effect  to  a  mortgage 
in  fee,  although  words  of  limitation  are  still  required  in  that 
State  in  conveyances  inter  vivos.^^ 

§  228.  The  form  of  a  mortgage. —  The  mortgage  consists  of 
a  deed,  similar  in  terms  to  the  ordinary  deed  of  conveyance, 
conveying  the  estate  to  the  mortgagee,  but  qualified  by  a  de- 
feasance clause,  in  which  it  is  provided  that  the  conveyance 
shall  be  void,  when  the  condition,  usually  the  payment  of 
money,  is  performed,  and  shall  become  absolute  in  the  mort- 
gagee upon  breach  of  the  condition.  Generally,  any  deed 
which  appears  upon  its  face  to  have  been  intended  as  a  secur- 
ity for  the  payment  of  money,  will  be  construed  as  a  mort- 
gage.''*'    If  the  instrument  does  not  conform  to  the  legal  re- 

aoBredenburg  r.  Landrum  (s.c),  10  S.  E.  Rep.  956.  There  is  no 
conflict  between  courts  of  law  and  equity,  in  regard  to  the  rights  and 
status  of  the  mortgagor,  as  courts  of  law  recognize  the  power  of 
equity,  with  reference  to  the  mortgagor's  rights,  and  equity  follows  the 
law,  so  far  as  the  rights  of  the  mortgagee  are  concerned.  3  Pom.  Eq. 
Jur.,  Sec.  1184;  4  Kent's  Com.  IGO;  2  Tiffany  Real  Prop.,  Sec.  507, 
p.  1168.  Mr.  Tiffany  observes  that  the  recognition  of  the  right  of  re- 
demption, by  the  mortgagor,  and  that  the  mortgage  is  but  a  lien,  in- 
stead of  an  estate  upon  condition,  is  a  distinct  advance  in  legal  ideas, 
and  that  with  time,  the  crude  conception  of  an  estate  upon  condition 
will  entirely  disappear.  2  Tiffany  Real  Prop.,  Sec.  507,  p.  1169.  The 
trustee,  or  mortgagee,  in  Missouri,  takes  the  legal  title  for  the  purposes 
of  security  for  the  debt.  Markwell  V.  Markwell,  157  Mo.  326,  57  S.  W. 
Rep.  1078. 

<o  Co.  Lit.  205  a,  Butler's  note  96;  Hughes  v.  Edwards,  9  Wheat.  489; 
Morris  V.  Nixon,  1  How.  118;  Russell  v.  Southard,  12  How.  139;  Bige- 
low  V.  Topliff,  25  Vt.  273;  Steel  v.  Steel,  4  Allen  419;  Gilson  v.  Gilson, 
2  Allen  115;  Parks  V.  Hall,  2  Pick.  211;  Nugent  V.  Riley,  1  Mete.  117; 
Vanderhaize  v.  Hughes,  13  N.  J,  244;  James  V.  Morey,  2  Cow.  246; 
Conway  v.  Alexander,  7  Cranch  218;  Howe  V.  Russell,  36  Me.  115; 
Stoever  v.  Stoever,  9  Serg.  &  R.  434;  Mende  v.  Delaire,  2  Desau.  564; 
Yarborough  v.  Newell,  10  Yerg.  376;  Delahay  v.  McConnell,  4  Scam. 
156;  Flagg  r.  Mann,  2  Sumn.  386;  Edington  V.  Harper,  3  J.  J.  Marsh. 
353;  Henry  v.  Davis,  7  Johns.  Ch.  40;  M'Brayer  v.  Roberts,  2  Dev.  Eq. 
75;  Hauser  v.  Lash,  2  Dev.  &  B.  Eq.  212;  Clark  v.  Henry,  2  Cow.  324; 
Cotterell  v.  Long,  20  Ohio  464;  Burnside  v.  Terry,  45  Ga.  621;  Mason 
306 


CH.    XI.]  MORTGAGES.  §    228 

quirements  for  the  execution  of  a  deed,  as  where  the  seal  has 
been  neglected,  or  the  proper  number  of  attesting  witnesses  is 
not  obtained,  the  deed  will  be  inoperative  as  a  mortgage  at 
law,  and  it  is  believed  generally  in  equity.  But  in  some  of  the 
States,  such  an  imperfect  mortgage  has  been  treated  in  equity 
as  imposing  a  lien  upon  the  land  for  the  benefit  of  the  cred- 
itor, which  partakes  of  the  same  nature  as  a  mortgage  by  de- 
posit of  title  deeds.* ^  And  it  has  been  held  that  a  written 
agreement  for  security  on  certain  property  will  in  etpiity^ 
under  the  doctrine  of  equitable  conversion,  operate  as  a  lien 
on  such  property  against  every  one  interested  therein,  who 
has  notice  of  the  agreement.*^ 

V.  Moody,  26  Miss.  184;  4  Kent's  Com.  461;  Newman  v.  Samuels,  XT' 
Iowa  .528;  Turner  r.  Brown,  82  Mo.  App.  30;  Pulli^  v.  Pullis,  157  Mo. 
565,  57  S.  W.  Rep.  1095.  A  deed,  given  to  the  grantee,  as  security  for 
his  going  security,  is  a  mortgage.  Meeker  v.  Warren  (N.  J.  Ch. 
1904)  57  Atl.  Rep.  421.  See  also,  Morrison  v.  Jones  (Mont.  1904),  77 
Pac.  Rep.  507.  .^ny  description  in  a  mortgage  is  generally  held  to  be 
sufficient  if  it  would  put  a  subsequent  purchaser  or  lien-holder,  upon 
inquiry.  Bray  r.  Ellison  (Ky.  1904),  83  S.  W.  Rep.  96;  Fields  r.  Fish 
et  al.  (Ky.  1004),  82  S.  W.  Rep.  376;  Scott  v.  Gordon,  109  Mo.  App. 
695,  83  S.  W.  Rep.  550. 

♦1  Coe  f.  Columbia,  etc.,  R.  R.  Co.,  10  Ohio  St.  372;  Price  V.  Cutts,  29 
Ga.  142-148;  McQuie  f.  Rag,  58  :Mo.  56;  McClurg  v.  Phillips,  57  Mo. 
214;  Burnside  r.  Wayman,  48  Mo.  356;  Harrington  r.  Fortner,  58  Mo. 
468;  Dunn  r.  Raley,  58  Mo.  134;  Lake  f.  Doud,  10  Ohio,  515;  Abbott  t» 
Godfroy,  1  Mann.  (Mich.)  198;  Black  V.  Gregg,  58  Mo.  565;  Brown  v.. 
Brown,  103  Ind.  23;  Bullock  v.  Whipp,  15  R.  D.  195;  Watkins  V.  Vroo- 
man,  51  Hun  175;  Bell  V.  Pelt,  51  Ark.  433;  Westerly  Sav.  Bank  v. 
Stillman  Mfg.  Co.  (R.  I.),  17  Atl.  Rep.  918. 

<2Ge8t  V.  Packwood,  39  Fed.  Rep.  525;  Watkins  v.  Vrooman,  51 
Hun  175.  Any  writing  charging  a  debt  on  property,  although  not  a 
formal  mortgage,  is  generally  held  to  be  a  good  mortgage  thereon,  in 
equity.  Harrigan  r.  Gilchrist,  121  Wis.  127,  99  N.  W.  Rep.  909;  Feely^ 
r.  Bryan  (W.  Va.  1904),  47  S.  E.  Rep.  307;  Wenzel  v.  Weigand  (Minn,. 
1904),  99  X.  W.  Hep.  633;  Potter  f.  Kimball,  186  Mass.  120,  71  N.  E,. 
Rep.  308.  The  court  will  decree  an  agreement  to  execute  a  mortgage,, 
long  past  due,  an  equitable  mortgage,  in  Indiana.  Hamilton  v.  Hamil- 
ton, 162  Ind.  430,  70  N.  E.  Rep.  535.  And  after  the  recording  or  notice 
of  an  equitable  mortgage,  it  imparts  notice,  the  same  as  any  other  mort- 
gage, and  the  rights  of  the  parties  are  determined  accordingly.    Muthew 

307 


§    229  MORTGAGES.  [PAKT   I. 

§  229.  Execution  of  the  defeasance. —  The  defeasance  clause 
is  usually  found  in  the  same  deed  which  conveys  the  estate, 
but  this  is  not  necessary.  It  may  be  contained  in  a  separate 
instrument  executed  and  delivered  by  the  grantee  or  mort- 
gagee to  the  grantor  or  mortgagor.  In  such  a  case,  however, 
the  instrument  must  be  under  seal,  in  order  to  have  at  law  the 
power  of  converting  the  apparently  absolute  deed  of  convey- 
ance into  a  mortgage.*'  It  must  either  be  executed  at  the 
same  time  or  subsequently  in  pursuance  of  an  agreement  en- 
tered into  at  the  time  of  conveyance.**  And  as  a  general 
rule,  although  it  is  not  necessary  that  the  deed  and  the  de- 
feasance should  bear  the  same  date  or  be  executed  at  the  same 
time,  they  must  be  delivered  at  the  same  time.  Delivery  of 
the  defeasance  is  essential  to  its  full  legal  operation.***     In 

r.  Daniainville,  89  N.  Y.  S.  493.  A  written  assignment  of  a  contract 
for  a  deed,  is  an  equitable  mortgage,  in  Missouri.  Hackett  r.  Watts, 
138  Mo.  502.  An  agreement  by  the  owner  of  an  equity  of  redemption, 
in  consideration  of  the  stay  of  foreclosure  proceedings,  to  execute  a  bond 
and  mortgage,  on  certain  property  is  held,  in  New  York,  to  amount  to 
an  equitable  mortgage  thereon.    Matthew  v.  Damainville,  89  N.  Y.  S.  493. 

43Bodwell  r.  Webster,  13  Pick.  411;  Adams  v.  Stevens,  49  Me.  362; 
Warren  v.  Lovis,  53  Me.  464;  French  v.  Sturdivant,  8  Greenl.  246;  Dey 
r.  Dunham,  2  Johns.  Ch.  191;  Baker  v.  Wind,  1  Ves.  sr.  160;  Perkins 
V.  Dibble,  10  Ohio  433;  Lane  ^..Shears,  1  Wend.  433;  Stoever  v.  Sto- 
ever,  9  Serg.  &  R.  434;  Houser  v.  Lamont,  55  Pa.  St.  311;  Sharkey  V. 
Sharkey,  47  Mo.  543;  Clark  v.  Lyon,  46  Ga.  203;  Robinson  r.  Willough- 
by.  65  N.  C.  520;  Archambau  v.  Green,  21  Minn.  520;  Freeman  v.  Bald- 
win, 13  Ala.  246;  Edington  v.  Harper,  3  J.  J.  Mar^.  353;  Hammonds 
t'.  Hopkins,  3  Yerg.  525 ;  Clark  v.  Henry,  2  Cow.  324. 

"JefTrey  v.  Hursh,  58  Mich.  246;  Waters  v.  Crabtree,  105  N.  C.  394; 
McMillan  r.  Bissell,  63  Mich.  66.  In  McCauley  v.  Smith  (132  N.  Y. 
524,  Finch's  Sel.  Cas.  1109),  the  New  York  court  held  that  it  was  com- 
petent to  consider  an  agreement,  antedating  the  deed,  with  a  view  of 
determining  the  character  of  the  conveyance  and  whether  it  was  a 
mortgage  or  an  absolute  deed. 

♦sBennock  r.  Whipple,  12  Me.  340;  Bodwell  v.  Webster,  13  Pick.  411; 
Kelly  f.  Thompson,  7  Watts  401;  Reitenbaugh  r.  Ludwick,  31  Pa.  St. 
131;  Hale  r.  Jewell,  7  Greenl.  435;  Holmes  v.  Grant,  8  Paige  Ch.  243; 
Newhall  r.  Bart,  7  Pick.  157;  Colwell  v.  Woods,  3  Watts  188;  Kelley  i". 
Thompson,  7  Watts  401;  Nugent  v.  Riley,  1  Mete.  117;  Crane  v.  Bon- 
nell,  1  Green  Ch.  264;  Wilson  v.  Shoenberger,  31  Pa.  St.  295;  Mclntier 
308 


CH.    XI.]  MORTGAGES.  §    230 

some  of  the  States  a  separate  deed  of  defeasance  is  required 
to  be  recorded, .  in  order  to  convert  an  absolute  deed  into  a 
mortgage,  as  against  every  one  except  the  maker.*®  But 
where  such  is  not  the  law,  any  other  notice,  actual  or  con- 
structive, suffices  to  bind  subsequent  purchasers.  If  they  have 
no  notice  of  the  defeasance  at  all,  the  deed  as  to  them  will 
be  an  absolute  conveyance.*'  And  where  they  are  both  re- 
corded they  must  show  for  themselves,  that  they  are  parts  of 
the  same  transaction,  in  order  that  the  record  may  be  con- 
structive notice  to  purchasers.*^  Possession  by  the  grantor  is 
not  notice  of  a  defeasance  deed  held  by  him.*® 

§  230,  Form  of  the  defeasance. —  No  particular  form  is  nec- 
essary, provided  the  deed  clearly  shows  the  intention  of  the 
parties,  that  the  instrument  shall  have  the  effect  of  a  mort- 
gage.'^"  And  wherever  the  condition  in  a  deed  is  the  payment 
of  money,  the  presumption  of  law  is  always  in  favor  of  its  be- 

V.  Shaw,  6  Allen  83;  McLaughlin  v.  Shepherd,  32  Me.  143;  Brown  v. 
Holyoke,  53  Me.  9;  Haines  v.  Thompson,  70  Pa.  St.  434;  Bickford  v. 
Daniels,  2  N.  H.  71. 

«Tomlinson  v.  Monmouth  Ins.  Co.,  47  Me.  232;  1  Minn.  Stat,  at 
large   (1873)   p.  640;  Russell  v.  Waite,  Walk.  31. 

<7  Newhall  V.  Pierce,  5  Pick.  450 ;  Parrington  v.  Pierce,  38  Me.  447 ; 
Walton  V.  Crowley,  14  Wend.  63;  Brown  v.  Dean,  3  Wend.  208;  James 
V  Johnston,  6  Johns.  Ch.  417;  Friedley  v.  Hamilton,  17  Serg.  &  R.  70; 
Knight  f.  Dyer,  57  Me.  177;  Day  v.  Dunham,  2  Johns.  Ch.  182;  Wyatt 
V.  Stewart.  34  Ala.  716;  Halsey  v.  Martin,  22  Cal.  645;  Henderson  v. 
Pilgrim,  22  Texas,  475. 

<8  Weide  r.  Gehl,  21  Minn.  449;  Hill  v.  Edwards,  11  Minn.  22;  King 
V.  Little,  1  Cush.  436. 

<o  Newhall  r.  Pierce,  5  Pick.  450;  Hennessey  v.  Andrews,  6  Cush.  170; 
Kunkle  t*.  Wolfsberger,  6  Watts  126.  See  contra,  Daubenspeck  v. 
Piatt,  22  Cal.  330;  Pritchard  v.  Brown,  4  N.  H.  397.  In  Conway's 
Exec.  f.  Alexander  (7  Cranch  218),  Ch.  J.  Marshall,  says:  "The  want 
of  a  covenant  to  repay  the  money,  is  not  complete  evidence  that  the  con- 
ditional sale  was  intended,  but  is  a  circumstance  of  no  inconsiderable 
importance."    See  also,  Flagg  v.  Mann,  14  Pick.  467. 

BoPearce  V.  Wilson.  Ill  Pa.  St.  14;  Mellon  r.  Lemmon,  111  Pa.  St. 
66;  Tn  re  Helfenstein's  Estate,,  20  Atl.  Rep.  151.  See,  McCaul  v.  Smith, 
132  N.  Y.  524;  Finch's  Sel.  Cas.  1109. 

309 


§   231  MORTGAGES.  [PART  I. 

ing  treated  as  a  mortgage.  Any  agreement  under  seal,  there- 
fore, which  provides  for  the  contingent  avoidance  of  a  deed 
of  conveyance,  or  calls  for  the  reconveyance  of  the  estate, 
upon  the  payment  of  a  sum  of  money  within  the  prescribed 
time,  will  be  a  defeasance  deed  and  will  make  the  deed  of  con- 
veyance a  mortgage.  And  where  the  relation  of  debtor  and 
creditor  existed,  any  such  agreement  would  be  held  to  create 
a  mortgage,  although  the  parties  did  not  intend  that  that 
should  be  the  effect  of  the  transaction. ''^  Such  agreements  or 
defeasance  deeds  or  clauses  are  to  be  distinguished  from 

§  231.  Agreements  to  repurchase, —  Which  very  often  bear 
a  close  resemblance  to  each  other.  The  difference  in  the  legal 
effect  of  the  two  is  very  great.  If  the  agreement  be  merely 
to  repurchase  upon  certain  specified  terms,  or  at  the  time 
stipulated,  a  failure  to  comply  with  the  terms  of  the  agree- 
ment destroys  the  right  to  repurchase,  and  the  grantor  has 
no  equity  of  redemption,  of  which  he  can  afterward  avail 
himself  in  a  court  of  equity.  If  it  is  a  defeasance,  he  has 
that  right,  the  conveyance  being  a  mortgage.  Wherever  a 
doubt  exists  whether  the  agreement  is  one  to  repurchase  or  a 
defeasance,  the  courts  are  inclined  to  the  latter  construction. 
And  where  the  relation  between  the  parties  is  that  of  debtor 
and  creditor,  and  the  intention  of  the  parties,  as  shown  on 
the  face  of  the  deed,  is  that  the  agreement  should  operate  as 
a  security  for  the  debt,  the  presumption  becomes  conclusive 
that  the  agreement  is  a  defeasance.     And  generally,  under 

Bi  Nugent  V.  Riley,  1  Mete.  117;  Hebron  v.  Centre  Harbor,  11  N.  H. 
571;  Holmes  v.  Grant,  8  Paige  Ch.  243;  Lanfair  v.  Lanfair,  18  Pick. 
299;  Austin  v.  Downer,  25  Vt.  558;  Stewart  v.  Hatchings,  13  Wend. 
485 ;  Hicks  v.  Hicks,  5  Gill  &  J.  75 ;  Breckinridge  v.  Auld,  1  Robt.  148 ; 
Reed  v.  Gaillard,  2  Desau.  552;  Harrison  v.  Lemon,  3  Blackf.  51;  Carr 
V.  Holbrook,  1  Mo.  240;  Belton  v.  Avery,  2  Root,  279;  Marshall  V. 
Stewart,  17  Ohio  356;  Pugh  v.  Holt,  27  Miss.  461;  Gillis  v.  Martin, 
2  Dev.  Eq.  470;  Coldwell  v.  Woods,  3  Watts  188;  Kunkle  v.  Wolfers- 
berger,  6  Watts  126;  Watkins  V.  Gregory,  6  Blackf.  113;  Peterson  V. 
Clark.  15  Johns.  205;  Rice  V.  Rice,  4  Pick.  349;  Pearce  V.  Wilson,  HI 
Pa.  St.  14;  Hannah  v.  Davis,  112  Mo.  599. 
310 


CH.    XI.]  MORTGAGES.  §   231 

sucli  circumstances,  parol  evidence  will  not  be  admissible  to 
rebut  this  presumption,  although  such  evidence  is  freely  ad- 
mitted to  rebut  the  contrary  presumption.'-  Each  case,  how- 
ever, must  depend  upon  its  own  circumstances,  and  the  ques- 
tion finally  becomes  one  of  fact,  whether  it  was  intended  that 
the  agreement  should  operate  as  a  defeasance  or  as  a  condi- 
tional sale.^^  Among  the  circumstances,  which  tend  to  estab- 
lish the  presumption  that  the  agreement  is  a  defeasance,  are 
the  inadequacy  of  the  consideration,  the  continued  possession 
of  the  grantor,  the  necessities  or  financial  embarrassments 
of  the  grantor;  while  the  adequacy  of  the  consideration,  the 

52  2  Cruise  Dig.  74 ;  4  Kent's  Com.  144 ;  Kelly  v.  Thompson,  7  Watts 
401;  Wing  v.  Cooper,  37  Vt.  179;  Trucks  V.  Lindsay,  18  Iowa  505; 
Trull  V.  Skinner,  17  Pick.  216;  Page  v.  Foster,  7  N.  H.  392;  Conway  v. 
Alexander,  7  Cranch  218;  Weathersly  v.  Weathersly,  40  Miss.  469;  Pear- 
son r.  Seay,  35  Ala.  612;  DeFrance  r.  DeFralice,  34  P«.  St.  385;  Wat- 
kins  r.  Gregory,  6  Blackf.  113;  Haines  V.  Thompson,  70  Pa.  St.  438; 
Peterson  r.  Clark,  15  Johns.  205;  Robinson  v.  Cropsey,  2  Edw.  Ch.  138; 
s.  c.  6  Paige  480;  Brown  V.  Dewey,  1  Sandf.  Ch.  56;  Sears  V.  Dixon,  33 
Cal.  326;  Poindexter  v.  ^McCannon,  1  Dev.  Eq.  373;  Pennington  v. 
Hanby,  4  Munf.  140;  Hcniy  v.  Hotaling,  41  Cal.  22;  Kearney  v.  Mc- 
Comb,  16  N.  J.  Eq.  189;  Glover  v.  Payne,  19  Wend.  518.  But  if  the 
debt  is  an  old  one,  and  the  intention  of  the  parties  is  to  pay  the  debt 
by  the  conveyance,  the  agreement  to  repurchase  will  not  convert  the 
deed  into  a  mortgage,  as  it  would  if  the  conveyance  was  intended  as  a 
security  for  the  conveyance.  Glover  t*.  Payne,  19  Wend.  518;  Murphy 
V.  Parifay,  52  Ga.  480;  Slowey  V.  McMurray,  27  Mo.  113;  O'Neill  v. 
Capelle,  62  Mo.  202 ;  Honore  v.  Hutehings,  8  Bush  687 ;  Pitts  v.  Cable, 
44  111.  103;  Magnusson  v.  Johnson,  73  111.  156;  Hall  v.  Saville,  3 
Greene  (Iowa)  37;  West  v.  Hendrix,  28  Ala.  226;  Ruffier  v.  Womack, 
36  Texas  332;  Kerr  v.  Hill,  27  W.  Va.  576;  Chicago,  B.,  etc.,  R.  R.  Co. 
V.  Watson,  113  111.  195;  Wolfe  v.  McMillan,  117  Ind.  587. 

88  But  in  order  that  a  conveyance  may  be  treated  as  a  mortgage, 
there  must  be  a  debt  or  a  loan.  If  there  be  no  debt,  the  agreement  to 
reconvey  is  an  agreement  to  repurchase,  or  converts  the  original  con- 
veyance into  a  conditional  sale.  Lund  V.  Lund,  1  N.  H.  39;  Flagg  v. 
Mann,  14  Pick.  467;  Pearson  V.  Seay,  35  Ala.  612;  Henley  V.  Hotaling, 
41  Cal.  22;  DeFrance  v.  DeFrance,  34  Pa.  St.  385;  Rich  V.  Doane,  35 
Vt.  125;  Chandler  v.  Chandler,  76  Iowa  574;  Vincent  v.  Walker,  86  Ala. 
333.  See  also,  opinion  of  Chief  Justice  Marshall  in  Conway's  Exec.  v. 
Alexander,  7  Cranch  218. 

311 


§    231  MORTGAGES.  [PAKT   I. 

possession  of  the  grantee,  the  vesting  of  the  right  to  enforce 
the  agreement  in  a  third  person,  the  existence  of  other  secnr- 
ities  in  the  possession  of  the  grantor  for  the  payment  of  the 
consideration  of  the  original  conveyance,  go  to  prove  that  it 
was  a  conditional  sale,  or  that  the  grantor  has  only  the  right 
to  repurchaser.^*  Both  the  defeasance  and  the  contract  to 
repurchase  are  to  be  distinguished  from  a  contract  to  repur- 
chase at  a  given  figure,  if  the  grantee  should  at  any  time 
conclude  to  sell.     This  agreement  does  not  give  the  grantor 

B*  Williams  t?.  Owen,  5  Mylne  &  C.  303;  Perry  v.  Meddowcraft,  4 
Beav.  197;  Haines  v.  Thompson,  70  Pa.  St.  442;  Hiester  v.  Madeira,  3, 
Watts  &  S.  384;  Baker  i\  Thrasher,  4  Denio  493;  Conway  V.  Alexander, 

7  Craneh  218;  Holmes  V.  Grant,  8  Paige  Ch.  243;  Russell  V.  Southard, 
12  How.  139;  Waters  V.  Randall,  6  Mete.  479;  West  v.  Hendrix,  28  Ala. 
226;  Sellers  v.  Staleup,  7  Ired.  Eq.  13;  Bennett  v.  Holt,  2  Yerg,  6; 
Flagg  t\  Mann,  14  Pick.  467;  Low  v.  Henry,  9  Cal.  538;  Warren  v. 
Lovis,  .53  Me.  463;  Ransone  v.  Frayser,  10  Leigh  592;  Campbell  v.  Dear- 
born, 109  Mass.  130;  Freeman  v.  Wilson,  51  Miss.  329;  Brown  r. 
Dewey,  1  Sandf.  Ch.  56;  Carr  v.  Rising,  62  111.  14;  Pearson  v.  Seay,  35 
Ma.  612;  Elliott  r.  Maxwell,  7  Ired.  Eq.  246;  Trucks  v.  Lindsey,  18 
Iowa  504;  Gibbs  r.  Penny,  43  Texas  560;  Crews  v.  Threadgill,  35  Ala. 
334;  Wilson  v.  Patrick,  34  Iowa  361;  Greig  t-.  Russell,  115  111.  483; 
Devore  r.  Woodruff  (N.  D.),  45  N.  W.  Rep.  701;  Lynch  v.  Jackson,  28 
111.  App.  660,  s.  c.  129  111.  72;  Snow  V.  Pressey,  82  Me.  552;  Sherrer  t*. 
Harris  (Ark.),  13  S.  W.  Rep.  730;  Clark,  24  111.  App.  510;  Becker  V. 
Howard,   75  Wis.  415;   Greenwood,  etc.,  Co.,  v.  N.  Y.,  etc.,  R.   R.  Co., 

8  X.  Y.  S.  711;  Fames  V.  Hardin,  111  111.  G?A;  Gaines  v.  Brockerhoff 
(Pa),  19  Atl.  Rep.  9,58;  Fox  v.  Heffner,  1  Watts  &  S.  372;  Jackinan  V. 
Kingland,  4  Watts  &  S.  149;  Null  v.  Fries,  110  Pa.  St.  521;  Lynch  v. 
Jackson,  28  111.  App.  160,  s.  c.  129  111.  72;  Stahl  v.  Dehn,  72  Mich.  G45; 
Elston  r.  Chamberlain,  41  Kan.  354;  Baker  f.  Fireman's  Fund 
Ins.  Co.,  79  Cal.  34;  Chandler  v.  Chandler,  76  Iowa  574;  Jackson  V. 
Lynch,  129  111.  72;  Hall  V.  Arnott,  80  Cal.  348;  Wallace  r.  Johnstone, 
129  U.  S.  58;  Hodge  r.  Weeks,  31  S.  C.  276;  Vincent  v.  Walker,  86 
Ala.  333.  When  it  is  doubtful  on  all  the  facts  of  the  case,  whether  the 
transaction  is  a  mortgage  or  a  conditional  sale,  it  is  always  presumed 
to  be  a  mortgage.  Russell  v.  Southard,  12  How.  139;  Eaton  v.  Green, 
22  Pick.  526;  Crane  r.  Bonnell,  1  Green  Ch.  264;  Baugher  r.  Merry- 
man,  32  Md.  185;  Cottrell  r.  Long,  20  Ohio  464;  Gillis  v.  Martin,  2; 
Dev.  Eq.  470;  O'Neil  r.  Capelle,  62  Mo.  209;  Turner  v.  Kerr,  44  Mo. 
429;  Heath  r.  Williams.  .30  Ind.  498;  Scott  v.  Henry,  13  Ark.  112; 
Ward  r.  Deering,  4  Mon.  44;  Jones  v.  Blake,  33  Minn.  362. 

312 


CH.    XI.]  MORTGAGES.  §    233 

any  right  to  compel  a  reconveyance,  if  the  grantee  does  not 
want  to  sell.''* 

§  232.  The  defeasance  clause  in  equity. —  If  the  instrument 
containing  the  defeasance  does  not  fulfill  all  the  legal  require- 
ments of  a  deed,  it  will  not  in  a  court  of  law  have  the  effect 
of  converting  an  absolute  conveyance  into  a  mortgage.  But 
it  will  be  good  in  equity,  and  in  that  court  the  conveyance 
will  be  treated  and  enforced  as  a  mortgage  against  all  having 
actual  notice  of  its  real  character.  Thus,  the  want  of  a  seal, 
the  absence  of  the  requisite  number  of  witnesses,  an  improper 
acknowledgment  of  the  deed,  would  invalidate  the  defeasance 
in  law,  but  it  would  be  enforced  in  equity.^®  Courts  of 
equity  have  not  only  gone  thus  far  in  correcting  and  supple- 
menting the  common  law,  but  they  h.ave,  also,  in  cases  were 
the  defeasance  was  not  put  to  writing,  sustained 

§  233.  The  admissibility  of  parol  evidence, —  To  prove  that 
a  deed,  absolute  on  its  face,  was  intended  to  be  a  mort^'age. 
The  authorities  are  not  uniform  as  to  how  far,  or  in  what 
cases,  such  evidence  is  admissible.  Some  have  held  that  in 
any  case  parol  evidence  can  be  introduced  to  prove  a  deed 
to  be  a  mortgage,  thus  ignoring  completely  the  application 
to  mortgages  of  the  rule,  that  parol  evidence  is  inadmissible 
to  vary  or  control  a  written  instrument,''^  while  others  either 

55  Garcia  r.  Callender,  12.5  N.  Y.  307. 

58  Story  Eq.  Jur.,  Sec.  1018;  Eaton  v.  Green,  22  Pick.  526;  Delaire  i". 
Keenan,  3  Desau.  74;  Flagg  v.  Mann,  14  Pick.  467;  Cutter  t*.  Dickinson, 
8  Pick.  38G;  Warren  V.  Louis,  53  Me.  463;  Murphy  f.  Galley,  1  Allen 
107;  Gillis  r.  Martin,  2  Dev.  Eq.  470.  See  2  Washburn,  Sec.  5!);  Harri- 
gan  V.  Gilchrist,  121  Wis.  127,  99  N.  W.  Rep.  909;  Feelcy  r.  Bryon 
(W.  Va.  1904),  47  S.  E.  Rep.  307;  Wenzel  v.  Weigland  (Minn.  1904), 
99  N.  W.  Rep.  6.33;  Potter  f.  Kimball,  186  Mass.  120,  71  X.  E.  Rep. 
308;  Hamilton  r.  Hamilton,  102  Ind.  430,  70  X.  E.  Rep.  535;  Hackett 
V.  Watts,   138  Mo.  502;  Matthews  r.  Damainvillc,  89  N.  Y.  S.  403. 

5T  Russell  V.  Southard,  12  How.  139;  Babcock  t*.  Wyman.  19  How. 
239;  Sprigg  r.  Bk.  of  Mt.  Pleasant,  14  Pet.  201;  Anthony  v.  Anthony. 
23  Ark,  479;  Pierce  v.  Robinson,  13  Cal.  116;  Farmer  v.  Grose,  42  Cal, 

313 


§   233  MORTGAGES.  [PART   I. 

deny  the  right  altogether/'^  or  limit  its  admissibility  to  such 
cases  as  fall  within  the  ordinary  equitable  jurisdiction  of 
fraud,  accident  or  mistake,  i.  e.,  where  the  failure  to  reduce 
the  defeasance  to  writing  arose  out  of  some  fraud,  accident 
or  mistake."®     As  a  general  rule,  such  evidence  will  be  re- 

169;  Kuhn  v.  Rumpp,  46  Cal.  299;  Klock  v.  Walter,  70  111.  416;  Heath 
V.  Williams,  30  Incl.  495;  Johnson  t\  Smith,  39  Iowa  549;  Zuver  f. 
Lyons,  40  Iowa  570;  Richardson  v.  Woodbury,  43  Me.  206;  CamplK^ll 
r.  Dearborn,  109  Mass.  130,  12  Am.  Rep.  371;  Hassam  r.  Barrett,  115 
Mass.  24;  McDonough  v.  Squire,  111  Mass.  256;  Flagg  V.  Mann,  14 
Pick.  467,  478;  Wadsworth  v.  Loranger,  Har.  (Mich.)  113;  Freeman  v. 
Wilson,  51  Miss.  329;  Littlewort  V.  Davis,  50  Miss.  403;  O'Neill  V. 
Capelle,  62  Mo.  202;  Sweet  f.  Parker,  22  N.  J.  Eq.  453;  Crane  V.  Bon- 
nell,  1  Green  Ch.  264;  Strong  v.  Stewart,  4  Johns.  167;  Horn  r.  Ketel- 
tas,  46  N.  Y.  605 ;  Carr  v.  Carr,  52  N.  Y.  258 ;  Fielder  v.  Darien,  50  N. 
Y.  437;  Miami  Ex.  Co.  f.  U.  S.  Bank,  Wright  249;  Cottrell  f.  Long, 
20  Ohio  464;  Kerr  v.  Gilmore,  6  Watts  405;  Palmer  V.  Guthrie,  76  Pa. 
St.  441;  Nichols  v.  McCabe,  3  Head.  93;  Haynes  r.  Swan,  6  Heisk.  560; 
Ruggles  r.  Williams,  1  Head.  141;  Gibbs  f.  Penny,  43  Texas  560;  Hills 
V.  Looniis,  42  Vt.  502;  Bird  v.  Wilkinson,  4  Leigh  266;  Cadman  v. 
Peter,  118  U.  S.  731;  Lance's  Appeal,  112  Pa.  St.  456;  Matheny  v. 
Sandford,  26  W.  Va.  385;  Workman  v.  Greening,  115  111.  477;  Bailey 
V.  Bailey,  115  111.  551;  Jones  v.  Blake,  33  Minn.  362;  Miller  v.  Ausenig, 
2  Wash.  22;  McMillon  v.  Bisscll,  63  Mich.  66;  Murdock  v.  Clark  (Cal.), 
24  Pac.  Rep.  272;  Gilchrist  f.  Boswick,  33  W.  Va.  168;  Broughton  '■. 
Vasquez,  73  Cal.  325;  Ashton  V.  Shepherd,  120  Ind.  64;  McPherson  r. 
Hayward,  81  Me.  329;  Hart  V.  Epstein,  71  Tex.  752;  Hanks  v.  Rhodes, 
128  111.  404;  Tower  V.  Fetz,  26  Neb.  706;  Hall  V.  Arnott,  80  Cal.  348; 
Jackson  v.  Jones,  74  Tex.  104;  Book  v.  Bessley,  138  Mo.  455;  Boob 
V.  Wolff,   148  Mo.  355;   Chance  v.  Jennings,    159  Mo.  544. 

ssBassett  V.  Bassett,  10  N.  H,  64;  Porter  v.  Nelson,  4  N.  H.  130; 
Boody  V.  Davis,  20  N.  H.  140.  By  statute,  in  Georgia,  the  admissibility 
of  parol  evidence  is  limited  to  cases  of  fraud  in  the  procurement  of  the 
absolute  deed.  Code  Ga.  (1873),  p.  609;  Spence  v.  Steadman,  49  Ga. 
133;  Broach  V.  Barfield,  57  Ga.  601;  Mitchell  v.  Fullington,  83  Ga.  301. 
In  Pennsylvania  a  similar  statute  has  been  enacted.  Smolly  v.  Ulrich 
(Pa.),  19  Atl.  Rep.  305.  In  Connecticut  it  has  been  held  to  be  a 
doubtful  question.     Osgood  f.  Thompson  Bk.,  30  Conn.  27. 

09  Washburn  v.  Merrills,  1  Day,  139;  French  v.  Burns,  35  Conn.  359; 
Spence  v.  Steadman,  49  Ga.  133;  Biggars  v.  Bird,  55  Ga.  650;  Skinner 
r.  Miller,  5  Litt.  86;  Blanchard  v.  Kenton,  4  Bibb.  451;  Green  v.  Sher- 
rod,  105  N.  C.  197;  Coutcher  v.  Mulr's  Exr.  (Ky.),  13  S.  W.  435.  And 
if  the  deed  is  made  absolute  so  as  to  cover  up  a  usurious  contract,  it 
314 


CH.    XI.]  MORTGAGES.  §    233 

ceived  only  in  a  court  of  equity,  and  although  perhaps  the 
majority  of  the  courts  apply  the  rule  in  every  case,  irrespec- 
tive of  any  question  of  fraud,  yet,  upon  a  closer  analysis  of 
the  cases,  it  will  be  found  that  in  no  case  does  the  court  of 
equity  interfere  and  permit  the  introduction  of  parol  evi- 
dence, unless  the  circumstances  of  the  case  are  such  as  would 
make  the  vendee  guilty  of  at  least  constructive  fraud  in  in- 
sisting upon  the  deed  being  treated  as  an  absolute  convey- 
ance.'*" In  any  case,  the  evidence  must  be  clear  and  free 
from  doubt  as  to  the  intention  to  execute  a  mortgage  in  order 

will  be  such  a  ground  of  fraud  in  Kentucky  as  will  admit  parol  evi- 
dence. Murphy  v.  Trigg,  1  Mon.  72;  Cook  v.  Colyer,  2  B.  Mon.  71; 
Price  V.  Grover,  40  Md.  102 ;  Kelly  v.  Bryan,  6  Ired.  Eq.  283 ;  Brothers 
r.  Harrill,  2  Jones  Eq.  209;  Glisson  v.  Hill,  Id.  256;  Arnold  v.  Mat- 
tison,  3  Rich.  Eq.  153. 

60  In  most  of  the  States  where  the  rule  is  broad,  as  above  stated,  it  is 
held,  to  employ  the  language  of  Mr.  Jones,  that  "  fraud  in  the  use  cf 
the  deed  is  as  much  a  ground  for  the  interposition  of  equity  as  fraud 
in  its  creation."  Jones  on  Mortg.,  Sec.  288;  Pierce  V.  Robinson,  13 
Cal.  116;  Conwall  v.  Evill,  4  Ind.  67;  O'Neill  v.  Capelle,  62  Mo.  202; 
Moreland  r.  Barnhart,  44  Texas,  275,  283;  Strong  v.  Stewart,  4  Johns. 
Ch.  167.  In  Horn  v.  Ketelas  (46  N.  Y.  605),  the  New  York  Court 
said :  "  It  is  too  late  to  controvert  the  proposition,  that  a  deed,  ab- 
solute upon  its  face,  may,  in  equity,  be  shown,  by  parol  or  other  ex- 
trinsic evidence,  to  have  been  intended  as  a  mortgage."  s.  c.  Finch's 
Sel.  Cas.  p.  1106,  citing,  Holmes  v.  Grant,  8  Paige,  243;  Robinson  V. 
2  Edw.  Chy.  R.  138;  Strong  v.  Stewart,  4  J.  C.  R.  167;  Clark  v.  Henry, 
2  Cow.  324;  Murray  v.  Walker,  31  N.  Y.  309.  Parol  proof,  to  es- 
tablish that  an  absolute  deed  is,  in  fact,  a  mortgage,  is  held  competent 
in  the  following  cases:  Holmes  V.  Warren,  145  Cal.  457,  78  Pac.  Rep. 
954;  Conkey  r.  Rex,  212  111.  444,  72  N.  E.  Rep.  370;  Clark  v.  Sea- 
greaves,  186  Mass.  430,  71  N.  E.  Rep.  370;  Faulkner  v.  Cody,  91  N.  Y. 
S.  633;  McGill  v.  Thome,  70  S.  C.  65,  48  S.  E.  Rep.  994;  Hursey  v. 
Hursey  (W.  Va.  1904),  49  S.  E.  Rep.  367;  Schneider  v.  Reed  (Wis. 
1905),  102  N.  W.  Rep.  571;  N.  W.  Fire  Ins.  Co.  r.  Lough  (N.  D.  1904), 
102  N.  W.  Rep.  160;  Foster  v.  Rice  (Iowa,  1904),  101  N.  W.  Rep.  771; 
Welborn  v.  Dixon,  70  S.  C.  108,  49  S.  E.  Rep.  232;  Gerhardt  v.  Tucker, 
187  Mo.  46,  85  S.  W.  Rep.  552.  The  test  to  determine  whether  or  not 
a  deed  is  a  mortgage  is  the  subsequent  existence  of  a  debt.  Holmes  v. 
Warren,  145  Cal.  457,  78  Pac.  Rep.  954;  Conkey  v.  Rex,  212  111.  444, 
72  N.  E.  Rep.  370. 

315 


i   234  MORTGAGES.  [I'ART  I. 

that  a  deed  absolute  on  its  face  may  by  parol  evidence  be  con- 
verted into  a  mortgage."^  It  is  to  be  understood,  however, 
that  the  deed  cannot  be  shown  to  be  a  mortgage,  so  as  to  dis- 
turb the  title  of  a  purchaser  from  the  grantee,  in  reliance 
upon  his  apparent  absolute  title.®^ 

§  234.  Contemporaneous  agreements. —  If  the  deed  be  in 
fact  a  mortgage,  not  only  will  no  parol  evidence  be  admitted 
to  show  that  such  was  not  the  intention  of  the  parties,  but 
it  is  also  impossible  by  any  'contemporaneous  agreement  of 
the  most  formal  character  to  withdraw  from  the  mortgage 
the  rights  which  are  incident  thereto,  or  to  change  the  obli- 
gations of  the  parties  thereunder  in  any  manner  whatsoever. 
The  right  to  redeem  after  condition  broken  can  never  be 
taken  away  by  such  an  agreement.  The  agreement  is  simply 
■•'oid.'^^     Neither  can   the   mortgage   provide   for  redemption 

eiCadman  v.  Peters,  118  Pa.  St.  73;  Lance's  Appeal,  112  Pa.  St.  456; 
Matheney  V.  Sandford,  20  W.  Va.  386;  Bentley  v.  O'Bryne,  111  111.  53; 
Parmer's  Admr.  v.  Parmer,  88  Ala.  545;  Fisher's  Appeal,  132  Pa.  St. 
488;  Langes  v.  Muservey  (Iowa),  45  N.  W.  Rep.  732;  Armor  v.  Spald- 
ing (Colo.),  23  Pac.  Rep.  789;  Franklin  v.  Ayers,  22  Fla.  645;  Mc- 
Millan V.  Bissell,  63  Mich.  66;  Jameson  v.  Emerson,  82  Me.  359;  San- 
born V.  Magee  (Iowa),  44  N.  W.  Rep.  720;  Sherrer  v.  Harris  (Ark.), 
13  S.  W.  Rep.  730;  Jones  v.  Pierce  (Pa.),  19  Atl.  Rep.  689;  Winstou 
V.  Burrell  (Kan.),  24  Pac.  Rep.  477;  Strong  v.  Strong,  27  111.  App. 
148;  s.  c.  126  111.  301;  Shattuck  V.  Bascom,  55  Hun,  14  Null  V.  Fries, 
110  Pa.  St.  521;  Munger  v.  Casey  (Pa.  St.),  17  Atl  Rep.  36;  Town- 
send  I*.  Petersen,  12  Colo.  491;  Jackson  v.  Jones,  74  Tex.  104.  As  a 
condition  to  the  review  of  a  deed,  to  ascertain  if  it  will  be  held  to  be  a 
mortgage,  the  plaintiff  must  generally  offer  to  redeem  as  to  the  alleged 
mortgage.  Gerhart  v.  Tucker,  187  Mo.  46,  85  S.  W.  Rep.  552.  But  see, 
Marvin  v.  Prentice,  49  How.  Pr.  385. 

62  Jackson  V.  Lawrence,  117  U.  S.  679;  Parrott  v.  Baker,  82  Ga.  364. 

63  Wing  V.  Cooper,  37  Vt.  181;  Clark  v.  Henry,  2  Cow.  324;  Henry  v. 
Davis,  7  Johns.  Ch.  40;  Vanderhaize  v.  Haques,  13  N.  J.  244;  Olden- 
baugh  V.  Bradford,  67  Pa.  St.  104;  Rankin  v.  Mortimere,  7  Watts,  372; 
Baxter  v.  Child,  39  Me.  110;  Johnston  v.  Gray,  16  Serg.  &  R.  361; 
Murphy  v.  Calley,  1  Allen,  107;  Clark  v.  Condit,  18  K  J.  Eq.  358; 
Batty  V.  Snook,  5  Mich.  231;  Thompson  v.  Davenport,  1  Wash.  (Va.) 
125;    Eaton   v.   Whiting,    3   Pick.    484;    Wynkoop    v.   Cowing,   21    111. 

316 


CH.    XI.]  ilCnTGAGES.  §    235 

within  a  shorter  period  than  what  is  allowed  by  law,  nor  im- 
pose an  increased  rate  of  interest  after  breach  of  the  condi- 
tion, nor  require  anything  else  which  would  in  the  slightest 
degree  curtail  the  right  to  redeem."* 

§  235.  Subsequent  agreements. —  But  it  is  possible  for  the 
mortgagor  by  a  subsequent  agreement,  either  to  deprive  him- 
self entirely  of  the  equity  of  redemption,  or  to  limit  its  exer- 
cise.    But  in  view  of  the  peculiar  relation  of  the  parties, 

570;  Cherry  v.  Bowen,  4  Sneed  415;  Willetts  r.  Burgess,  34  111.  494.  An 
agreement  to  turn  a  mortgage  into  an  absolute  deed,  is  one  that  finds  no 
favor,  in  equity,  as  the  maxim  is,  "  once  a  mortgage  always  a  mort- 
gage." McCauley  v.  Smith,  132  N.  Y.  524;  Finch's  Sel.  Cas.  1110; 
Carr  v.  Carr,  52  N.  Y.  251;  Morris  v.  Nixon,  1  How.  (U.S.)  118; 
Villa  V.  Rodigues,  12  Wall.  323,  4  Kent's  Com.  143;  Seton  V.  Slade,  7 
Ves.  265;  Newcomb  v.  Bonham,  1  Vern.  7;  Co.  Lit.  205  a,  n.  96;  1 
Spence  Eq.  Jur.  693;  Miami  Ex.  Co.  V.  U.  S.  Bank,  Wright  (Ohio), 
253;  Youle  f.  Richards,  1  N.  J.  Eq.  534;  McClurkan  V.  Thompson,  69 
Pa.  St.  305. 

6*  Johnston  V.  Gray,  16  Serg.  &  R,  361;  Howard  v.  Harris,  1  Vern. 
33;  Spurgeon  t".  Collier,  1  Eden,  55;  Mayo  V.  Judah,  5  Munf.  495;  Price 
r.  Perrie,  Freem.  Ch.  257;  Hallifax  v.  Higgens,  2  Vern.  134;  McClur- 
kan V.  Thompson,  69  Pa.  St.  305;  Tooms  v.  Couset,  3  Atk.  261; 
Waters  v.  Randall,  6  Mete.  479;  Chambers  v.  Goldwin,  9  Ves.  271; 
Jenning  v.  Ward,  2  Vern.  520;  Chambers  V.  Goldwin,  9  Ves.  71;  Leith 
f.  Irvine,  1  My.  &  K.  277;  Blackburn  v.  Warwick,  2  Younge  &  C.  92. 
But  it  has  been  held  that  the  right  to  redeem  may  be  postponed  for  a 
reasonable  time  by  the  agreement  of  the  parties.  Talbot  v.  Braddill,  1 
Vern.  183;  Cowdry  v.  Day,  1  Gif.  316.  And  an  agreement  that,  upon 
the  failure  to  pay  interest  or  an  installment  of  the  principal  when  due, 
the  entire  debt  will  fall  due,  is  good,  and  does  not  curtail  the  right 
to  redeem.  Ferris  f.  Ferris,  28  Barb.  29;  People  v.  Supreme  Court,  19 
Wend.  104;  Noyes  r.  Clark,  7  Page,  179;  James  v.  Thomas,  5  B.  & 
Ad.  40;  Basset  v.  Gallagher,  7  Wis.  442;  Ottawa  Plank  Road  v.  Mur- 
ray, 15  111.  336.  Contra,  Tiernan  v.  Hinman,  16  111.  400.  A  failure 
to  pay  the  interest  payments  due  on  the  mortgaged  debt,  is  generally 
sufficient  ground  to  foreclose.  Long  Island  Loan  Co.  v.  Long  Island 
R.  R.  Co.,  178  N.  Y.  588,  70  N.  E.  Rep.  1102.  But  see,  as  to  waiver 
of  interest  payments,  Lawrence  V.  Ward  (Utah,  1904),  77  Pac.  Rep. 
229.  Where  there  is  a  default  as  to  part  of  the  mortgage  debt,  the 
mortgagee  is  entitled  to  foreclose  as  to  the  debt  in  default.  Land  v. 
May,  84  S.  W.  Rep.  489. 

317 


§   236  MORTGAGES.  [PART   I. 

and  the  possibility  of  duress  and  undue  influence  through  the 
perhaps  impeeunious  condition  of  the  mortgagor,  courts  of 
equity  look  with  suspicion  upon  all  such  agreements;  and  if 
there  is  any  improper  advantage  taken  of  his  financial  em- 
barrassment, or  the  transaction  is  in  the  slightest  degree  a 
hard  bargain,  the  agre-^ment  will  be  annulled,  and  the  mort- 
gagor permitted  to  redeem.  For  that  reason  the  purchase  by 
the  mortgagee  of  the  mortgagor's  equity  of  redemption  must 
be  conducted  with  the  most  scrupulous  care,  in  order  to  re- 
move from  the  transaction  all  suspicion  of  fraud.^'' 

§  236.  The  mortgage  debt. —  There  can  be  no  mortgage 
without  a  mortgage  debt.  The  debt  may  be  either  antece- 
dent or  contemporary,  or  it  may  be  incurred  in  the  future, 
the  last  being  known  as  future  advances."*    All  that  is  re- 

85Russel  V.  Southard,  12  How.  (U.  S.)  139;  Trull  r.  Skinner,  17 
Pick.  213;  Falis  v.  Conway  Ins.  Co.,  7  Allen,  49;  Rice  v.  Bird,  4  Pick. 
3.50;  Patterson  v.  Yeaton,  47  Me.  308;  Villa  i'.  Rodriguez,  12  Wall. 
323;  Lawrence  r.  Stratton,  G  Cush.  163;  Holdridge  v.  Gillespie,  2 
Johns.  Ch.  30 ;  Carpenter  v.  Carpenter,  70  111.  457 ;  Baugher  v.  Merry- 
man,  32  Md.  185;  Locke  v.  Palmer,  26  Ala.  312;  Shubert  v.  Standley, 
52  Ind.  46;  Waters  v.  Randall,  6  Mete.  479;  Greene  r.  Butler,  26  Cal. 
602;  Henry  r.  Davis.  7  Johns.  Ch.  40;  Mills  v.  Mills,  26  Conn.  Zi3; 
Wright  r.  Bates,  13  Vt.  341.  A  contract  for  the  purchase  by  the  grantee 
in  a  deed  absolute  in  form,  but  in  fact  a  mortgage,  of  the  equity  of  re- 
demption, will  not  be  sustained  unless  it  is  in  all  respects  fair,  and 
for  an  adequate  consideration.  Faulkner  v.  Cody.  91  N.  Y.  Sup.  633, 
45  Misc.  Rep.  64;  Oliver  v.  Cunningham,  7  Fed.  Rep.  689;  LoCke  r. 
Palmer,  26  Ala.  312;  Sheckell  V.  Hopkins,  2  Md.  Ch.  89;  Hyndman  V. 
Hyndman,  19  Vt.  9,  46  Amer.  Dec.  171.  Where  a  mortgagee  has  ob- 
tained from  the  mortgagor  a  release  of  his  equity  of  redemption,  the 
burden  is  on  him  to  show  that  he  paid  for  the  property  what  it  was 
worth.  Liskey  r.  Snyder,  49  S.  E.  Rep.  (W.  Va.),  515.  After  the 
execution  of  a  mortgage,  the  right  of  the  mortgagee,  or  beneficiary,  in  a 
deed  of  trust,  cannot  be  prejudiced  by  any  subsequent  agreement  or 
conveyance  of  the  mortgagor.  N.  Y.  Merc.  Co.  r.  Thurmond.  186  Mo. 
410.  85  S.  W.  Rep.  333;  Bloomer  v.  Burk  (Minn.  1904),  101  N.  W.  Rep. 
974;  Leech  r.  Karthaus   (Ala.  1904),  37  So.  Rep.  696. 

6«  See  Xewkirk  r.  Newkirk,  56  Mich.  525;  Shores  r.  Doherty,  G:^  Wis. 
153;  Louisville  Bkg.  Co.  v.  Leonard  (Ky.).  13  S.  W.  Rep.  521;  Ilyh-vl 
V.  Habich,  150  Mass.  112;  Fessenden  v.  Taft  (N.  H.),  17  Atl.  Rep.  7' '. 
318 


CH.   XI.]  MORTGAGES.  §    236 

quired  is  that  the  debt  is  sufficiently  described  and  limited  in 
the  mortgage,  so  that  it  may  be  recognized  and  distinguished 
from  other  obligations.®^  Ordinarily,  parol  evidence  is  inad- 
missible to  show  that  the  parties  intended  to  include  in  the 
operation  of  the  mortgage  a  debt  which  is  not  covered  by  the 
description.*^^  But  where  the  description  is  not  sufficiently 
particular  to  make  the  identification  of  the  debt  sure,  parol 
evidence  is  admissible  to  connect  the  debt  with  the  mortgage, 
and  supply  the  deficiencies  of  the  description.**^  It  has  also 
been  held  that  a  mortgage,  given  apparently  for  a  fixed  debt 
already  incurred,  may  be  shown  to  have  been  intended  to  se- 
cure future  advances.^"  It  is  not  necessary  that  the  amount 
of  the  debt  be  stated  in  the  mortgage,  whether  the  sum  be  cer- 
tain or  uncertain.^^  But  although  the  amount  need  not  per- 
haps be  stated  in  the  mortgage,  means  must  be  provided  in  it, 
by  way  of  reference  to  other  papers  or  records,  for  ascertain- 
ing the  amount.  Thus  mortgages  have  been  held  good,  where 
they  were  intended  to  secure  a  general  indebtedness,  such  as, 

87  Robertson  v.  Stark,  15  N.  H.  112;  Partridge  v.  Swazey,  46  Me. 
414;  Hough  r.  Bailey,  32  Conn.  288;  Johns  v.  Church,  12  Pick.  557; 
Warner  v.  Brooks,  14  Gray,  107;  Kellogg  v.  Frazier,  40  Iowa,  502; 
Paine  r.  Benton,  32  Wis.  491;  Boyd  v.  Baker,  43  Md.  182;  Hughes  v. 
Edwards,  9  Wheat.  489;  AuU  v.  Lee,  61  Mo.  160;  Oilman  V.  Moody,  43 
N.  H.  329;  Ray  V.  Hallenbeck,  42  Fed.  Rep.  381;  King  V. 
Kilbride,  58  Conn.  109;  Williams  v.  Silliman,  74  Tex.  626;  Walker 
r.  Rand  (111.),  22  N.  E.  Rep.  1006;  Bank  of  Buffalo  v.  Thompson  (N. 
Y. ) ,  24  X.  E.  Rep.  473 ;  Moran  V.  Gardemeyer,  82  Cal.  96. 

08  Union  Xat.  Bank  v.  International  Bank,  22  111.  App.  652;  s.  c.  123 
111.  510. 

«» Jackson  V.  Bowen,  7  Cow.  13;  Johns  r.  Church,  12  Pick.  557;  Hall 
r.  Tufts,  18  Pick.  455;  Bell  v.  Fleming,  1  Beasl.  13;  Baxter  r:  Mclntire, 
13  Gray,  166;  Babcock  f.  Lisk,  57  111.  327;  AuU  v.  Lee,  61  Mo.  160; 
Crafts  V.  Crafts,  13  Gray,  108;  Shoemaker  v.  Smith  (Iowa),  45  N.  W. 
Rep.  744;  McAleer  v.  McAloer,  31  S.  C.  313;  Blair  V.  Harris,  75  Mich. 
107;  Mosson  f.  Creditors,  41  La.  An.  296. 

ToHuckaba  r.  Abbott,  87  Ala.  409. 

71  Pike  V.  Collins,  33  Me.  38 ;  Somersworth  Sav.  Bk.  i\  Roberts,  38 
X.  H.  22;  Curtis  V.  Flinn,  46  Ark.  70.  Contra,  Hart  f.  Chalker,  14" 
Conn.  77;  Pearce  r.  Hall,  12  Bush,  209;  which  hold  that  where  the 
debt  is  a  certain  fixed  sum,  the  amount  should  be  stated. 

319 


§   236  MORTGAGES.  [PART  L 

"  what  I  may  owe  on  book,"  **  all  the  notes  or  agreements  I 
now  owe,"  "  all  sums  that  the  mortgagee  may  become  liable 
to  pay,"  an  open  book  account,  and  the  like.'-  But  a  debt 
must,  to  at  least  a  reasonable  degree,  conform  to  the  par- 
ticulars of  the  description,  in  order  to  be  covered  by  the 
mortgage."  Generally  the  amount  of  the  advances  need  not 
be  stated,  provided  it  can  be  otherwise  ascertained  by  the  de- 
scription.^* And  where  the  amount  is  stated,  it  is  taken  to 
be  the  limit  of  the  principal  of  the  mortgage  debt,  so  that 
the  mortgage  would  also  cover  the  interest  accrued  to  date  of 
settlement,  although  the  addition  of  such  interest  to  the 
principal  debt  would  make  the  mortgage  debt  exceed  the 
stipulated  amount.^"*  But  the  principal  cannot  exceed  the 
stipulated  amount  in  any  event  except  as  against  the  mort- 
gagor.'*' The  debt  creates  a  personal  obligation,  which  runs 
parallel  with,  but  is  independent  of,  the  mortgage.     The  for- 

72  Merrills  r.  Swift,  18  Conn.  257;  Shirras  v.  Craig,  7  Cranch  34; 
Seymour  r.  Darrow,  31  Vt.  142;  Vanmeter  v.  Vanmeter,  3  Gratt.  148; 
Fisher  r.  Otis,  3  Chand.  83;  DeMott  v.  Benson,  4  Edw.  Ch.  297;  U. 
S.  r.  Strtrges,  1  Paine,  525;  Esterly  v.  Purdy,  50  How.  Pr.  350;  Emery 
V.  Owings,  7  Gill,  488;  Barker  v.  Barker,  62  N.  H.  366;  Farr  r.  Dox- 
tater,  9  X.  Y.  S.  141. 

73  Doyle  f.  White,  26  Me.  341;  Storms  v.  Storms,  3  Bush,  77;  Walker 
r.  Paine.  31  Barb.  213;  Hall  V.  Tufts,  18  Pick.  455;  Babcock  v.  Lisk, 
57  111.  327;  Walker  v.  Rand  (111.),  22  N.  E.  Rep.  1064;  Bank  of  Buf- 
falo V.  Thompson  (N.  Y.),  24  N.  E.  Rep.  473;  Moran  v.  Gardemeyer, 
82  Cal.  96.  But  see  Baxter  V.  Mclntire,  13  Gray,  168.  In  Maryland 
and  New  Hampshire,  there  are  statutes  requiring  the  amount  of  the 
debt  intended  to  be  secured,  to  be  stated  in  the  mortgage.  Pub.  Lien 
Laws  (Md.  1860),  art.  64,  Sec.  2;  Gen.  Stats.  N.  H.  253;  and  where 
the  mortgage  is  for  future  advances,  the  amount  must  be  limited.  Wil- 
son V.  Russell,  13  Md.  494;  Leeds  v.  Cameron,  3  Sumn.  488;  Bank  of 
Willard,  10  N.  H.  210. 

74  Allen  r.  Lathrop.  ^0  Ga.  133;  Crane  r.  Deming,  7  Conn.  387;  U. 
S.  V.  Hooe,  3  Cranch,  73;  Shirras  v.  Craig,  7  Cranch,  34;  Hughes  V. 
Woley,  1  Bibb,  200;  Farr  v.  Doxtater,  9  N.  Y.  S.  141,  and  other  cases 
cited  supra. 

75  Stafford  v.  Jones,  91  N.  C.  189. 

76  Louisville  Bkg.  Co.  f.  Leonard  (Ky.),  13  S,  W.  Rep.  521;  Wagner 
r.  Breed   (Neb),  46  N.  W.  Rep.  286. 

320 


CH.    XI.]  MORTGAGES.  §    236 

raer  obligation  depends  npon  the  privity  of  contract,  and 
binds  only  the  mortgagor  and  his  personal  representatives. 
The  latter  is  an  obligation  in  rem,  resting  upon  the  privity  of 
estate  in  the  mortgaged  land,  and  binds  the  land  into  who- 
soever hands  it  may  come.  But  for  the  support  of  the  mort- 
gage, the  personal  obligation  need  not  exist;  that  is,  the  debt 
need  not,  independently  of  the  mortgage,  be  enforceable  at 
law.  Thus  a  mortgage  by  husband  and  wife  of  the  wife's 
lands,  to  secure  the  note  of  the  wife,  would  be  good,  even 
though  the  wife's  contracts  are  held  to  be  otherwise  abso- 
lutely void.^^  And  so,  likewise,  is  a  mortgage  valid,  al- 
though the  debt  can  no  longer  be  enforced,  because  after  the 
death  of  the  mortgagor,  it  was  not  probated  under  the  call 
of  the  mortgagor's  personal  representatives,^*  So  also  is  the 
mortgage  good  if  the  Statute  of  Limitations  has  run  against 
the  debt.''"  And  it  may  be  stated  generally,  that  the  personal 
liability  of  the  mortgagor  for  the  mortgage  debt  is  not  essen- 
tial to  the  validity  of  the  mortgage,  although  its  absence  may 
constitute  a  circumstance  from  which  it  might  be  inferred 
that  the  transaction  was  intended  to  be  a  conditional  sale, 

"  Bucklin  V.  Bucklin,  1  Abb.  Pr.  242;  see  contra,  Heburn  v.  Warner, 
112  Mass.  271;  17  Am.  Rep.  86;  Taylor  v.  Page,  6  Allen,  86;  Crooker 
V.  Holmes,  55  Me.  1!)5;  20  Am.  Rep.  687;  Wyman  V.  Brown,  50  Me. 
150;  Hoffey  V.  Carey,  73  P.  St.  433;  Neimcewitz  v.  Sohn,  3  Paige,  643; 
Story's  Eq.  Jur.,  Sec.   1399;   Brigham  v.  Potter,  14  Gray,  522. 

78  Hodger  v.  Taylor    (Ark),  13  S.  W.  Rep,  129. 

79  Thayer  v.  Mann,  19  Pick.  537 ;  Hughes  v.  Edwards,  9  Wheat.  489 ; 
Wood  V.  Augustine,  61  Mo.  46;  Kellar  V.  Sinton,  14  B.  Mon.  307; 
Hough  V.  Bailey,  32  Conn.  288;  Birnie  t;.  Main,  29  Ark.  591;  Nevitt  v. 
Bacon,  32  Miss.  212;  Walterraire  v.  Westover,  14  N.  Y,  20;  Heyer  v. 
Pruyn,  7  Paige,  465;  Crooker  v.  Holmes,  65  Me.  105;  Capehart  v. 
Dettrich,  91  N.  C.  344;  Rodriguez  v.  Hayes,  96  Tex.  225;  Benton  Co.  v. 
Czarlinski  (Mo.),  14  S.  W.  Rep.  114.  Contra,  Lord  v.  Morris,  18  Cal. 
482;  Duty  v.  Graham,  12  Texas,  427;  Gower  v.  Winchester,  33  Iowa, 
303;  Chick  v.  Willetts,  3  Kan.  384;  Hagan  v.  Parsons,  67  111,  170. 
This  rule  has  been  changed,  in  Missouri,  by  statute  and  in  that  State, 
after  the  debt  is  barred,  by  limitation,  no  action  will  lie  to  foreclose 
the  mortgage.    R.  S.  Mo.  1899,  Sec.  4276. 

21  321 


§    236  MORTGAGES.  [PART   I. 

instead  of  a  mortgage.**  It  is  usual  for  the  debt  to  be  con- 
tained in  a  separate  writing  as  a  bond  or  note ;  but  that  is  not 
necessary,  since  the  acknowledgment  of  the  debt  in  the  mort- 
gage will  be  a  sufficient  compliance  with  the  provisions  of 
the  Statute  of  Frauds.®^  Nor  is  it  necessary  that  the  recital 
of  the  debt  in  the  mortgage  should  correspond  in  every  re- 
spect with  the  instrument  of  indebtedness.  Any  immaterial 
variation  would  not  affect  its  validity,  and  if  the  variance  was 
material,  as  where  the  amount  was  misstated,  the  mortgage 
would  be  good,  at  least  for  the  amount  stated.®^ 

80  Glagg  r.  Mann,  2  Sumn.  534 ;  Rich  v.  Doane,  35  Vt.  129 ;  Haines 
V.  Thompson,  70  Pa.  St.  442;  Ball  V.  Wyeth,  8  Allen,  278;  Glover  v. 
Tayn,  19  Wend.  518;  Holmes  v.  Grant,  8  Paige  Ch.  243;  Mills  v. 
Darling.  43  Me.  505;  Murphy  v.  Galley,  1  Allen,  108;  Dougherty  V. 
McColgan,  6  Gill  &  J.  285;  Ferris  v.  Crawford,  2  Denio,  595;  Weed 
V.  Coville,  14  Barb.  242;  Salisbury  v.  Philips,  10  Johns.  57;  Elder  V. 
Rouse,  15  Wend.  218;  Conway  v.  Alexander,  7  Craneh,  218;  Scott  r. 
Fields,  7  Watts,  360;  Miami  Ex.  Co.  v.  U.  S.  Bank,  Wright  (Ohio), 
252 ;  Drummond  v.  Richards,  2  Munf.  337 ;  Floyer  v.  Lavington,  1  P. 
Wms.  268;  King  v.  King,  3  P.  Wms.  258;  Mitchell  v.  Burnham,  44  Me. 
286. 

81  Where  there  is  no  separate  obligation  to  pay  the  debt,  in  order 
that  there  may  be  a  personal  liability  upon  the  mortgagor,  the  mort- 
gage must  contain  a  covenant  for  payment,  or  at  least  an  acknowledg- 
ment of  the  existence  of  the  debt.  Brown  v.  Cascaden,  43  Iowa,  103; 
Elder  v.  Rouse,  15  Wend.  218;  Yates  v.  Aston,  4  Q.  B.  182;  Smith  v. 
Rice,  12  Daly,  307;  Frank  v.  Pickle,  2  Wash.  55;  Baum  V.  Tompkin, 
110  Pa.  St.  569. 

82  Russell  r.  Southard,  12  How.  (U.  S.)  139;  Mitchell  V.  Barnham, 
44  Me.  246;  Brookings  V.  White,  49  Me.  483;  Brown  V.  Dewey,  1 
Sandf.  Ch.  50;  Jaques  v.  Weeks,  7  Watts,  268;  Wharf  V.  Howell,  5 
Bing.  499;  Rice  v.  Rice,  4  Pick.  349;  Whitney  v.  Buckman,  43  Cal. 
536.  As  to  variations,  see  Cushman  V.  Luther,  53  N.  H.  562;  Hough 
V.  Bailey,  32  Conn.  289;  Kimball  v.  Myers,  21  Mich.  276;  Stoddart  V. 
Hart,  23  N.  Y.  556;  Large  V.  Doren,  14  N.  J.  Eq.  203,  and  cases 
cited  supra,  preceding  note.  The  acceptance  of  a  new  mortgage  and 
note,  in  renewal  of  an  older  note  and  mortgage,  is  held  to  be  a  com- 
plete discharge  of  the  older  debt,  in  Missouri.  Benton  Land  Co.  r. 
Zeitner,  182  Mo.  251,  81  S.  W.  Rep.  193.  But  see,  White  V.  Steven- 
son, 144  Cal.  104,  77  Pac.  Rep.  828.  When  a  note,  secured  by  a  mort- 
gage, is  declared  void,  the  mortgage  is  also  void.  Ft.  Wayne  Co.  tv 
Sihler  (Ind.  1904),  72  N.  E.  Rep.  494.     A  mortgagor  who  still  reta;    ^ 

322 


CH.    XI.]  MORTGAGES.  §    237 

§  237.  Mortgpages  for  the  support  of  the  mortgagee. —  There 
is  a  class  of  mortgages  which,  instead  of  being  given  as  se- 
curity for  the  payment  of  a  debt,  are  conditioned  to  provide 
and  secure  the  support  of  the  mortgagee  or  some  other  per- 
son. The  obligation  to  support,  unless  it  is  imposed  upon  all 
claiming  under  the  mortgagor,  is  a  personal  one,  and  will 
prevent  his  alienation  of  the  mortgaged  premises,  or  their 
sale  under  execution,  except  by  the  consent  of  the  mort- 
gagee.*^ Neither  is  the  mortgagee's  interest  assignable,  for 
the  benefit  derived  from  the  mortgage  is  of  a  personal  na- 
ture.** If  the  mortgagor  fails  to  perform  the  condition 
through  his  inability  to  furnish  the  support,  he  may  redeem 
the  land  by  the  payment  of  a  sum  of  money,  which  would  be 
equivalent  to  the  support  to  be  rendered.*^     Usually  the  mort- 

liis  ownership  of  the  mortgaged  property  may  make  a  valid  contract  of 
extension  of  the  original  mortgage,  which  will  be  binding  upon  a  sub- 
sequent grantee,  whether  he  takes  with  or  without  notice  of  such  ex- 
tension. White  V.  McMillan,  79  Pac.  Rep.  405;  George  r.  Butler,  26 
Wash.  456,  67  Pac.  Rep.  263,  57  L.  R.  A.  396,  90  Am.  St.  Rep.  756; 
Denny  v.  Palmer,  26  Wash.  469,  67  Pac.  Rep.  268,  90  Am.  St.  Rep.  766; 
Raymond  v.  Bales,  26  Wash.  493,  67  Pac.  Rep.  269;  Hanna  v.  Kasson, 
26  Wash.  568,  67  Pac.  Rep.  271. 

S3  Bryant  v.  Erskine,  55  Me.  156;  Mitchell  v.  Burnham,  57  Me.  322; 
Bethlehem  v.  Annis,  40  N.  H.  34;  Brown  v.  Leach,  35  Me.  41;  Eastman 
f.  Batchelder,  36  N.  H.  141;  Marsh  v.  Austin,  1  Allen,  235;  Wales  V. 
Mellen,  1  Gray,  512;  Soper  v.  Guernsey,  71  Pa.  St.  224.  But  see 
contra,  Ottaquechee  Sav.  Bank  v.  Holt,  58  Vt.  166.  Until  condition  is 
broken,  the  mortgagor  is  entitled  to  possession.  Flanders  v.  Parker,  9 
N.  H.  201;  Soper  v.  Guernsey,  supra,  and  other  cases  supra.  Some- 
times the  condition  is  in  the  alternative,  to  support  the  mortgagee  or  to 
pay  a  stipulated  sum.  In  that  case,  the  mortgagor  has  the  right  to 
elect  within  a  reasonable  time,  and  both  parties  are  bound  by  his  elec- 
tion. Bryant  r.  Erskine,  supra;  Soper  v.  Guernsey,  supra;  Furbish  v. 
Sears,  2  Cliff.  454. 

8<  Bethlehem  v.  Annis,  40  N.  H.  34;  Bryant  v.  Erskine,  55  Me.  153. 

85  Bryant  v.  Erskine,  55  Me.  153;  Austin  v.  Austin,  9  Vt.  42;  Bethle- 
hem V.  Annis,  40  N.  H.  44;  Wilder  v.  Whittemore,  15  Mass.  262;  Fiske 
r  Fiske,  20  Pick.  499;  Hojrt  V.  Bradley,  27  Me.  242.  But  it  has  been 
held  that  no  such  right  of  redemption  exists;  that  where  the  condition 
calls  for  the  support  of  the  mortgagee  or  some  other  person,  the  land 
cannot   be  redeemed  by   the  payment  of  a  sum   of   money.     Soper   v. 

323 


§   238  MORTGAGES.  [PART    I. 

gage  specifies  the  place  where  the  support  is  to  be  furnished ; 
but  where  it  is  silent  on  that  subject,  the  law  requires  that  it 
should  be  tendered  in  some  place  convenient  to  both  mort- 
gagor and  mortgagee.  But  if  they  are  residing  in  the  same 
locality,  or  on  the  same  land,  the  mortgagor  cannot  insist 
upon  supplying  it  at  his  own  table,  or  in  his  own  house.^® 
These  mortgages  are  seldom  found  in  actual  practice,  and  by 
a  reference  to  the  cases  cited  below  it  will  be  observed,  that 
they  have  obtained  a  greater  prevalence  in  the  New  England 
States  than  elsewhere.®^ 

§  238.  What  may  be  mortgaged. —  Any  vested  interest  or 
estate  in  lands,  legal  or  equitable,^*  is  capable  of  being  mort- 
gaged. An  estate  for  years  or  for  life  can  be  mortgaged  as 
well  as  the  fee.  So  also  can  a  vendee  in  possession  under  a 
parol  or  written  contract  of  sale  mortgage  his  interest  in  the 
land.*®     And  the  fact  that  the  land  is  in  the  adverse  pos- 

Guernsey,  71  Pa.  St.  219.  See,  also,  Evans  v.  Norris,  6  Mich..  369; 
Hawkins  v.  Clermont,  15  Mich.  513;  and  it  is  said  to  rest  in  the 
discretion  of  the  court,  whether  such  relief  shall  be  granted.  Henry  v. 
Tupper.  29  Vt.  358;  Dunklee  v.  Adams,  20  Vt.  415.  Upon  the  breach 
of  the  condition,  the  mortgagee  may  enter  into  possession,  until  the 
mortgage  is  redeemed  or  foreclosed.  Flanders  v.  Lamphear,  9  N.  H. 
201 ;  Eastman  v.  Batchelder,  36  N.  H.  141.  The  mortgage  may  be  fore- 
closed in  the  same  manner  as  other  mortgages.  Marsh  V.  Austin,  1 
Allen,  235;    Daniels  v.   Eisenlord,   10  Mich.  454. 

88  Holmes  v.  Fisher,  13  N.  H.  9;  Flanders  V.  Lamphear,  supra; 
Thayer  v.  Richards,  19  Pick.  398;  Hubbard  v.  Hubbard,  12  Allen,  586; 
Fiske  V.  Fiske,  20  Pick.  499;  Powers  v.  Martin   (Vt.),  20  Atl.  Rep.  105. 

87  See  cases  cited  in  notes  1   and  2,  supra. 

88  Morgan  v.  Field,  35  Kan.  162. 

89Lanfair  v.  Lanfair,  18  Pick.  304;  Attorney-General  v.  Parmort,  5 
Paige,  620;  Hogan  v.  Brainard,  45  Vt.  294;  Phila.,  etc.,  R.  R.  v. 
Woelpper,  64  Pa.  St.  371;  2  Am.  Rep.  596;  John  v.  Nut,  19  Wend.  559; 
Wilson  V.  Wilson,  32  Barb.  328;  Neligh  v.  Mechenor,  11  N.  J.  Eq.  53«; 
Sinclair  v.  Armitage,  1  Beasl.  174;  Baker  v.  Bishop  Hill  Colony,  45 
111.  264;  Hosmer  v.  Carter,  68  111.  98;  Van  Rensselaer  V.  Dennison,  35 
N.  Y.  393;  Kidd  v.  Teeple,  22  Cal.  255;  Hutchins  v.  King,  1  Wall.  53; 
Miller  v.  Tipton,  Blackf.  238;  Edwards  V.  McKernan,  55  Mich.  520; 
Adams  v.  Smith,  19  Nev.  259  (estate  for  years),  Balen  v.  Mercier,  75 
324 


CH,    XI.]  MORTGAGES.  §    238 

session  of  a  third  person,  does  not  prevent  its  being  mort- 
gaged as  between  the  parties  to  it,  at  least  in  equity.^"  If 
the  mortgagor  is  a  devisee,  who  mortgages  the  land  before 
the  claims  against  the.  estate  of  his  devisor  have  been  set- 
tled, the  mortgage  is  valid,  but  the  mortgagee  takes  his  title 
subject  to  these  claims.*^  And  likewise  are  the  interests  of 
the  mortgagor  and  mortgagee,  in  whatever  light  they  may 
be  held,  possible  subjects  of  a  mortgage.  Where  the  mort- 
gagee conveys  the  estate  by  way  of  a  mortgage,  his  mort- 
gagee takes  it  subject  to  the  mortgagor's  right  to  redeem; 
but  in  such  a  case  notice  to  the  mortgagor  of  the  second  mort- 
gage  by  the  mortgagee  would  require  the  mortgagor  to  make 
payment  to  the  sub-mortgagee,  so  that  he  might  protect  his 
interests  against  the  mortgage.®^  And  where  the  mortgagor 
mortgages  his  equity  of  redemption,  the  second  mortgagee  has 

Mich.  42;  Gordon  V.  Avery,  102  N.  C.  532.  And  the  mortgage  of  a 
vendee's  equity  under  an  executory  contract  of  sale,  when  duly  re- 
corded, can  be  enforced  both  against  the  vendor  and  his  subsequent 
vendee,  notwithstanding  the  subsequent  surrender  of  the  contract  to  the 
vendor.  Davis  f.  Davis,  88  Ala.  523.  But  not  when  the  vendee  has 
never  had  p(?fesession.  See  Bright  V.  Buckman,  39  Fed.  Rep.  243 ;  Gor- 
don V.  Avery,  102  N.  C.  532.  But  a  mere  possibility,  not  coupled  with 
an  interest,  or  a  personal  right,  such  as  the  right  of  pre-emption,  cannot 
be  made  the  subject  of  a  mortgage.  Skipper  V.  Stokes,  42  Ala.  255; 
Bayler  i\  Commonwealth,  40  Pa.  St.  37.  Generally,  "  whatever  can  be 
sold,  can  also  be  mortgaged."  Talman  v.  Casualty  Co.,  90  Mo.  App. 
274;  Low  V.  Pew,  108  Mass.  347;  Purcell  V.  Mather,  35  Ala.  570; 
Penn  v.  Ott,  12  La.  An.  233;  Gilbert  v.  Penn,  12  La.  An.  235.  The 
right  of  a  beneficiary  of  sharing  in  the  proceeds  of  sale  of  the  land  can- 
not be  mortgaged.  Wood  V.  Reeves,  23  S.  C.  382.  But  land  held  by 
right  of  pre-emption  may  be  mortgaged  in  California.  Whitney  V. 
Buckman,  13  Cal.  530;  Henderson  V.  Grammar,  66  Cal.  232. 

90  Hall  V.  Westcott,  15  R.  I.  373. 

»i  Shaw  r.  Barksdale,  25  S.  C.  204. 

»2  Henry  v.  Davis,  7  Johns.  Ch.  40;  Johnson  t'.  Blydenburgh,  31  N, 
Y.  432;  Murdock  v.  Chapman,  9  Gray,  156;  Coffin  v.  Loring,  0  Allen, 
154;  Slee  V.  Manhattan  Co.,  1  Paige,  48;  Solomon  v.  Wilson,  1  Whart^ 
241;  Brown  f.  Tyler,  8  Gray,  135;  Harrison  V.  Burlingame,  48  Hun, 
212;  Hidden  V.  Kretschmar,  37  Fed.  Rep.  466;  Murray  v.  Porter,  26 
Neb.  288. 

325 


§   238  MORTGAGES.  [PART   I. 

all  the  rights  of  the  first  mortgagee,  except  that  he  can  only 
satisfy  his  debt  out  of  the  mortgaged  property  after  the 
prior  mortgagee  has  received  payment  in  fuU.®^  The  fran- 
chise of  a  railroad  corporation  can  -be  mortgaged,  and  the 
mortgage  will  cover  whatever  real  property  may  be  acquired 
by  the  corporation  after  the  execution  of  the  mortgage,  and 
used  in  the  exercise  of  the  franchise.  Whether  the  rolling 
stock  of  a  railroad  will  pass  with  a  mortgage  of  its  franchise 
depends  upon  the  further  question,  whether  such  property  is 
held  to  be  real  or  personal ;  in  regard  to  which  the  courts  have 
rendered  contrary  decisions.  If  the  rolling  stock  is  consid- 
ered to  be  realty,  it  will  pass  with  the  mortgage,  otherwise  it 
will  not.'* 

93  Garza  v.  Howell  (Tex.  1904),  85  S.  W.  Rep.  461;  Dickinson  v. 
Duckworth    (Ark.    1905),    85   S.   W.   Rep.    82. 

»<  Pierce  v.  Emery,  32  N.  H.  484;  Hoyle  v.  Plattsburg,  etc.,  R.  R., 
54  N.  Y.  314;  Willink  v.  Morris  Canal,  3  Green  Ch.  377;  Galveston  R. 
R.  r.  Cowdrey,  11  Wall.  481;  Dunham  v.  Railway  Co.,  1  Wall.  254; 
Rennock  v.  Coe,  23  How.  (U.  S.)  117;  Benjamin  v.  Elmira,  etc.,  R.  R. 
Co.,  54  N.  Y.  675;  Howe  v.  Freeman,  14  Gray,  566;  Morrill  v.  Noyes, 
56  Me.  458;  Emerson  v.  European,  etc.,  R.  R.,  67  Me.  387;  24  Am.  Rep. 
39;  Sillers  v.  Lester,  48  Miss.  513;  Phillips  v.  Winslow,  18  B.  Mon. 
431;  Brown  V.  Sharpe's  Rifle  Co.,  29  Conn.  282;  Phila.,  R.  R.  V. 
Woelpper,  64  Pa.  St.  366;  3  Am.  Rep.  596;  Chew  V.  Barret,  11  Serg. 
&  R.  389;  Parkhurst  V.  Northern,  etc.,  R.  Co.,  19  Md.  472.  But  only 
so  much  of  the  franchise  will  pass  to  the  mortgagee,  as  is  necessary 
to  make  the  grant  beneficial  to  him.  Eldridge  v.  Smith,  34  Vt.  484. 
As  to  whether  rolling-stock  is  real  or  personal  property,  see  ante, 
Sec.  2.  For  equitable  right  of  mortgagee  to  enforce  his  lien  upon 
property  not  in  esse,  as  ungrown  corn,  see,  Swinney  v.  Gontz,  83  Mo. 
App.  549. 

326 


SECTION  II. 

THE  RIGHTS  AND  LIABILITIES  OF  MORTGAGORS  AND  MORTGAGEES. 

Section   239.  The  mortgagor's  interest. 

240.  The  mortgagee's  interest. 

241.  Devise  of  the  mortgage. 

242.  Merger  of  interests. 

243.  Possession  of  mortgaged  premises. 

244.  Special  agreements  in  respect  to  the  possession. 

245.  Rents  and  profits. 

246.  Mortgagee's   liability   for   rents   received. 

247.  Tenure  between  mortgagor  and  mortgagee. 

248.  Insurance  of  the  mortgaged  premises. 

249.  Assignment  of  the  mortgage. 

250.  Common-law  assignment. 

251.  Assignment  imder  the  lien  theory. 

252.  Assignment  of  the  mortgagor's  interest. 

253.  Rights  and  liabilities  of  assignees. 

254.  Effect  of  payment  or  tender  of  payment. 

255.  Who  may  redeem. 

256.  What  acts  extinguish  the  mortgage. 

257.  The  effect  of  a  discharge. 

258.  When  payment  will  work  an  assignment. 

259.  Registry  of  mortgages,  and  herein  of  priority. 

260.  Rule  of  priority  from  registry,  its  force  and  effect. 

261.  Registry   of  assignments    of   mortgages   and   equities   of 

redemption. 

262.  Tacking  of  mortgages. 

263.  Priority  in  mortgages  for  future  advances. 

264.  Satisfaction  of  the  mortgage  on  the  records. 

§  239.  The  mortgagor's  interest. —  Whatever  may  be  the 
view  taken  in  any  particular  State  of  the  character  of  a  mort- 
gage, whether  it  is  construed  as  a  conveyance  of  an  estate  in 
lands,  or  only  the  grant  of  a  lien,  the  mortgagor's  interest 
before  condition  broken  is  a  legal  estate,  the  only  difference 
being,  that  under  the  common-law  theory  of  the  mortgage,  it 

327 


15    239  RIGHTS   OP    MORTGAGOR   AND    MORTGAGEE.  [PAHT    I. 

is  an  estate  in  reversion,  or  more  strictly  a  possibility  of 
reverter,  while  under  the  lien  theory  it  is  a  present  vested 
estate,  only  liable  to  be  destroyed  by  the  enforcement  of  the 
lien.  It  is  subject  to  the  same  rules  of  conveyance  and  de- 
scends to  the  heirs  as  any  other  kind  of  real  estate."'  And  it 
may  be  stated  as  a  general  proposition  that,  except  as  against 
the  mortgagee,  he  is  clothed  with  all  the  rights  and  liabilities 
which  are  usually  incident  to  an  estate  in  lands.""     Upon  the 

•8  Co.  Lit.  205  a,  Butler's  note,  96;  Thome  v.  Thorne,  1  Vern.  141; 
Casborne  V.  Scarfe,  1  Atk.  606;  Ledyard  v.  Butler,  9  Paige  Ch.  132; 
Baxter  v.  Dyer,  5  Ves.  656;  Huckins  v.  Straw,  34  Me.  166;  Orr  v. 
Hadley,  36  N.  H.  575;  White  V.  Rittenmyer,  30  Iowa,  272;  Wright  V. 
Rose,  2  Sim.  &  S.  323;  Bourne  v.  Bourne,  2  Hare,  35;  Bigelow  v.  Wil- 
son,  1   Pick.  485. 

»8Willington  V.  Gale,  7  Mass.  138;  Blaney  v.  Pearce,  2  Greenl.  132; 
Felch  tJ.  Taylor,  13  Pick.  133;  Bird  v.  Decker,  64  Me.  550;  Collins  t'. 
Torry,  7  Johns.  278;  Schuykill  Co.  V.  Thoburn,  7  Serg.  &  R.  411; 
Hitchcock  V.  Harrington,  6  Johns.  290;  Clark  v.  Reyburn,  1  Kan.  281. 
Trustees  of  Donations  v.  Streeter,  64  N.  H.  106;  Tilden  f.  Greenwood, 
149  Mass.  567.  Except  as  against  the  mortgagee  and  his  privies,  the 
mortgagor  may  maintain  actions  to  recover  possession  or  to  recover 
damages  for  waste.  Huckins  V.  Straw,  34  Me.  166;  Stinson  v.  Ross, 
51  Me.  556;  Den  v.  Dimon,  5  Halst.  156;  Bird  v.  Decker,  64  Me.  550; 
Woods  V.  Hildebrand,  46  Mo.  284;  2  Am.  Rep.  513;  Pueblo,  etc.,  Valley 
R.  R.  Co.  V.  Beshoar,  8  Col.  32.  In  Meyer  v.  Campbell,  12  Mo.  603, 
it  was  held  that  ejectment  will  not  lie  by  the  mortgagor  after  the 
breach  of  the  condition.  And  where  the  mortgagee  has  taken  posses- 
sion, an  action  for  waste  cannot  be  maintained  by  the  mortgagor,  un- 
less the  inheritance  has  been  injured  by  the  trespass.  Sparhawk  r. 
Bagg,  16  Gray,  583.  And  an  action  by  the  mortgagee  for  trespass  is  a 
bar  to  a  similar  action  for  the  same  offense  by  the  mortgagor.  James 
V.  Worcester,  141  Mass.  361.  The  mortgagor's  widow  has  dower  in 
the  equity,  if  she  has  not  released  her  dower  in  the  land,  and  may  re- 
deem the  land  from  the  mortgagee.  Titus  v.  Neilson,  5  Johns.  Ch.  452 ; 
Van  Duyne  v.  Thayre,  14  Wend.  233;  Hawley  t?.  Bradford,  9  Paige  Ch. 
200;  Snow  t'.  Stevens,  15  Mass.  278;  Eaton  v.  Simonds,  14  Pick.  98; 
MeCabe  v.  Bellows,  7  Gray,  148;  see  post.  Sec.  255.  The  mortgagee,  or 
trustee,  in  Missouri,  is  held  to  take  the  legal  title,  for  purposes  of  se- 
curity, in  all  cases  where  the  deed  or  mortgage  purports  to  convey  the 
estate.  Markwell  V.  Markwell,  157  Mo.  326,  57  S.  W.  Rep.  1078; 
Mathews  v.  Mo.  Pac.  Co.,  142  Mo.  645,  44  S.  W.  Rep.  802.  But  see, 
Dickerson  v.  Bridges,  147  Mo.  235,  48  S.  W.  Rep.  825;  Pence  V.  Gab- 
bert,  70  Mo.  App.  201. 
328 


CH.    XI.]  RIGHTS   OF    MORTGAGOR   AND    MORTGAGEE.  §    230 

breach  of  the  condition,  under  the  common-law  theory  that 
the  mortgage  conveyed  a  defeasible  estate,  the  estate  became 
absolute  in  the  mortgagee,  leaving  nothing  in  the  mortgagor 
but  the  equitable  right  to  redeem  the  estate.  This  was  called 
the  equity  of  redemption.  It  was  no  estate  in  the  land,  sim- 
ply an  equitable  right  to  regain  the  legal  estate.  At  com- 
mon law,  therefore,  the  interest  of  the  mortgagor  after  con- 
dition broken,  although  still  considered  real  estate  and 
descendible  to  the  heirs  of  the  mortgagor,  and  capable  of 
alienation  by  the  usual  methods,  could  not  be  levied  upon  by 
creditors.  But  in  this  country  at  the  present  day  the  equity 
of  redemption  is  generally  held  to  have  all  the  characteris- 
tics and  qualities  of  a  legal  estate,  and  this  too  in  those  States 
whose  courts  still  cling  to  the  common-law  theory  of  mort- 
gages. The  equity  is  now  generally  subject  to  levy  and  sale 
under  execution.*^ 

»Tlt  is  liable  for  debts.  Gushing  v.  Hurd,  4  Pick.  253;  Febeiger  V. 
Craighead,  4  Dall.  151;  Perrin  v.  Read,  35  Vt.  2;  Grace  V.  Mercer,  10 
B.  Mon.  157;  Crow  v.  Tinsley,  16  Dana,  402;  Waters  r.  Stewart,  1 
Caines*  Cas.  47;  Fernald  v.  Linscott,  6  Greenl.  234;  Huntington  r.  Cot- 
ton, 31  Miss.  253;  Wiggin  V.  Heyward,  118  Mass.  514;  Hall  i'.  Tun- 
nell,  1  Houst.  320;  Van  Ness  V.  Hyatt,  13  Pet.  294;  Jackson  V.  Willard, 
4  Johns.  41 ;  Bosse  v.  Johnson,  73  Tex.  608.  At  common  law,  it  was 
not  subject  to  levy  and  sale  under  execution,  although  perhaps  always 
liable  in  equity.  Plunkett  V.  Penson,  2  Atk.  290;  Forth  V.  Norfolk,  5 
Madd.  504;  Van  Ness  v.  Hyatt,  13  Pet.  294;  Hill  v.  Smith,  2  McUan, 
446.  But  in  most  of  the  States  the  courts  have  either  by  their  ad- 
judications assumed  that  it  was  a  common-law  right,  or  the  right 
has  been  expressly  given  by  statute.  Statutes  have  been  passed  in  Ala- 
bama, Connecticut,  Florida,  Hlinois,  Massachusetts,  Mississippi,  Maine, 
North  Carolina,  South  Carolina  and  several  other  States.  2  Washburn 
on  Real  Prop.  163.  But  the  mortgagee  cannot  reduce  the  mortgage-debt 
to  judgment,  and  levy  upon  the  equity  of  redemption.  Lyster  V.  Dol- 
land,  1  Ves.  431;  Washburn  V.  Goodwin,  17  Pick.  137;  Atkins  v.  Sawyer, 
1  Pick.  351;  Palmer  v.  Foote,  7  Paige  Ch.  437;  2  N.  Y.  Rev.  Stat.  368; 
Goring  v.  Shreve,  7  Dana,  67;  Deaver  v.  Parker,  2  Ired.  Eq.  40;  Camp 
V.  Coxe,  1  Dev.  &  B.  52;  Tice  v.  Annin,  2  Johns.  Ch.  125;  Parker  v. 
Bell,  37  Ala.  358;  Duck  v.  Sherman,  2  Dougl.  (Mich.)  176;  Baldwin  V. 
Jenkins,  23  Miss.  206;  Waller  v.  Tate,  4  B.  Mon.  529;  Hill  v.  Smith, 
7.  McLean,  446.     Contra,  Porter  v.  King,  1  Me.  297;  Trimm  v.  Marsh,  58 

329 


§   240  RIGHTS  OF   MORTGAGOR  AND   MORTGAGEE.         [PART   I. 

§  240.  The  mortgagee's  interest. —  Under  the  common-law 
theory,  the  mortgagee  has  the  freehold  estate  both  before  and 
after  the  breach  of  the  condition.  Before,  it  is  a  defeasible 
estate,  and  after,  an  absolute  estate.  His  interest,  therefore, 
was  a  legal  estate ;  it  descended  to  his  heirs,  and  required  the 
same  formalities  of  conveyance."^  But  under  the  lien  theory 
he  is  said  to  have  only  a  chattel  interest,  until  foreclosure. 
The  mortgage  is  not  real  estate ;  it  is  personal  property,  which 
descends  with  the  debt  to  the  personal  representatives.  And 
now  the  equity  rule  substantially  prevails,  whether  the  mort- 
gagee's interest  is  considered  real  estate  or  personal  prop- 
erty, and  after  his  death  the  mortgagee's  personal  repre- 
sentatives exercise  all  his  rights  under  the  mortgage,  a  re- 
lease or  conveyance  by  the  heir  having  no  effect  upon  the 
rights  of  the  personal  representatives.  The  heir  takes  the 
mortgage  as  trustee  for  the  personal  representatives."®     If  a 

>i.  Y.  599;  13  Am.  Rep.  G23;  Crocker  V.  Frazier,  52  Me.  406;  Freeby  v. 
Tupper,  15  Ohio,  467;  Pierce  v.  Potter,  7  Watts,  475.  But  if  the 
mortgage-debt  has  been  assigned  to  a  bona  fide  holder,  without  the 
mortgage,  such  assignee  may  levy  upon  the  equity  of  redemption 
Crane  v.  Marsh,  4  Pick.  131;  Andrews  v.  Fisk,  101  Mass.  424;  Waller 
V.  Tate,  4  B.  Mon.  529.  And  it  has  also  been  held  that  the  first  mort 
gagee  may  Ie\'y  upon  the  equity  of  redemption  from  the  second  mortgage 
Johnson  r.  Stevens,  1  Cush.  431.  See  also,  Collins  v.  Davis,  132  N.  C 
106,  43  S.  E.  Rep.  579;  Rotschild  V.  Lumber  Co.,  139  Ala.  571,  36  So, 
Rep.  785;  Lest  v.  Armbruster,  143  Cal.  663,  77  Pac.  Rep.  653. 

88  2  Washburn  on  Real  Prop.  36,  97 ;  Co.  Lit.  205  a,  Butler's  note,  96 
Jones  on  Mort.,  Sees.  11-59;  see  ante,  Sec.  222;  Williams  on  Real 
Prop.  422.  The  mortgagee's  title  is  in  the  nature  of  a  base,  or 
qualified  fee,  the  term  of  its  existence  being  measured  by  the  existence 
of  the  mortgage  debt.  When  the  debt  is  paid,  or  barred,  the  title  of 
the  mortgagee  is  determined,  by  operation  of  law.  Bradley  v.  Light- 
cap,  195  U.  S.  2-4,  49  L.  Ed.  65;  Lightcap  v.  Bradley,  186  111.  510, 
58  X.  E.  Rep.  221;  Esker  v.  Heffernan,  159  111.  38,  41  N.  E.  Rep.  1113. 

o»  Connor  v.  Whitmore,  52  Me.  185;  Collamer  v.  Langdon,  29  Vt. 
32;  Taft  V.  Stevens,  3  Gray,  504;  Douglas  v.  Darin,  57  Me.  121;  Kinna 
V.  Smith,  2  Green  Ch.  14;  Dewey  v.  Van  Deusen,  4  Pick.  19;  Jack- 
son r.  Delancy,  11  Johns.  365;  s.  c.  13  Johns.  535;  Chase  v.  Lockerman, 
11  Gill  &  J.  185;  Barnes  v.  Lee,  1  Bibb.  520;  White  v.  Rittenmeyer, 
30  Iowa,  272;  Richardson  v.  Hildreth,  8  Cush.  225;  Webster  v.  Calden, 

330 


CH.    XI.]  RIGHTS   OF    MORTGAGOR   AXD    MORTGAGEE.  §    242 

statute  prohibits  foreign  corporations  from  lending  money 
within  the  State,  such  corporations  cannot  acquire  any  valid 
interest  in  a  mortgage,  as  a  mortgagee.  Such  a  mortgage 
would  be  void.^ 

§  241.  Devise  of  the  mortgage. —  It  has  been  held  that  a 
general  devise  in  terms  of  lands,  tenements  and  heredita- 
ments, in  the  absence  of  any  other  evidence  of  intention,  will 
be  construed  to  cover  the  mortgages  owned  by  the  devisor.^ 
But  those  decisions  are  from  the  English  courts,  which  sustain 
the  common-law  theory  of  mortgages,  and  it  is  to  be  supposed 
that  in  the  States,  in  which  the  lien  theory  has  been  more  or 
less  followed,  a  different  conclusion  would  be  reached.' 

§  242.  Merger  of  interests. —  The  interests  of  the  mortgagor 
and  mortgagee  are  not  separate  and  distinct  titles  to  the  land. 
They  constitute  together  the  one  title,  which  can  alone  be 
predicated  of  property.  When,  therefore,  the  two  interests 
unite  in  one  person,  the  lesser  or  subordinate  interest  will 
generally  merge  in  the  greater,  and  be  extinguished.     The 

56  Me.  204;  Haskins  v.  Hawkes,  108  Mass.  379;  Palmer  v'.  Stevens,  11 
Cush.  147;  George  v.  Baker,  3  Allen,  326;  Green  v.  Hunt,  Cooke 
(Tenn.),  344;  Demarest  v.  Wynkoop,  3  Johns.  Ch.  145.  And  the 
trustee  in  a  deed  of  trust  has  practically  the  same  powers  that  a 
mortgagee  usually  possesses.  Robeson  v.  Dunn  (S.  D.  1903),  96  N.  W. 
Rep.  104;  Old  Colony  Trust  Co.  v.  Wichita,  123  Fed.  Rep.  762.  The 
heirs  of  a  wife,  who  has  permitted  the  title  to  stand  in  her  husband's 
name,  take  subject  to  a  mortgage,  executed  by  him,  in  Missouri. 
Johnston  v.  Johnston,  173  Mo.  91,  73  S.  W.  Rep.  202,  61  L.  R.  A.  166, 

1  Farrior  v.  New  Eng.  Mortgage,  etc.,  Co.,  88  Ala.  275.  Generally, 
only  the  State,  in  a  direct  proceeding,  can  object  to  a  violation  of  a 
State  statute,  by  a  corporation.  Life  Ins.  Co.  r.  Smith,  117  Mo.  261. 
And  unless  the  act  makes  the  violation  of  the  statute  void,  the  con- 
tract is  valid.     Cowell  v.  Colo.  Spgs.  Co.,  100  U.  S.  55,  25  L.  Ed.  549. 

2  Jackson  v.  Delancey,  13  Johns.  553-559;  Winn  r.  Littleton,  1  Vern. 
4;  Galliers  v.  Moss.  9  B.  &  C.  267;  Braybroke  r.  Inskip,  8  Ves.  417  n; 
Co.  Lit.  205  a,  Butler's  note,  96;  contra,  Casborne  v.  Scarfc,  1  Atk. 
605;  Atty.-Gen.  v.  Vigor.  8  Ves.  276;  Strode  f.  Russell,  2  Vern.  625; 
Wilkins    v.    French.    20    Me.    HI. 

8  Moore  f .  Cornell.  69  Pa.  St.  3. 

331 


§    242  RIGHTS   OF    MORTGAGOR   AND    MORTGAGEE.  [PART   I. 

mortgagee's  interest  would  be  lost  in  the  mortgagor's.  But 
to  effect  a  merger  of  interests,  they  must  come  together  in 
one  person  at  the  same  time,  and  in  the  same  character  or  ca- 
pacity. A  conveyance  of  the  equity  to  a  trustee  of  the  mort- 
gagee, or  to  the  mortgagee  as  trustee  of  another,  would,  in 
neither  ease,  cause  a  merger.*  It  is  also  a  general  rule  in 
equity  that  the  union  of  the  two  estates  in  one  person  will  not 
be  permitted  to  work  a  merger,  where  from  the  circumstances, 
an  injury  would  result  to  parties  interested  in  either.  The 
existence  of  an  outstanding  second  mortgage  would  prevent 
a  merger  in  the  hands  of  a  person  holding  the  first  mort- 
gage and  the  equity  of  redemption."     But  if  the  senior  mort- 

4  Hunt  r.  Hunt,  14  Pick.  384;  James  V.  Morey,  2  Cow.  246;  Barnett 
r.  Denniston,  5  Johns.  Ch.  35;  Stantons  v.  Thompson,  49  N.  H.  272; 
Burhans  v.  Hutchinson,  25  Kan.  625,  37  Am.  Rep.  274;  Gregory  v. 
Savage,  32  Conn.  264;  Shin  V.  Fredericks,  56  111.  443;  Warren  v.  War- 
ren, 30  Vt.  530 ;  Clary  f.  Owen,  15  Gray,  525 ;  Bean  v.  Boothby,  57  Me. 
295;  Purdy  V.  Huntington,  42  N.  Y.  334,  1  Am.  Rep.  532;  Barker  v. 
Flood,  103  Mass.  474;  Model  Lodging  House  Assn.  v.  City  of  Boston, 
114  Mass.  133;  Pratt  v.  Bank  of  Bennington,  10  Vt.  293;  Champney^ 
r.  Coope,  32  N.  Y.  543;  Sherman  v.  Abbott,  18  Pick.  448;  Bailey  v. 
Richardson,  15  E.  L.  &  E.  218;  Dickason  r.  Williams,  129  Mass.  182, 
37  Am.  Rep.  316;  Thomas  v.  Simmons,  103  Ind.  538;  Bredenberg  v. 
Landrum  (S.  C),  10  S.  E.  Rep.  956;  Collins  r.  Stocking,  98  Mo.  290. 
The  purchase,  by  a  husband,  of  a  mortgage,  given  by  his  wife,  on  her 
separate  estate,  is  not  merged  in  the  legal  estate  of  the  husband,  exist- 
ing when  the  mortgage  was  given.  Skinner  f.  Hale,  76  Conn.  223,  56 
Atl.  Rep.  524.  Nor  is  the  mortgage  debt,  paid  by  a  wife,  out  of  her 
separate  estate,  merged  in  her  life  estate,  that  she  acquires  on  the 
death  of  her  husband,  but  the  debt  can  be  enforced  by  her,  against  the 
premises.     Warner  v.  York,  25  Ohio  Cir.  Ct.  310. 

5  Wade  V.  Howard,  6  Pick.  492;  s.  c.  11  Pick.  289;  Evans  v.  Kimball, 
1  Allen,  240;  Cook  r.  Brightly,  46  Pa.  St.  439;  Frazee  r.  Inslee,  I  Green 
Ch.  239;  Grover  v.  Thatcher,  4  Gray,  526;  Bell  v.  Woodward,  34  N.  H. 
90;  Hill  r.  Pixly,  63  Barb.  200;  Warren  f.  Warren,  30  Vt.  530;  Land 
V.  Lane,  8  Mete.  517;  Lyon  v.  Mcllvaine,  24  Iowa,  9;  New  England 
Jewelry  Co.  r.  Merriam,  2  Allen,  390;  Stantons  r.  Thompson,  49  N.  H. 
272;  Green  v.  Currier,  63  N.  H.  563;  Cohn  f.  Hoffman,  45  Ark.  376; 
Hospes  r.  Ahnstedt,  83  Mo.  473;  Georgia  Chemical  Works  r.  Cart- 
ledge,  77  Ga.  547;  dementis  v.  Griswold,  46  Hun,  377;  Scrivner  V. 
Dietz,  84  Cal.  295;  Williams  v.  Brownlee  (Mo.),  13  S.  W.  Rep.  1049. 

332 


CH.    XI.]  RIGHTS   OF    MORTGAGOR   AND    MORTGAGE  §    242 

gagee  enters  into  possession,  after  the  assignment  to  him  of 
the  equity,  he  is  not  accountable  to  the  junior  mortgagee  for 
the  rents.*  It  is  an  almost  universal  rule,  that  equity  will 
keep  alive  the  mortgage  in  the  hands  of  the  holder  of  the 
equity  whenever  its  merger  would  do  injury  to  one  in  any. 
way  interested  therein.  Where,  however,  it  is  the  plain  in- 
tention of  the  parties,  or  in  no  wise  injurious  to  their  inter- 
ests, that  a  merger  should  result  from  the  union  of  the  inter- 
ests, equity  will  not  interfere  in  their  behalf.^    "When  a  judg- 

8  Gray  v.  Nelson,  77  Iowa,  63.  Where  it  is  to  the  interest  of  a  wife 
to  keep  alive  a  mortgage  debt,  after  death  of  her  husband,  there  is  no 
merger  of  the  mortgage  into  her  life  estate,  by  a  payment  of  the  debt. 
Warner  f.  York,  25  Ohio  Cir.  Ct.  310.  Where  there  is  an  agreement 
between  the  holders  of  the  junior  and  senior  mortgages  that  a  purchase 
of  the  equity  of  the  mortgagor,  under  the  junior  mortgage  should  not 
constitute  a  merger,  the  payment  thereon  will  not  discharge  the  debt. 
Continental  Title  &  Trust  Co.  v.  Devlin,  209  Pa.  380,  58  Atl.  Rep.  843. 
Although  a  husband  and  wife  are  the  principal  stockholders  in  a  cor- 
poration, a  purchase  by  the  corporation  of  a  mortgage  on  the  wife's 
property,  will  not  amount  to  a  purchase,  so  as  to  constitute  a  merger. 
Juckett  V.  Fargo  Merc.  Co.  (S.  D.  1905),  102  N.  W.  Rep.  604.  Where 
one  of  two  joint  mortgagors  pays  off  and  takes  an  assignment  of  the 
mortgage  to  himself,  the  lien  of  the  mortgage  is  not  merged  in  the  fee, 
where  he  deeded  his  interest,  subject  to  the  mortgage.  Saint  v.  Corn- 
wall, 207  Pa.  270,  56  Atl.  Rep.  440. 

T  Forbes  V.  Moffat,  18  Ves.  384 ;  Gibson  V.  Crehore,  3  Pick.  475 ;  Hunt 
0.  Hunt,  14  Pick.  374;  Bell  v.  Woodward,  34  N.  H.  90;  St.  Paul  v. 
Viscount  Dudley  and  Ward,  15  Ves.  167 ;  Grover  v.  Thatcher,  4  Gray, 
526;  Moore  V.  Beasom,  44  N.  H.  215;  Millspaugh  r.  McBride,  7  Paige 
Ch.  609;  Judd  v.  Seekins,  62  N.  Y.  266;  Vanderkemp  v.  Shelton,  11 
Paige  Ch.  28;  Loomer  v.  Wheelwright,  3  Sandf.  Ch.  157;  Simonton  V. 
Gray,  34  Me.  50;  Van  Wagner  v.  Brown,  26  N.  J.  L.  196;  Duncan  V. 
Smith,  31  N.  J.  L.  325;  Mallory  v.  Hitchcock,  29  Conn.  127;  Wallace 
V.  Blair,  1  Grant  Cas.  75;  Brown  v.  Lapham,  3  Cuah.  551;  Eaton  v. 
Simonds,  14  Pick.  98;  James  t?.  Morey,  2  Cow.  285;  Savage  v.  Hall,  12 
Gray  364;  Fletcher  v.  Chase,  16  N.  H.  42;  Weeks  v.  Ostrander,  52  N. 
Y.  Super,  a.  512,  «.  c.  15  Abb.  N.  C.  143;  Carpenter  v.  Gleason,  58  Vt. 
244;  Ann  Arbor  Sav.  Bank  v.  Webb,  56  Mich.  377;  Watson  v.  Dundee 
Mortgage,  etc.,  Co.,  12  Ore.  474;  Clark  v.  Clark  (Wis.),  45  N.  W.  Rep. 
121;  Newton  v.  Manwaring,  10  N.  Y.  S.  347;  Shipley  v.  Fox,  69  Md. 
572;  Citizens  Bank  v.  Hejams  (La.),  7  So.  Rep.  700;  Crombie  v.  Rosen- 
bach,  19  Abb.  N.  C.  312;  Christy  v.  Scott,  31  Mo.  App.  331;  Cox  v.  Led- 

333 


§   243  RIGHTS  OF   MORTGAGOR  AND   MORTGAGEE.         [PART  L 

ment  in  personam  is  obtained  against  the  mortgagor,  on  the 
note  or  bond  which  is  secured  by  the  mortgage,  the  note  or 
bond  is  merged  in  the  judgment,  but  not  the  mortgage,^  and 
so  likewise  is  there  no  merger  of  the  judgment  in  personam, 
although  the  mortgage  which  secures  it  may  become  merged.® 

§  243.  Possession  of  the  mortgaged  premises. —  It  is  a  gen- 
eral custom  in  this  country,  for  the  mortgagor  to  retain  pos- 
session until  the  breach  of  the  condition,  and  even  afterwards 
it  is  not  usual  for  the  mortgagee  to  enter  into  possession  until 
the  land  has  been  decreed  to  him  by  foreclosure.  But  in  those 
States  where  the  common-law  theory  prevails  in  its  full  force, 
the  mortgagee  may  enter  into  possession  at  any  time  after 
the  delivery  of  the  mortgage.  He  possesses  the  freehold,  and 
can  exercise  all  the  rights  of  ownership  over  the  land.  And 
if  the  mortgagor  should  resist  his  demand  for  possession  he 
may  bring  an  action  of  ejectment  for  its  recovery.^"     But 

ward,  124  Pa.  St.  335 ;  Gray  v.  Nelson,  77  Iowa  63 ;  Mcllhaney  v.  Shoe- 
maker, 76  Iowa  416;  Belknap  v.  Dennison,  61  Vt.  520;  Collins  v. 
Stocking,  98  Mo.  290;  Beeckman  V.  Butler,  77  Iowa  128;  Sanford  f. 
.Van  Arsdall,  53  Hun  70. 

sLalanne  v.  Payne   (La.),  7  So.  Rep.  481. 

9  Clark  t'.  Simmons,  55  Hun  175.  "  That  a  merger  of  the  lien  of  the 
first  mortgage  would  operate  to  the  disadvantage  of  the  mortgagee, 
there  can  be  no  question.  If  the  merger  is  not  allowed  to  take  place, 
he  is,  of  course,  bound  to  take  subject  to  the  second  mortgage,  in  case 
of  a  purchase  of  the  equity;  but  upon  a  sale  he  would  be  entitled  to 
receive  out  of  the  proceeds  all  the  money  due  on  the  first  mortgage,  or 
he  could  keep  the  property  by  paying  only  the  excess  it  brings  over  the 
first  mortgage,  whereas,  if  there  is  a  merger,  he  would  be  bound  to  pay 
the  second  mortgage  in  full  in  order  to  keep  the  property  he  bought, 
or  obtain  any  of  the  proceeds  of  its  sale."  See  also,  Hines  V.  Ward, 
121  Cal.  118,  53  Pac.  Rep.  427;  Srivner  v.  Dietz,  84  Cal.  298,  24  Pac. 
Rep.  171;  Brooks  v.  Rice,  56  Cal.  428;  Rumpp  i:  Gerkens,  59  Cal.  496; 
Carpenter  v.  Brenham,  40  Cal.  221;  Henderson  v.  Grammar,  66  Cal.  335, 
5  Pac.  Rep.  488;  Wilson  v.  White,  84  Cal.  243,  24  Pac.  Rep.  114;  Tol- 
man  v.  Smith,  85  Cal.  289,  24  Pac.  Rep.  743;  Shaflfer  v.  McCloskey,  101 
Cal.  580,  36  Pac.  Rep.  196;  Jones  on  Mortgages,  Sees.  870,  873. 

lOErskine  V.  Townsend,  2  Mass.  493;  Goodwin  v.  Richardson,  11 
Mass.  473;  Knox  v.  Easton,  38  Ala.  345;  Bradley  v.  Fuller,  23  Pick.  1; 

334 


CH.    XI.]  RIGHTS   OF    MORTGAGOR   AND   MORTGAGEE.  §    24.' J 

in  some  of  the  States,  where  the  common  law  has  been  modi- 
fied in  this  respect  by  statute  or  judicial  legislation,  the 
mortgagor  is  entitled  to  possession  until  condition  broken, 
but  after  condition  broken  the  mortgagee  has  the  right  of 
possession,  the  same  as  at  common  law.^^  In  other  States, 
where  the  lien  theory  has  met  with  more  or  less  favor,  the 
mortgagee  is  not  entitled  to  possession  until  the  mortgage  is 
foreclosed  and  the  estate  made  absolute  in  the  mortgagee.^* 

Page  V.  Robinson,  10  Cush.  99;  Wales  v.  Miller,  1  Gray  512;  Karnes  V. 
Lloyd,  52  111.  113;  Howard  v.  Houghton,  64  Me.  445;  Stewart  v.  Bar- 
row, 7  Bush  368;  Sedman  V.  Sanders,  2  Dana  68;  Treat  V.  Pierce,  53 
Me.  77;  Sumwalt  v.  Tucker,  34  Md.  89;  Annapolis,  etc.,  R.  R.,  v.  Gault, 
39  Md.  115;  Hemphill  v.  Ross,  66  N.  C.  477;  Jackson  V.  Dubois,  4 
Johns.  216;  Jackson  v.  Hull,  10  Johns.  481;  Ellis  V.  Hussey,  66  N.  C. 
501 ;  Tryon  t\  Munson,  77  Pa.  St.  250 ;  Youngman  v.  R.  R.  Co.,  65  Pa. 
St.  278;  Den  v.  Stockton,  12  N.  J.  L.  322;  Shute  v.  Grimes,  7  Blaekf. 
1;  Ely  V.  McGuire,  2  Ohio  223;  Carpenter  v.  Casper,  6  R.  1.  542;  Vance 
r.  Johnson,  10  Humph.  214;  Faulkner  V.  Brockenbrough,  4  Rand.  245; 
Tripe  v.  Marcy,  39  N.  H.  439;  Trustees  v.  Dickson,  1  Freem.  Ch.  474; 
May  V.  Fletcher,  14  Pick.  525.  And  he  may  likewise  have  trespass 
against  the  mortgagor,  even  before  condition  broken,  for  waste,  or  for 
resisting  his  entry.  Smith  V.  Johns,  3  Gray  517;  Northampton  Mills 
f.  Ames,  8  Mete.  1;  Page  V.  Robinson,  10  Cush.  99;  Newall  v.  Wright, 
3  Mass.  138;  Furbish  v.  Goodwin,  29  N.  H.  321;  Clark  V.  Bench,  supra. 

iiCneever  v.  Rutland  &  B.  R.  R.,  39  Vt.  653;  Sutton  r.  Mason,  38 
Mo.  120;  Mclntyre  v.  Whitfield,  13  Smed.  &  M.  88;  Kannady  v.  Mc- 
Carron,  18  Ark.  166;  Watson  v.  Dickens,  12  Smed.  &  M.  608;  Reynolds 
V.  Canal  &  Banking  Co.  of  N.  O.,  30  Ark.  520;  Hall  v.  Tennell.  1 
Houst.  320;  Reddick  V.  Gressman,  49  Mo.  389;  Pease  V.  Pilot  Knob  Iron 
Co.,  49  Mo.  124;  Sanderson  v.  Price,  1  Zab.  646;  Shields  t'.  Lozear.  34 
N.  J.  L.  496;  3  Am.  Rep.  256;  Hagar  V.  Brainerd,  44  Vt.  294;  Walker 
r.  King,  44  Vt.  601;  Allen  v.  Everly,  24  Ohio  St.  602;  Rands  t'.  Ken- 
dall, 15  Ohio  671.  In  the  following  late  cases  the  mortgagor  has  been 
held  entitled  to  possession,  until  breach:  Davis  V.  PoUand  (1904),  99 
Me.  345,  59  Atl.  Rep.  520;  Benton  Land  Co.  V.  Zeitler,  182  Mo.  251,  81 
S.  W.  Rep.  193;  White  v.  Smith,  174  Mo.  186,  73  S.  W.  Rep.  610;  Os- 
tengreu  v.  Rice,  104  111.  App.  428;  Watkins  v.  Kaolin  Mfg.  Co.,  131  N. 
C.  536,  42  S.  E.  Rep.  983,  60  L.  R.  A.  617;  Yingling  v.  Redwine  (Okl. 
1902),  69  Pac.  Rep.  810;  DuBois  v.  Bowles  (Colo.  1902),  69  Pac 
Rep.  1067. 

12  Civil  Code  Cal.,  Sec.  2927;  Grattan  v.  Wiggins,  23  Cal.  26;  Drake 
V.  Root,  2  Colo.  685;  Vaaon  v.  Ball,  56  Ga.  268;  2  G.  &  H.  Stat.  335 

33f) 


§    244  RIGHTS   OF    MORTGAGOR   AND    MORTGAGEE.  [PART   I. 

And  it  has  been  held  in  some  of  the  last  class  of  eases,  that 
although  the  mortgagor  is  lawfully  in  possession,  and  cannot 
be  ejected  even  after  the  condition  has  been  broken,  yet  if  he 
delivers  the  possession  to  the  mortgagee,  he  cannot  by  any 
action  regain  it  as  long  as  the  mortgage  is  not  satisfied.  His 
only  remedy  is  to  redeem  the  mortgage." 

§  244.  Special  agfreements  in  respect  to  possession. —  But  the 
right  to  possession  before  foreclosure  may  be  changed  by 
agreement  of  the  parties.  If,  according  to  the  law,  the  mort- 
gagor is  entitled  to  possession,  by  agreement  the  mortgagee 
may  be  given  a  right  of  entry  at  any  time  before  foreclosure; 

(Ind.)  ;  Smith  v.  Parks,  22  Ind.  61;  Chase  V.  Ahbott,  20  Iowa  158; 
Dassler's  Stat.  Kan.  (1876),  Ch.  68  Sec.  1;  Ducland  v.  Rousseau,  2 
La.  An.  168;  Comp.  Laws  Mich.  (1871)  1775;  Gorham  v.  Arnold,  22 
Mich.  247;  Berthold  v.  Fox,  13  Minn.  501;  Trimm  v.  Marsh,  54  N.  Y. 
604;  Besser  v.  Hawthorne,  3  Ore.  129;  Hughes  v.  Edwards,  9  Wheat. 
489;  Durand  V.  Isaacks,  4  McCord  54;  Walker  v.  Johnson,  37  Texas  127. 
But  where  the  common-law  rule  has  been  changed  by  statute,  the 
statute  will  not  affect  the  mortgagee's  right  of  possession  under 
mortgages  already  in  existence.  The  statute  will  only  apply  to  future 
mortgages.  Blackwood  v.  Van  Fleet,  11  Mich.  252;  Morgan  V.  Wood- 
ward, 1  Ind.  321 ;  Shaw  V.  Hoadley,  8  Blackf.  165. 

]3Hubbell  V.  Moulson,  53  N.  Y.  225;  Watson  v.  Spence,  20  Wend. 
260;  Den  v.  Wright,  7  N.  J.  L.  175;  Mitchell  v.  Bogan,  11  Rich.  L. 
681;  Hennesy  v.  Farrell,  20  Wis.  42;  Roberts  v.  Sutherlin,  4  Ore.  219; 
Frink  v.  LeRoy,  49  Cal.  314;  Eyster  v.  Gaff,  2  Colo.  228;  Avery  v. 
Judd,  22  Wis.  262;  Newton  v.  McKay,  30  Mich.  380;  Cook  v.  Cooper, 
18  Ore.  142;  Rodriguez  v.  Hayes,  76  Tex.  225.  In  those  States  where 
the  right  of  possession  is  held  to  be  in  the  mortgagor,  before  breach 
of  the  condition,  however,  the  right  is  not  effected  by  the  fact  that 
the  mortgage  is  in  the  form  of  an  absolute  deed  or  conveyance.  Ying- 
ling  V.  Redwine  (Okla.  1902),  69  Pac.  Rep.  810;  DuBois  v.  Bowles 
(Colo.),  69  Pac.  Rep.  1067.  A  mortgagee  who  purchases  and  goes  into 
possession,  under  a  void  foreclosure  sale,  is  none  the  less  a  mortgagee 
in  possession,  with  all  the  accompanying  rights.  Investment  Co.  V. 
Adams  (Wash.  1905),  79  Pac.  Rep.  625.  In  so  far  as  the  Illinois  stat- 
ute of  1872,  applies  to  mortgagees  in  possession,  making  their  title 
forfeited,  if  their  master's  deed  be  not  taken  in  a  specified  time,  after 
the  expiration  of  the  time  for  redemption,  the  statute  is  held  to  be 
void,  by  the  United  States  Supreme  Court,  as  impairing  the  obligation 
of  the  contract.  Bradley  v.  Lightcap,  195  U.  S.  2-4,  49  L.  Ed.  65. 
336 


CH.    XI.]  RIGHTS   OF   MORTGAGOR   AND    MORTGAGEE.  §    245 

and  if  the  mortgagee  has  by  law  the  right  of  possession,  his 
right  of  entry  may  be  restrained  until  condition  broken,  or 
taken  away  altogether.  ^  If  the  purposes  and  the  object  of  the 
mortgage  require  the  possession  to  be  given  to  the  party  not 
entitled  thereto  by  law,  the  agreement  to  vest  it  in  him  will  be 
implied  from  those  circumstances.  The  implication  must, 
however,  be  a  necessary  one ;  otherwise  nothing  but  an  ex- 
press agreement  will  have  that  effect.^*  The  mortgagor  may 
also  agree  to  pay  rent  for  his  occupation  of  the  land  during 
the  continuance  of  the  mortgage.  In  which  ease  the  relation 
of  landlord  and  tenant  arises  between  the  mortgagee  and 
mortgagor,  and  on  default  in  the  payment  of  the  rent,  the 
mortgagee  could  recover  the  possession.^' 

§  245.  Rents  and  profits. —  Whoever  is  in  actual  possession 
is  entitled  to  the  rents  and  profits  issuing  from  the  mortgagotl 

1*  Flagg  V.  Flagg,  11  Pick.  475;  Smith  v.  Parks,  22  Ind.  61;  Norton 
V.  Webb,  35  Me.  218;  Brown  V.  Leach,  35  Me.  39;  Knox  l'.  Easton,  38 
Ala.  345;  Stewart  V.  Barrow,  7  Bush  368;  Redman  v.  Sanders,  2  Dana 
68;  Brown  V.  Stewart,  1  Md.  Ch.  87;  Leighton  v.  Preston,  9  Gill  201; 
O'Neill  V.  Gray,  39  Hun  566;  Bryson  V.  June,  55  N.  J.  Super.  Ct.  374. 
But  the  right  will  not  be  implied  from  a  silent  acquiescence  in  the 
mortgagor's  possession,  or  inferred  from  a  clause  in  the  mortgage  that 
the  mortgagee  shall  take  possession  upon  default.  Stowell  V.  Pike,  2 
Greenl.  387;  Brown  v.  Cram,  1  N.  H.  169;  Rogers  v.  Grazebrook,  8 
Q.  B.  898.  But  see  Jackson  V.  Hopkins,  18  Johns.  487.  Nor  would  a 
parol  agreement  change  the  law  in  reference  to  the  right  of  possession. 
Colman  V.  Packard,  16  Mass.  39. 

15  Murray  v.  Riley,  140  Mass.  490.  It  is  not  of  the  essence  of  a 
mortgage  for  the  mortgagor  to  remain  in  possession.  Moore  v.  Boogin, 
111  La.  490,  35  So.  Rep.  716.  Possession  delivered  to  a  mortgagee  to 
cut  timber  to  pay  taxes  will  not  authorize  the  cutting  of  timber  for 
other  purposes.  Holbrook  t?.  Greene,  98  Me.  171,  56  Atl.  Rep.  659.  On 
taking  possession,  the  mortgagee  is  not  required  to  give  notice  to  the 
mortgagor.  Ante  idem.  But  a  mortgagee  in  possssion  is  not,  in 
the  absence  of  agreement,  entitled  to  any  compensation  for  care  of 
property.  Moss  v.  Odell,  141  Cal.  335;  Turner  v.  Johnson,  95  Mo.  431. 
7  S.  W.  Rep.  570;  Elmer  V.  Leper,  25  N.  J.  Eq.  475;  Blunt  v.  Syms,  40 
Hun  566.  But  see  contra,  Gerish  V.  Black,  104  Mass.  400;  Brown  V. 
Bank,  148  Mass.  300,  19  N.  E.  Rep.  382 ;  Waterman  v.  Curtis,  20  Com. 
24  L 

22  337 


§   245  RIGHTS  OP   MORTGAGOR   AND   MORTGAGEE.         [PART  I. 

premises.  If  it  be  the  mortgagor,  he  takes  them  free  from 
any  claim  on  the  part  of  the  mortgagee,  even  where  he  is  in 
possession  by  sufferance  only,  and  where  the  property  is  not 
sufficient  to  satisfy  the  mortgage  debt.^®  And  even  where  the 
mortgagor  is  in  possession  by  lawful  right,  if  the  property  is 
an  insufficient  security,  the  mortgagee  may  apply  for  the  ap- 
pointment of  a  receiver,  and  the  rents  and  profits  accruing 
thereafter  will  be  applied  to  the  liquidation  of  the  debt.^^ 
But  to  entitle  the  mortgagee  to  the  appointment  of  a  receiver, 
special  equitable  grounds  must  be  alleged;  for  example,  that 
the  mortgagor  is  insolvent,  and  the  security  insufficient.  If 
the  mortgagor  is  insolvent,  or  the  mortgagee  possesses  other 
means  of  protecting  himself,  the  insufficiency  of  the  mort- 
gage security  will  not  support  an  application  for  a  receiver.^* 

le  Boston  Bk.  v.  Eeed,  8  Pick.  459;  Mayo  v.  Fletcher,  14  Pick.  525; 
Kunkle  v.  Wolfersberger,  6  Watts  131;  Noyes  t-.  Rich,  52  Me.  115;  Oil- 
man V.  111.  &  Miss.  Tel.  Co.,  91  U.  S.  603;  Johnson  v.  Miller,  1  Wills 
416;  Gelston  r.  Burr,  11  Johns.  482;  Astor  V.  Turner,  11  Paige  436; 
Mitchell  V.  Bartlett,  52  Barb.  319;  Childs  V.  Hurd,  32  W.  Va.  66.  It 
is  held  in  Massachusetts,  that  if  the  mortgaged  property  is  not  suffi- 
cient in  value  to  satisfy  the  debt,  after  entry  to  foreclose,  the  mortgagee 
may  recover  of  the  mortgagor  for  past  use  and  occupation.  Merrill  v. 
Bullock,  105  Mass.  486;  Morse  r.  Merritt,  110  Mass.  458.  A  trustee 
who  gets  possession  before  foreclosure,  must  account  for  rents  received. 
Benton  Land  Co.  r.  Zeitler,  J82  Mo.  251,  81  S.  W.  Rep.  193. 

17  Post  r.  Door,  4  Edw.  Ch.  412;  Lofsky  v.  Maujer,  3  Sandf.  Ch.  69; 
Astor  V.  Turner,  11  Paige  436;  Clason  V.  Corley,  5  Sandf.  Ch.  447; 
Mitchell  r.  Bartlett,  51  N.  Y.  442;  Myers  v.  Estell,  48  Miss.  372;  Doug- 
lass V.  Cline,  12  Bush  608;  Child  V.  Hurd,  32  W.  Va.  66. 

18  Bk.  of  Ogdensburg  v.  Arnold,  5  Paige  40;  Williams  V.  Robinson, 
16  Conn.  517;  Shotwell  V.  Smith,  3  Edw.  Ch.  588;  Quincy  r.  Cheese- 
man,  4  Sandf.  Ch.  405;  Cortteyen  V.  Hathaway,  11  N.  J.  Eq.  39; 
TIackett  r.  Snow,  10  Ired.  220;  Oliver  V.  Decatur,  4  Cranch  C.  Ct.  458; 
Frisbie  v.  Bateman,  24  N.  J.  Eq.  28;  Williamson  V.  New  Albaby  R.  Co., 
1  Biss.  201 ;  Whitehead  t:  Wooten,  43  Miss.  523 ;  Pullan  v.  C.  &  C.  R. 
R.,  4  Biss.  35;  First  Nat.  Bk.  V.  Gage,  79  111.  206;  Morrison  v.  Buck- 
ner,  1  Hempst.  442;  Syracuse  Bk.  v.  Tallman,  31  Barb.  201.  After  a 
refusal  of  a  receiver,  the  holder  of  the  property  is  entitled  to  the  rents, 
until  an  actual  foreclosure.  Georgetown  Water  Co.  v.  Fidelity  Trust 
Co.  (Ky.  1904),  78  S.  W.  Rep.  113.  In  the  absence  of  a  pledge  thereof, 
a  mortgagee  has  no  lien  on  the  rents,  in  Illinois.     West  v.  Adams,  106 

338 


CH.   XI.]         RIGHTS  OF   MORTGAGOR  AND   MORTGAGEE.  §    245 

The  mortgagee  is  entitled  to  a  judgment  for  rents  and  profits 
from  the  date  of  the  decree  of  foreclosure,  or,  if  he  has  a 
right  to  possession  before  foreclosure,  from  his  demand  for 
possession,  when  he  follows  up  such  demand  either  by  fore- 
closure or  an  action  of  ejectment.^'  If  the  mortgagee  is  in 
possession  he  is  entitled  to  the  rents  and  profits  accruing 
after  his  entry.  And  where  the  land  has  been  leased  by  the 
mortgagor,  the  entry  of  the  mortgagee  vests  in  him  the  right 
to  call  upon  the  lessee  to  pay  the  rent  to  him.*"  If,  however, 
the  lease  be  subject  to  the  mortgage,  i.  e.,  executed  subse- 
quently, since  there  is  no  privity  of  estate  between  the 
mortgagee  and  the  lessee,  either  party  may  consider  the  lease 
defeated  by  the  entry,  and  no  rent  will  become  due  thereon, 
if  either  party  should  so  elect.  And  any  agreement  between 
the  parties  looking  to  a  continuance  of  the  lease,  is  in  fact  a 

111.  App.  114.  But  where  a  pledge  thereof  is  made,  in  the  mortgage, 
the  mortgagee  is  entitled  to  a  receiver,  regardless  of  the  solvency  of 
the  mortgagor.     West  v.  Adams,  supra. 

"Wilder  f.  Houghton,  1  Pick.  87;  Mayo  v.  Fletcher,  14  Pick.  525; 
Haven  v.  Adams,  8  Allen  308 ;  Northampton  Mills  v.  Ames,  8  Mete.  1 ; 
Hill  V.  Jordan,  30  Me.  367;  Bk.  of  Washington  v.  Hupp,  10  Gratt.  23; 
Forlouf  V.  Bowlin,  29  111.  App.  471;  Jones  on  Mort.  670.  This  rule 
naturally  can  apply  only  to  strict  foreclosure,  where  the  mortgagee  is 
not  entitled  to  possession  after  default.  And  where  in  strict  fore- 
closure a  certain  time  is  given  after  the  decree,  within  which  the  land 
might  still  be  redeemed,  the  judgment  for  rents  and  profits  can  only 
be  had  after  this  period  of  redemption.  And  where  the  property  is 
sold  under  foreclosure,  the  rents  and  profits  do  not  accrue  to  the  pur- 
chaser until  the  delivery  of  the  deed  to  him,  and  perhaps  not  until  he 
has  made  a  demand  for  possession  under  his  deed.  Clason  V.  Corley,  5 
Sandf.  Ch.  447;  Mitchell  v.  Bartlett,  52  Barb.  319;  Aster  v.  Turner,  11 
Paige  436. 

20  West  V.  Adams,  106  111.  App.  114;  Sage  v.  Mendelson,  85  N. 
Y.  S.  1008;  DeBona  r.  Frost  (Tex.  1903),  77  S.  W.  Rep.  637; 
Smith  T.  Shepherd,  15  Pick.  147;  Stone  v.  Patterson,  19  Pick.  476; 
Russell  r.  Allen.  2  Allen  42;  Welch  v.  Adams,  1  Mete.  494;  Hill  r, 
Jordan,  30  Me.  367;  Northampton  Mills  v.  Ames,  8  Mete.  1;  Turner  v. 
Cameron,  5  Exch.  932;  Pope  V.  Biggs,  9  B.  &  C.  245;  Bk.  of  Washing- 
ton f.  Hupp,  10  Gratt.  23, 

339 


§    245  BIGHTS   OP   MORTGAGOR   AND    MORTGAGEE.         [PART    I, 

new  lease."  But  where  the  lease  takes  precedence  to  the 
mortgage,  the  entry  of  the  mortgagee  will  not  defeat  the 
lease  in  any  event.  The  mortgagee  may,  however,  compel  the 
lessee  to  pay  to  him  all  rent  accruing  after  entry,  which  has 
not  been  paid  over  to  the  mortgagor  before  the  lessee  received 
notice  of  the  execution  of  the  mortgage.  But  payment  to  the 
mortgagor  before  such  notice,  even  of  rent  in  advance  which 
falls  due  afterwards,  if  bona  fide,  will  constitute  a  good  de- 
fense to  any  action  by  the  mortgagee.^^ 

"Russell  V.  Allen,  2  Allen  44;  Smith  v.  Shepherd,  15  Pick.  147; 
Mayo  V.  Fletcher,  14  Pick.  525;  Watts  v.  Coffin,  11  Johns.  495;  Jones 
r.  Clark,  20  Johns.  51;  Jackson  v.  Delancey,  11  Johns.  365;  Kimball  v. 
Lockwood,  6  R.  I.  138;  Syracuse  City  Bk.  v.  Tallman,  31  Barb.  207; 
Magill  V.  Hinsdale,  6  Conn.  464;  McKircher  v.  Hawley,  16  Johns,  289; 
Hemphill  v.  Giles,  66  N.  C.  512;  Pope  v.  Biggs,  9  B.  &  C.  245;  Doe  V. 
Hales,  7  Bing.  322;  Knox  v.  Easton,  38  Ala.  345;  Lane  V.  King,  8 
Wend.  584;  Lynde  v.  Rowe,  12  Allen  110;  Gartside  v.  Outley,  58  111. 
210;  11  Am.  Rep.  59;  Weaver  v.  Belcher,  3  East  449;  Rogers  v.  Hum- 
phreys, 4  A.  &  E.  299;  Higginbotham  v.  Barton,  11  Ad.  &  El.  307; 
Henshaw  v.  Wells,  8  Humph.  568;  Morse  v.  Goddard,  13  Mete.  177; 
Field  V.  Swan,  10  Mete.  177.  See  Hogsett  v.  Ellis,  17  Mich.  351:  The 
lessees  in  a  subsequent  lease  must  attorn  in  order  to  be  liable  to  the 
mortgagee.  A  mere  notice  to  pay  rent  will  not  render  them  liable. 
But  judgment  for  mesne  profits  may  be  had  if  they  continue  in  pos- 
session after  demand.  Kimball  v.  Lockwood,  6  R.  I.  138;  Hill  v.  Jor- 
dan, 35  Me.  367 ;  Northampton  Mills  V.  Ames,  8  Mete.  1 ;  Morse  v. 
Goddard,  supra;  Field  V.  Swan,  supra;  Rogers  v.  Humphreys,  supra; 
Evans  V.  Elliott,  9  A.  &  E.  342.  But  without  special  agreement  the 
acceptance  of  rent  from,  the  lessee  will  not  bind  the  mortgagee  to  the 
terms  and  duration  of  the  original  lease.  It  creates  only  a  tenancy 
from  year  to  year,     Hughes  v.  Bucknell,  8  C.  &  P.  566. 

22  Rogers  v.  Humphreys,  4  Ad.  &  E.  299 ;  Moss  v.  Gallimore,  Dougl. 
279;  Mirick  v.  Hoppin,  118  Mass.  582;  McKircher  v.  Hawley,  16  Johns. 
289;  Russell  v.  Allen,  2  Allen  42;  Demarest  v.  Willard,  8  Cow.  206; 
Kimball  v.  Lockwood,  6  R.  I.  138;  Henshaw  v.  Wells,  9  Humph.  568; 
Myers  v.  White,  1  Rawle  353;  Hemphill  v.  Giles,  66  N.  C.  512.  See 
De  NichoUs  v.  Saunders,  L.  R.  5  C.  P.  589;  Castleman  v.  Belt,  2  B. 
Mon.  157.  And  although  the  lease  is  void,  this  is  no  defense  to  an  ap- 
plication by  the  mortgagee  for  a  receiver  for  the  rents  accruing  there- 
under.   De  Berrero  v.  Frost  (Tex.  1903),  77  S.  W.  Rep.  637. 

340 


CH.   XI.]         RIGHTS  OF  MORTGAGOR  AND   MORTGAGEE.  §   246 

§  246.  Mortgagee's  liability  for  rents  received. —  The  mort- 
gagee receives  the  rents  and  profits,  not  in  his  own  right,  but 
as  trustee  or  agent  for  himself  and  the  mortgagor.  After  de- 
ducting the  necessary  expenses  of  managing  the  estate,  he 
must  apply  them,  first,  to  the  liquidation  of  the  accruing  in- 
terest, and  then  of  the  principal  of  the  debt.  Whatever  sur- 
plus remains  he  holds  in  trust  for  the  mortgagor,  and  all 
others  claiming  under  him.^^  The  mortgagee  in  possession 
cannot  apply  such  surplus  to  the  liquidation  of  any  other 
debts  due  to  him  from  the  mortgagor,  except  with  the  lat- 
ter's  consent.^*  JBut  where  the  mortgagor  consents,  a  judg- 
ment creditor  cannot  interpose  his  objection.^^  If  the  mort- 
gagee in  possession  holds  under  a  second  mortgage,  it  has 

23  Bailey  r.  Myrick.  52  Me.  136;  King  v.  Ins.  Co.,  7  Cush.  7;  Ten 
Eyck  V.  Craig,  62  N.  C.  406;  Clark  t'.  Bush,  3  Cow.  151;  Harrison  V. 
Wyse,  24  Conn.  1 ;  Seaver  v.  Durant,  39  Vt.  105 ;  Hunt  V.  Maynard,  6 
Pick.  489;  Thorp,  v.  Feltz,  6  B.  Mon.  6;  Breckenridge  v.  Brook,  2  A. 
K.  Marsh.  335 ;  Gibson  v.  Crehore,  5  Pick.  146 ;  Hill  v.  Hewitt,  35  Iowa 
563;  Freytag  v.  Hoeland,  23  N.  J.  Eq.  36;  Anderson  v.  Lanterman,  27 
Ohio  St.  104;  Strang  v.  Allen,  44  111.  428;  Gilnian  v.  Wills.  66  Me.  273; 
Roulhac  V.  Jones,  78  Ala.  3^8;  Murdock  f.  Clarke  (Cal.),  24  Pac.  Rep. 
272;  Caldwell  r.  Hall,  49  Ark.  508.  But  the  mortgagee  is  only  ac- 
countable for  the  rents  and  profits  in  equity,  and  then  only  as  an  inci- 
dent to  an  action  for  foreclosure,  or  for  the  redemption  of  the  mort- 
gaged premises.  Farrall  r.  Lovel,  3  Atk.  723;  Gordon  v.  Hobart,  2 
Story  243;  Hubbell  V.  Moulson,  53  N.  Y.  225;  Boston  Iron  Co.  V.  King, 
2  Cush.  400;  Seaver  V.  Durant,  39  Vt.  103;  Weeks  V.  Thomas,  21  Me. 
465;  Givens  r.  McCalmott,  4  Watts  464;  Bell  t\  Mayor  N.  Y.,  10  Paige 
49.  And  where  the  rents  and  profits  collected  by  the  mortgagee  are 
more  than  sufficient  to  satisfy  the  mortgage  debt,  and  the  mortgagee  is 
irresponsible,  a  receiver  may  be  appointed,  pending  the  action  to  re- 
deem, to  take  charge  of  subsequently  accruing  rents.  Bolles  t'.  Duff, 
35  How.  Pr.  481;  Quinn  v.  Brithaige,  3  Edw.  314.  Until  applied 
by  judgment  of  the  court  to  th^  payment  of  the  debt,  there  is  no  legal 
satisfaction  of  the  mortgage  by  the  receipt  of  rents  and  profits  to  the 
full  amount  of  the  mortgage-debt.  Hubbell  v.  Moulson,  53  N.  H.  225, 
13  Am.  Rep.  519;  Benton  Land  Co.  v.  Zeitler,  182  Mo.  251,  81  S.  W. 
Rep.  193 ;  Davis  v.  Pollard   ( 1904 ) ,  99  Me.  345,  59  Atl.  Rep.  520. 

24  Caldwell  v.  Hall,  49  Ark.  508;  Demick  v.  Cuddily,  72  Cal.  110. 
But  see,  contra,  Borel  v.  Cappeler,  79  Cal.  342. 

25  Whitney  v.  Paynor,  74  Wis.  289. 

341 


§    246  RIGHTS   OP    MORTGAGOR   AND    MORTGAGEE.  [PART   I. 

been  held  that  he  must  apply  the  rents  first  to  the  liquidation 
of  the  first  mortgage  debt.^"  But  it  would  seem  that  the  first 
mortgagee  would  in  that  case  have  no  more  claim  to  the 
rents  than  he  would  when  the  mortgagor  is  in  possession. 
Although  the  mortgagee  does  not,  by  taking  possession  of 
the  land,  assume  the  responsibilities  of  a  guarantor  of  the 
rents,  in  the  collection  of  the  rent  he  is  under  an  obligation 
to  use  that  care,  which  might  be  expected  from  a  reasonably 
prudent  man.  And  if,  by  reason  of  his  negligence  in  re- 
spect thereto,  any  portion  of  the  rents  and  profits  was  lost, 
he  would  be  held  responsible  for  them  to  ^he  same  extent  as 
if  he  had  actually  received  them.  Where  he  enters  into  pos- 
session before  the  breach  of  the  condition,  a  much  greater  de- 
gree of  care  is  required  of  him  than  after  the  breach. ^^     And 

26  Crawford  v.  Mimford,  29  111.  App.  445. 

27  Hood  V.  Easton,  2  Giff.  692;  Robertson  v.  Campbell,  2  Call  421 
Hughes  V.  Williams,  12  Ves.  493;  Sparhawk  v.  Wills,  5  Gray  429 
Strong  V.  Blanchard,  4  Allen  538;  Richardson  v.  Wallis,  5  Allen  78 
Saunders  v.  Frost,  5  Pick.  259 ;  Bernard  v.  Jennison,  27  Mich.  230 
Shaeffer  v.  Chambers,  5  Halst.  548;  Milliken  v.  Bailey,  61  Me.  316 
Van  Buren  v.  Olmstead,  5  Paige  Ch.  9 ;  Walsh  V.  Rutgers  Ins.  Co.,  13 
Abb.  Pr.  33 ;  Barron  V.  Paulling,  38  Ala.  292 ;  Moore  V.  Titman,  44  111. 
367;  Bainbridge  v.  Owen,  2  J.  J.  Marsh.  463;  Harper  v.  Ely,  70  111. 
581;  George  v.  Wood,  11  Allen  42;  Hubbard  V.  Shaw,  12  Allen  122; 
Givens  v.  McCalmont,  4  Watts  460;  Guthrie  v.  Kahle,  46  Penn.  333; 
Gerrish  V.  Black,  104  Mass.  400;  Miller  v.  Lincoln,  6  Gray  556;  Bran- 
don V.  Brandon,  10  W.  R.  287 ;  Hagthrop  v.  Hook,  1  Gill  &  J.  270 ;  Rey- 
nolds r.  Canal  &  Bkg.  Co.,  .30  Ark.  520;  Murdock  v.  Clarke  (Cal.),  24 
Pac.  Rep.  272.  If  he  has  kept  no  account  of  the  rents  and  profits  re- 
ceived, the  mortgagee  will  be  charged  with  a  reasonable  rent,  i.  e., 
what  might  be  had  with  proper  diligence.  Dexter  v.  Arnold,  2  Sumn. 
108;  Gordon  v.  Lewis,  76.  150;  Van  Buren  v.  Olmstead,  5  Paige  9; 
Clark  V.  Smith,  1  N.  J.  Eq.  121;  Montgomery  v.  Chadwick,  7  Iowa  114. 
And  if  the  mortgagee  remains  in  possession  himself,  he  will  be  charged 
for  rent  to  the  full  value  of  the  land,  the  amount  being  determined  by 
expert  testimony.  Gordon  v.  Lewis,  supra;  Montgomery  v.  Chadwick, 
supra;  Kellogg  V.  Rockwell,  19  Conn.  446;  Moore  v.  Cable,  1  Johns.  Ch. 
385;  Chase  v.  Palmer,  25  Me.  341;  Trulock  v.  Robey,  15  Sim.  265; 
Van  Buren  v.  Olmstead,  supra;  Saunders  v.  Wilson,  34  Vt.  318;  Barrett 
r.  Nielson,  54  Iowa  41;  37  Am.  Rep.  183;  Clark  v.  Clark,  62  N.  H.  267. 
A  mortgagee  in  possession  is.  held  not  to  be  entitled  to  compensation 

342 


CH.    XI.]  RIGHTS   OF   MORTGAGOR   AND    MORTGAGEE.  §    247 

as  a  corollary  to  this  rule,  if  the  mortgagee  fails  to  obtain 
as  high  a  rent  as  he  might  have  secured  —  as  where  he  refuses 
to  let  to  the  tenant  offering  the  highest  rent — he  will  be 
liable  for  this  loss.  But  a  clear  case  of  negligence  or  willful 
disregard  of  the  mortgagor's  interest  must  be  established,  in 
order  to  hold  him  to  account  on  this  ground.  The  mere  fail- 
ure to  obtain  the  highest  rent  possible  is  not  a  sufficient 
ground  of  liability.^*  "Where  the  rents  and  profits  have  been 
increased  by  permanent  improvements  made  by  himself, 
whether  he  is  accountable  for  such  increase  to  the  mortgagor 
depends  upon  the  character  of  the  improvements.  If  they  be 
in  the  nature  of  accessions  to  the  land,  or,  in  other  words, 
fixtures,  the  erection  of  costly  buildings,  etc.,  he  need  not  ac- 
count for  the  increased  rents  and  profits,  unless  the  mortgagor 
has  indemnified  him  for  the  cost  of  their  erection,  or  he  has 
been  so  paid  by  the  use  of  them.  But  where  the  improve- 
ment is  the  result  of  his  labor  upon  the  land,  or  where  wild 
lands  have  been  cleared,  he  must  make  returns  of  such  im- 
proved rents.  ^* 

§  247.  Tenure  between  mortgagor  and  mortgagee  —  Ad- 
verse possession. —  Whether  the  actual  possession  is  held  by 

for  care  of  the  property,  in  Moss  v.  Odell,  141  Cal.  335,  74  Pac.  Hep. 
999;  Turner  v.  Johnson,  95  Mo.  431,  7  S.  W.  Rep.  570;  Snow  v.  War- 
wick Inst.,  17  R.  I.  66,  20  Atl.  Rep.  94.  But  see,  Bumen  t;.  Bank,  148 
Mass.  300,  19  N.  E.  Rep.  382. 

28  Hughes  V.  Williams,  12  Ves.  493;  Hubbard  V.  Shaw,  12  Allen  123; 
Rowe  V.  Wood,  2  J.  &  W.  553;  Anon.,  1  Vern.  45;  Jones  on  Mort.,  Sec. 
1123;  Brown  v.  South  Boston  Sav.  Bank,  148  Mass.  300.  A  mortgagee 
in  possession  is  only  liable  for  rents  actually  received  and  not  for  a 
reduction  in  the  rent  in  order  to  hold  the  tenants.  Chapman  V.  Cooney, 
25  R.  I.  657,  57  Atl.  Rep.  928.  Mortgagee  cannot  charge  for  collecting 
rents.  Bernard  v.  Patterson,  100  N.  W.  Rep.  893.  Willful  neglect 
must  be  shown  to  charge  a  mortgagee  with  more  rent  than  was  actually 
received.  Pollard  v.  American  Land  Mtg.  Co.  (Ala.  1903),  35  So.  Rep. 
767. 

29  Moore  v.  Cable,  1  Johns.  Ch.  385 ;  Bell  v.  Mayor  of  N.  Y.,  10  Paige 
Ch.  49;  Morrison  V.  McLeod,  2  Ired.  108;  Givens  v.  McCalmont,  4  Watts 
460.  See  2  Washburn  on  Real  Prop.  224,  225;  but  see  Merriam  v. 
Barton,  14  Vt.  501;  Stoney  v.  Shultz,  1  Hill  464. 

343 


§    247  RIGHTS   OF   MORTGAGOR   AND   MORTGAGEE.  [PART   I. 

the  mortgagor  or  mortgagee,  there  is  such  a  tenure  existing 
between  them  that,  for  the  purpose  of  protecting  each  other's 
title  and  seisin,  the  possession  of  one  is  deemed  the  possession 
of  the  other.  If  the  one  in  possession  is  disseised,  it  will 
work  the  disseisin  of  the  other;  and  where  one  is  seised,  a 
third  person  cannot  set  up  a  title  by  adverse  possession 
against  the  other.^"  The  mortgagee  is  estopped  by  his  deed 
from  denying  the  title  of  the  mortgagor,  and  if  he  procures 
releases  from  persons  claiming  a  superior  title  to  the  mort- 
gaged premises,  such  deeds  inure  to  the  benefit  of  the  mort- 
gagor upon  his  payment  of  the  expenses  incurred  in  purchas- 
ing the  superior  title.^^  So  also,  will  the  mortgagor  not  be 
permitted  to  set  up  against  the  mortgagee  a  paramount  title 
which  he  has  acquired  subsequently  to  the  execution  of  the 
mortgage.*'^  But  it  seems  that  a  junior  incumbrancer,  a  judg- 
ment creditor,  for  example,  is  not  subject  to  any  such  estop- 
pel as  against  the  mortgagor  or  prior  mortgagee.  If  he  pur- 
chases a  paramount  title,  he  can  enforce  it  against  either  or 
both.^''     Before  condition  broken,  neither  the  mortgagor  nor 

30  Birch  v.  Wright,  1  T.  R.  383;  Cholmondeley  V.  Clinton,  2  Meriv. 
360;  Poignard  v.  Smith,  8  Pick.  272;  Dadmun  v.  Lamson,  9  Allen  85; 
Lincoln  v.  Emerson,  108  Mass.  87;  Doe  v.  Barton,  11  A.  &  E.  307; 
Partridge  f.  Bere,  5  B.  &  Aid.  604 ;  Hunt  v.  Hunt,  14  Pick.  374 ;  New- 
man V.  Chapman,  2  Rand.  93;  Boyd  v.  Beck,  29  Ala.  703;  Sheridan  v. 
Welch,  8  Allen  166;  Currier  v.  Gale,  9  Allen  522;  Woods  v.  Hilde- 
brand,  46  Mo.  284,  2  Am.  Rep.  513. 

31  Brown  v.  Combs,  5  Dutch.  36;  Doe  v.  Tunnel,  1  Houst.  320;  Farm- 
ers' Bank  v.  Bronson,  14  Mich.  369;  Connor  v.  Whitmore,  52  Me.  185; 
contra,  Wright  V.  Sperry,  25  Wis.  617;  Walthall  v.  Rives,  34  Ala.  91; 
Hall  V.  Westcott,  15  R.  I.  373;  Drew  v.  Morrill,  62  N.  H.  565;  Rogor 
V.  Lomax,  22  111.  App.  628. 

32TeflFt  V.  Munson,  57  N.  Y.  97;  Lincoln  v.  Emerson,  108  Mass.  87; 
Conner  v.  Whitmore,  52  Me.  185;  Miami  Ex.  Co.  V.  U.  S.  Bank,  Wright 
249;  Fair  r.  Brown,  40  Iowa  209;  Stears  v.  Hollenbeck.  38  Iowa  550; 
Ryan  v.  McGehee,  103  N.  C.  282;  Cook  v.  Rounds,  60  Mich.  310.  But 
if  the  mortgagee  is  under  obligation  to  pay  the  taxes,  the  mortgagor 
may  demand  of  him  satisfaction  for  the  expenses  of  the  tax-title  pur- 
chased by  him.     Eaton  f.  Tallmadge,  22  Wis.  526. 

33  Wilson  V.  Gadient,  36  Minn.  59.  An  outstanding  title  acquired  by 
one  of  several  bondholders,  inures  to  the  benefit  of  all,  on  payment  of 

344 


CH.    XI.]  RIGHTS   OF    MORTGAGOR   AND    MORTGAGEE.  §    247 

the  mortgagee  can  disseise  the  other  by  any  denial  of  title; 
but  after  the  breach  of  the  condition,  the  party  in  possession 
may  acquire,  by  acts  of  hostility,  such  an  adverse  possession 
as  will  bar  the  other's  title  under  the  Statute  of  Limitations. 
The  statute  begins  to  run  from  the  time  of  forfeiture ;  it  can- 
not before.  After  the  lapse  of  the  statutory  period  of  limi- 
tation the  mortgagor  loses  his  equity  of  redemption,  and  the 
mortgagee  his  right  to  foreclose;  and  whoever  is  in  possession 
acquires  an  absolute  title  to  the  land.  The  respective  as- 
signees are  governed  by  the  same  rules."**     But  any  act  by 

their  pro  rata  part  of  the  expense.  Booher  v.  Crocker,  132  Fed.  Rep. 
7,  65  Cir.  Ct.  App.  627. 

34  Hunt  17.  Hunt,  14  Pick.  374;  Sheppard  V.  Pratt,  15  Pick.  32;  Rob- 
erts V.  Welch,  8  Ired.  287;  Evans  v.  Huffman,  5  N.  J.  L.  354;  Wilkin- 
son V.  Flowers,  37  Miss.  579;  Chick  v.  Rollins,  41  Me.  104;  Tripe  f. 
Marcy,  39  N.  H.  439;  Crawford  v.  Taylor,  42  Iowa  2G0;  Roberts  v. 
Littlefield,  48  Me.  61;  Haskell  v.  Bailey,  22  Conn.  509;  Chick  v.  Rollins, 
44  Me.  104;  Rockwell  r.  Servant,  63  111.  424;  Giles  v.  Baremore,  5 
Johns.  Ch.  545;  Bacon  v.  Mclntire,  8  Mete.  87;  Harris  v.  Mills,  28  111. 
46;  Hughes  v.  Edwards,  9  Wheat,  489;  Nevitt  V.  Bacon,  32  Miss.  212; 
Green  v.  Turner,  38  Iowa  112;  Moore  v.  Cable,  1  Johns.  Ch.  385;  Ilodg- 
don  V.  Heidman,  66  Iowa  645;  Rodriguez  v.  Hayes,  76  Texas  225;  W'il- 
son  V.  Albert,  89  Mo.  537;  Seawright  v.  Parmer  (Ala.),  7  So.  Rep.  201; 
Holmes  v.  Turner's  Falls,  etc.,  Co.,  150  Mass.  535,  23  N.  E.  Rep.  305; 
Leonard  v.  Binford,  122  Ind.  200,  23  N.  E.  Rep.  704;  Orr  v.  Rode  (Mo.), 
12  S.  W.  Rep.  1066.  Where  the  mortgagee  enters  into  possession  before 
condition  broken,  notice  must  be  given  to  the  mortgagor  that  he  holds 
possession  for  the  purpose  of  foreclosure,  before  the  statute  will  run 
against  the  mortgagor's  right  to  redeem.  But  see,  Halbrook  v.  Green, 
98  Me.  171,  56  Atl,  Rep.  659;  Newall  V.  Wright,  3  Mass.  138;  Good- 
win V.  Richardson,  11  Mass.  469;  Scott  v.  McFarland,  13  Mass.  308. 
See  Yarborough  v.  Newell,  10  Yerg.  376;  Green  v.  Turner,  38  Iowa  112; 
Hammonds  v.  Hopkins,  3  Yerg.  525.  And  where,  by  agreement  of  the 
parties,  the  mortgagee  is  to  hold  possession,  until  the  mortgage-debt 
was  paid  out  of  the  rents  and  profits,  the  staute  does  not  begin  to  run, 
until  his  claim  has  been  satisfied  and  he  has  given  the  mortgagor 
notice  of  his  adverse  holding.  Anding  v.  Davis,  38  Miss.  574 ;  Kohlheim 
r.  Harrison,  34  Miss.  457;  Frink  v.  Le  Koy,  49  Cal.  314.  And  no 
length  of  possession  will  bar  the  right  to  redeem,  if  by  agreement  the 
mortgagor  has  an  unlimited  time,  within  which  to  pay  off  the  mort- 
gage. Wyman  v.  Babcock,  2  Curtis  386;  Teulon  v.  Curtis,  1  Younge 
GIG.     The  possession  of  either  party  must  be  exclusive  as  well  as  ad- 

345 


§   248  RIGHTS   OP   MORTGAGOR   AND   MORTGAGEE.  [PART   I. 

the  party  in  possession,  which  involves  the  recognition  ol 
the  other's  title,  or  is  an  acknowledgment  that  the  mortgage- 
debt  still  exists,  will  rebut  the  presumption  of  adverse  pos- 
session. Where  the  mortgagor  is  in  possession,  payment  of 
the  interest  or  a  part  of  the  principal  of  the  mortgage-debt, 
and  in  the  case  of  the  mortgagee's  possession,  the  acceptance 
of  such  payment,  or  rendering  an  account  for  the  rents  and 
profits,  would  be  circumstances  and  facts  which  would  nega- 
tive the  hostility  of  the  possession,  and  prevent  the  statute 
from  running  against  the  one  out  of  possession.^* 

§  248.  Insurance  of  the  mortgaged  premises. —  Both  the 
mortgagor  and  the  mortgagee  have  insurable  interests  in  the 
premises,  and  they  may  insure  their  respective  interests  at 
the  same  time.  The  mortgagee  can  only  insure  to  the  amount 
of  his  debt.  Where  he  takes  out  a  policy  in  his  own  name 
and  pays  the  premium,  and  he  cannot,  by  the  terms  of  the 
mortgage,  call  upon  the  mortgagor  to  refund  such  payments, 
he  takes  the  insurance  money,  in  case  of  loss  by  fire,  free 

verse,  in  order  that  the  statute  may  run.  Burke  v.  Lynch,  2  Ba.  &  Be. 
426;  Archbold  v.  Scully,  9  II.  L.  Cas.  3G0;  Drumniond  v.  Sant,  L.  R. 
6  Q.  B.  763.     But  see,  Lake  V.  Thomas,  3  Ves.  Jr.  17. 

35  To  bar  foreclosure,  see  Heyer  v.  Pruyn,  7  Paige  465;  Hughes  r. 
Edwards,  9  Wheat.  490;  Cheaver  v.  Perley,  11  Allen  584;  Tripe  r. 
Marcy,  39  N.  H.  439;  Zeller  v.  Eckert,  4  How.  295;  Wright  v.  Eaves, 
10  Rich.  Eq.  582;  Drayton  v.  Marshall,  Rice's  Eq.  383;  Howland  r. 
Shurlteflf,  2  Mete.  26;  Ayres  v.  Waite,  10  Cush.  72;  Carberry  v.  Pres- 
ton, 13  Ired.  Eq.  455;  Hough  v.  Bailey,  32  Conn.  288;  Ward  v.  Carter, 
L.  R.  1  Eq.  29;  Hughes  v.  Blackwell,  6  Jones  Eq.  73;  Jackson  v.  Slater, 
5  Wend.  295;  Brocklehurst  v.  Jessop,  7  Sim.  438.  And  see  Cunningham 
V.  Hawkins,  24  Cal.  409 ;  Harris  V.  Mills,  28  111.  44 ;  Perkins  V.  Sterne, 
23  Texas  563;  Benton  Co.  v.  Czarlinsky  (Mo.),  14  S.  W.  Rep.  114.  To 
bar  the  equity  of  redemption,  see  Demarest  v.  Wynkoop,  3  Johns.  Ch. 
129;  Limerick  v.  Voorhis,  9  Johns.  129;  Pendleton  v.  Rooth,  1  Giff.  35; 
Stansfield  V.  Hobson,  16  Beav.  236;  Edsell  V.  Buchanan,  2  Ves.  Jr.  83; 
Barron  v.  Martin,  19  Ves.  327;  Hansard  v.  Hardy,  18  Ves.  455;  Rich- 
ardson V.  Young,  L.  R.  10  Eq.  297;  Marks  f.  Pell,  1  Johns.  Ch.  594; 
Dexter  v.  Arnold,  3  Sumn.  151;  Quint  f.  Little,  4  Greenl.  495;  Shep- 
perd  V.  Murdock,  3  Murph.  218;  Roberts  v.  Littlefield,  48  Me.  61; 
Knowlton  v.  Walker,  13  Wis.  264;  Jackson  v.  Lynch,  129  111.  72. 
346 


CH.    XI.]  RIGHTS   OF    MORTGAGOR   AND   MORTGAGEE,  §    248 

from  any  right  of  the  mortgagor  to  have  it  applied  to  the 
liquidation  of  the  mortgage-debt.  He  can  recover  the  in- 
surance, and  then  procede  to  collect  the  debt.'*  But  if  he  in- 
sures the  premises  at  the  request  of  the  mortgagor,  or  does 
so  in  consequence  of  the  neglect  of  the  mortgagor,  and  at 
his  expense,  as  he  may  do  if  the  mortgage  contains  a  covenant 
providing  for  the  insurance  of  the  premises  by  the  mortgagor, 
the  mortgagor  will  be  subrogated  to  the  benefit  of  the  insu- 
rance, and  the  insurance  money  must  be  applied  to  the 
debt.'^     Under  such  circumstances,  the  mortgagee  would  have 

38  King  V.  State  Ins.  Co.,  7  Cush.  1;  Sussex  Mut.  Ins.  Co.  v.  Wood- 
niflF,  2  Dutch.  541;  Excelsior  Ins.  Co.  V.  Ins.  Co.,  5.5  N.  Y.  343,  14  Am. 
Rep.  271;  Carpenter  v.  Ins.  Co.,  16  Pet.  495;  Russell  v.  Southard,  12 
How.  139;  ^tna  Ins.  Co.  v.  Tyler,  16  Wend.  385;  Springfield  Fire  Ins. 
Co.  V.  Allen,  43  N.  Y.  389,  3  Am.  Rep.  711;  White  v.  Brown,  2  Cush. 
412;  Harding  V.  Townsend,  43  Vt.  536;  Dobson  V.  Land,  8  Hare  216; 
Fowler  v.  Palmer,  5  Gray  549;  Clark  v.  Wilson,  103  Mass.  219;  Wil- 
liams V.  Ins.  Co.,  107  Mass.  377,  9  Am.  Rep.  41;  Bellamy  V.  Bricken- 
den,  2  Johns.  &  H.  137;  Ely  v.  Ely,  80  111.  532;  Cushing  V.  Thompson, 
34  Me.  496;.  Bean  v.  A.  &  St.  L.  R.  R.,  58  Me.  82;  King  v.  Mut.  Ins. 
Co.,  7  Cush.  1;  Brant  f.  Gallup,  111  111.  487.  See  also,  McDowell  f. 
Moroth,  64  Mo.  App.  290;  Dunbrock  v.  Neall  (W.  Va.  1904),  47  S.  E. 
Rep.  303. 

87  Concord,  etc.,  Ins.  Co.,  v.  Woodbury,  45  Me.  447 ;  Graves  v.  Hamp- 
den Ins.  Co.,  10  Allen  285;  Callahan  v.  Linthicum,  43  Md.  97,  20  Am. 
Rep.  106;  Gordon  v.  Ware  Sav.  Co.,  115  Mass.  588;  King  v.  Mut.  Ins. 
Co.,  7  Cush.  1;  Clark  V.  Wilson,  103  Mass.  221;  Larrabell  V.  Lumbert, 
32  Me.  97;  Suffolk  Ins.  Co.  V.  Boyden,  9  Allen  123;  Waring  V.  Loder, 
53- N.  Y.  581;  Norwich  Ins.  Co.  V.  Boomer,  52  111.  442,  4  Am.  Rep.  618; 
Fowler  v.  Palmer,  5  Gray  549;  Martin  V.  Franklin  Fire  Ins.  Co.,  38  N. 
J.  L.  140,  20  Am.  Rep.  372;  Nichols  v.  Baxter,  5  R.  I.  491,  And  when 
the  mortgage  contains  an  insurance  clause,  and  an  insurance  policy  is 
taken  out  by  the  mortgagee  upon  the  default  of  the  mortgagor  to  do 
so,  the  policy  is  presumed  to  be  taken  out  for  the  benefit  of  both  par- 
ties, and  the  mortgagee  cannot  refuse  to  apply  it  to  the  debt.  Foster 
V.  VanRced,  5  Hun  321;  Buffalo  Steam  Engine  Works  v.  Ins,  Co.,  17 
N.  Y.  406;  Blinton  i\  Hope  Ins.  Co.,  45  N,  Y.  454;  Waring  v.  Loder, 
53  N,  Y.  581;  Honore  V.  Lamar  Ins.  Co.,  51  111.  409.  And  in  such 
cases,  the  fact  that  the  debt  has  been  paid  will  not  prevent  a  recovery 
of  the  insurance  money.  The  mortgagor's  interest  in  the  policy  keeps 
it  alive.  Norwich  Ins.  Co.  v.  Boomer,  supra ;  Concord  Ins.  Co.  v.  Wood- 
bury, aupraj  Waring  v.  Loder,  supra.     Where  the  requirement  of  the 

347 


§    248  RIGHTS   OF    MORTGAGOR    AND    MORTGAGEE.  [PART  I. 

a  claim  against  the  mortgagor  and  against  the  mortgaged 
property  for  re-imbursement  of  the  premiums  paid  by  him.'" 
But,  although  the  mortgagee  is  entitled,  as  against  the  mort- 
gagor, to  the  full  benefit  of  the  insurance,  where  there  is  no 
covenant  of  insurance,  it  is  not  so  certain  that  he  will,  as 
against  the  insurance  company,  be  permitted  to  recover  to  his 
own  use  both  the  debt  and  the  insurance  money.  Some  of 
the  courts  hold  that  the  insurance  company  will  be  subrogated 
to  the  rights  of  the  mortgagee  under  the  mortgage  in  the  pro- 
portion that  the  insurance  paid  bears  to  the  mortgage-debt;  '* 
while  the  courts  of 'Massachusetts  sustain  the  doctrine  that  he 
may  recover  both  the  insurance  and  the  debt,  discharged  of 
any  right  of  subrogation  in  the  insurance  company,  on  the 
ground  that  the  premiums  paid  on  the  policy  are  a  good 
and  adequate  consideration  for  the  risk  assumed,  and  pre- 
vent any  claim  on  the  part  of  the  company  to  the  equitable 
right  of  subrogation.*"     The  mortgagor  may  insure   to  the 

nicrtgage  is  that  a  policy  of  insurance  shall  be  procured  by  the  mortga- 
gor, for  the  benefit  of  the  mortgagee  —  as  is  generally  the  case  —  the 
mortgagee  is  entitled  to  the  insurance,  in  case  of  loss,  though  the  policy 
is  payable  to  the  mortgagor  alone.  Hyde  v.  Hartford  Ins.  Co.  (Neb. 
1903),  97  N.  W.  Rep.  629;  Eastern  Milling  Co.  V.  Eastern  Export  Co. 
(Pa.  1903),  125  Fed.  Rep.  143. 

38  McLean  v.  Burr,  16  Mo.  App.  240. 

3»  Concord  Ins.  Co.  v.  Woodbury,  45  Me.  447 ;  .^tna  Ins.  Co.  v.  Tyler, 
16  Wend.  397;  Sussex  Ins.  Co.  v.  Woodruff,  2  Dutch.  541;  Ulster  Co. 
Sav.  Inst.  V.  Leake,  73  N.  Y.  161,  29  Am.  Rep.  115;  Excelsior  Ins.-  Co. 
V.  Ins.  Co.,  55  N.  Y.  343,  14  Am.  Rep.  271;  Honore  v.  Lamar  Ins.  Co., 
51  111.  409;  Norwich  Ins.  Co.  v.  Boomer,  52  111.  442,  4  Am.  Rep.  618; 
Callahan  v.  Linthicum,  43  Md.  97,  20  Am.  Rep.  106. 

40  King  V.  Ins.  Co.,  7  Cush.  1;  Suffolk  Ins.  Co.  r.  Boyden,  9  Allen 
123;  Clark  v.  Wilson,  103  Mass.  221;  Foster  r.  Equitable  Ins.  Co.,  5. 
Gray  216;  Dobson  v.  Land,  8  Hare  216.  In  King  v.  Ins.  Co.,  supra. 
Chief  Justice  Shaw  said:  "  irt  (the  mortgagee)  surely  may  recover  of 
the  mortgagor,  because  he  is  his  debtor,  and  on  good  consideration  has 
contracted  to  pay.  The  money  received  from  the  underwriters  was  not 
a  payment  of  his  debt ;  there  was  no  privity  of  contract  between  the 
mortgagor  and  the  underwriters;  he  had  not  contracted  with  them  to 
pay  it  for  him,  on  any  contingency;  he  had  paid  them  nothing  for  so 
doing.  They  did  not  pay  because  the  mortgagor  owed  it;  but  because 
348 


CH.    XI.]  RIGHTS   OP   MORTGAGOR   AND    MORTGAdLE.  §    248 

full  value  of  the  premises,  irrespective  of  the  mortgagee's  in- 
terest. A  mortgage  is  not  such  an  alienation  as  will  defeat 
the  policy  of  insurance  —  not  even  so  far  as  to  reduce  the 
mortgagor's  insurable  interest  to  the  equity  of  redemption.*^ 

they  had  bound  themselves,  in  the  event  which  has  happened,  to  pay  a 
certain  sum  to  the  mortgagee."  ..."  What,  then,  is  there  inequi- 
table, on  the  part  of  the  mortgagee,  towards  either  party  in  holding 
both  sums?  They  are  both  due  upon  valid  contracts  with  him,  made 
upon  adequate  considerations  paid  by  himself.  There  is  nothing  in- 
equitable to  the  debtor,  for  he  pays  no  more  than  he  originally  secured 
in  money  loaned ;  nor  to  the  underwriter,  for  he  has  only  paid  upon  a 
risk  voluntarily  taken,  for  which  he  was  paid  by  the  mortgagee  a  full 
and  satisfactory  equivalent."  Perhaps  the  true  theory  lies  between 
these  opposite  positions  of  the  courts.  The  Massachusetts  court  is  un- 
doubtedly correct  in  its  position,  that  there  is  no  equitable  ground  for 
the  application  of  the  doctrine  of  subrogation.  But  it  is  incorrect  to 
go  farther  and  hold  that  the  mortgagee  may  recover  both  sums  to  his 
own  use.  A  mortgagee  insures  only  his  interest  in  the  mortgaged 
premises,  and  -that  interest  is  exhausted  when  the  debt  is  paid.  Graves 
V.  Hampden  Ins.  Co.,  10  Allen  283;  Sussex  Ins.  Co.  f.  Woodruff,  2 
Dutch.  541.  From  this  position  it  is  an  easy  step  to  say,  that  when  the 
mortgaged  property,  after  the  loss  by  fire  is  sufficient  to  satisfy  the  mort- 
gage-debt, and  it  is  actually  satisfied,  either  by  foreclosure  or  by  pay- 
ment by  the  mortgagor,  the  mortgagee  has  sustained  no  loss.  See  ^tna 
Ins.  Co.  V.  Tyler,  16  Wend.  385;  Kernochan  r.  Bowery  Ins.  Co.,  17  N. 
Y.  428;  Carpenter  v.  Providence,  etc.,  Ins.  Co.,  16  Pet.  495;  Smith  V. 
Columbia  Ins.  Co.,  17  Pa.  St.  253.  Contra,  Excelsior  Ins.  Co.  v.  Ins. 
Co.,  55  N.  Y.  343.  The  mortgagee  may  proceed  either  against  the  in- 
surance company  on  the  policy,  or  against  the  mortgagor  on  the  mort- 
gage, and  neither  of  them  can  object,  or  compel  him  to  proceed  against 
both.  Nor  has  either  a  claim  against  the  other.  But  if  the  mortgagee 
does  recover  from  both,  the  position  of  the  mortgagee,  in  respect  to  the 
insurance  company,  is  the  same  as  if  the  mortgagor  had  paid  the  debt, 
before  application  had  been  made  for  the  insurance  money.  In  the 
latter  case,  he  could  not  recover  of  the  insurance  company,  for  he  had 
suffered  no  loss. 

41  Strong  V.  Ins.  Co.,  10  Pick.  40;  Tuck  V.  Hartford  Ins.  Co.,  56  N.  H. 
326;  Fame  v.  Wenans,  1  Hopk.  Ch.  283;  Stephens  r.  Mut.  Ins.  Co..  43 
111.  325;  Dyers  V.  Ins.  Co.,  35  Ohio  St.  606,  35  Am.  Rep.  623;  Manhat- 
tan Ins.  Co.  V.  Weill,  28  Gratt.  382,  26  Am.  Rep.  364;  111.  Ins.  Co.  V. 
Stanton,  57  111.  3.54;  Commercial  Ins.  Co.  r.  Spankneble,  52  III.  53,  4 
Am.  Rep.  582;  Hartford  Ins.  Co.  r.  Walsh,  .54  III..  4  Am.  Rep.  115. 
And  the  mortgagor  continues  to  have  an  insurable  interest  in  the  prop- 

349 


§   248  RIGHTS  OF   MORTGAGOR  AND   MORTGAGEE.         [PART  L 

And  in  the  absence  of  the  covenant  requiring  the  mortgagor 
to  keep  the  premises  insured,  the  mortgagee  has  not  the  right 
to  demand  the  appropriation  of  the  insurance  money  to  the 
payment  of  the  mortgage-debt.*'^  But  where  the  mortgage 
calls  for  the  insurance  of  the  premises,  and  the  mortgagor  per- 
forms the  covenant,  the  mortgagee  acquires  therein  a  beneficial 
interest,  and  is  entitled  to  have  the  insurance  money  applied 
to  the  debt.**  And  so,  also,  if  the  insurance  covers  one  of 
two  or  more  pieces  of  property  included  in  the  same  mort- 
gage, the  owners  of  the  other  pieces  of  property  have  the 
right  to  require  the  application  of  the  insurance  money  to 
the  payment  of  the  debt.**    But  where  the  loss  is  made  pay- 

erty,  as  long  as  his  right  of  redemption  is  not  completely  barred.  Gor- 
don V.  Ins.  Co.,  2  Pick.  249;  Cheney  v.  VVoodruflf,  54  N.  Y.  98;  Strong 
V.  Ins.  Co.,  supra;  Waring  v.  Loder,  53  N.  Y.  581.  Although  the  exist- 
ence of  a  mortgage  does  not  reduce  the  insurable  interest  of  the  mort- 
gagor, still  it  is  held  in  some  of  the  States  that,  if  inquiry  is  made  as 
to  this,  it  becomes  a  material  fact,  and  misrepresentations,  concern- 
ing the  existence  of  the  amount  secured,  will  vitiate  the  policy.  Daven- 
port V.  Ins.  Co.,  6  Cush.  340;  Brown  v.  People's  Ins.  Co.,  II  Cush.  280; 
Bowditch  Ins.  Co.  v.  Winslow,  8  Gray  38;  Packard  r.  Agawan  Ins.  Co., 
2  Gray  334.  Contra,  Norwich  Ins.  Co.  V.  Boomer,  52  111.  442,  4  Am. 
Rep.  618. 

42  Carter  v.  Rockett,  8  Paige  Ch.  437;  Hancox  r.  Fishing  Ins.  Co.,  3 
Sumn.  132;  Stearns  v.  Quincy  Mut.  Ins.  Co.,  124  Mass.  61,  26  Am.  Rep. 
647;  Wilson  V.  Hill,  3  Mete.  66;  VandegraflF  v.  Medlock,  3  Port.  389; 
Plimpton  V.  Ins.  Co.,  43  Vt.  497;  Columbia  Ins.  Co.  v.  Lawrence,  10 
Pet.  507;  Foster  v.  Van  Reed,  70  N.  Y.  19,  26  Am.  Rep.  544;  Carpenter 
V.  Providence,  etc.,  Ins.  Co.,  66  Pet.  495;  Thomas  v.  Vonkapff,  6  Gill 
&  J.  372;  McDonald  v.  Black,  20  Ohio  185;  Powles  v.  Innes,  11  M.  &  W. 
10;  Vernon  V.  Smith,  5  B.  &  A.  1;  De  Forest  v.  Fulton  Ins.  Co.,  1  Ha'll 
103;  Fame  v.  Winnons,  1  Hopk.  Ch.  283;  Neale  v.  Reed,  3  Dowl.  &  Ry. 
168. 

48  Concord,  etc.,  Ins.,  Co.,  v.  Woodbury,  45  Me.  447 ;  Gordon  v.  Ware 
Savings  Ins.  Co.,  115  Mass.  588;  Carter  v.  Rockett,  8  Paige  437;  Nor- 
wich Ins.  Co.  V.  Boomer,  52  111.  442;  In  re  Sands  Ale  Brewing  Co.,  3 
Bis3.  175;  Miller  v.  Aldrich,  31  Mich.  408;  Burns  v.  Collins,  64  Md. 
215;  Thomas  v.  Vonkapff,  6  Gill  &  J.  372;  Brant  v.  Gallup,  111  111. 
487;  Hyde  v.  Hartford  Ins.  Co.  (Neb.  1903),  97  N.  W.  Rep.  629; 
Eastern  Milling  Co.  v.  Eastern  Export  Co.  (Pa.  1903),  125  Fed.  Rep. 
143. 

44  Conn.  Mut.  Life  Ins.  Co.  v.  Scammon,  117  U.  S.  634. 
350 


CH.    XI.]  RIGHTS   OP   MORTGAGOR   AND    MORTGAGEE.  §    249 

able  to  the  mortgagor,  or  is  assigned  to  the  mortgagee  with- 
out the  consent  of  the  company,  alienation  by  the  mortgagor 
of  his  interest  will  defeat  the  policy,  even  as  to  the  mortgagee. 
For  the  complete  protection  of  the  mortgagee,  the  policy 
should  be  assigned  to  him  with  the  consent  of  the  company, 
and  the  assignment  should  be  made  to  appear  on  the  com- 
pany's books  as  well  as  on  the  face  of  the  policy.  When  the 
policy  is  in  this  shape,  the  mortgagee,  in  case  of  loss,  receives 
the  insurance  money  in  trust  to  apply  it  to  the  debt,  and  such 
application  may  be  enforced,  not  only  by  the  mortgagor,  but 
by  every  one  claiming  through  him  and  subject  to  the  mort- 
gage. The  surplus,  if  any,  goes  to  the  mortgagor  and  those  in 
privity  with  him.*'^ 

§  249.  Assignment  of  the  mortgage. —  Whether  the  mort- 
gagee's  interest  be  considered  a  legal  estate  or  only  a  lien, 
it  is  clear,  since  the  mortgage  is  in  form  a  conveyance,  and  is 
required  to  be  recorded  like  all  other  conveyances,  that  the 
proper  mode  of  assigning  it  is  by  deed  or  instrument  of  the 
same  character  as  the  mortgage  itself,  either  separate  from 

*5  Macomber  v.  Cambridge  Ins.  Co.,  8  Cush.  133 ;  Grosvenor  v.  Atlan- 
tic Ins.  Co.,  17  N.  R.  391;  Luckey  17.  Gannon,  37  How.  Pr.  134;  Fowley 
V.  Palmer,  5  Gray,  549;  Graves  v.  Hampden  Ins.  Co.,  10  Allen  382;  Con- 
cord, etc.,  Ins.  Co.,  v.  Woodbury,  45  Me.  447 ;  Larrabee  l'.  Lumbert,  32 
Me.  97;  Waring  v.  Loder,  53  N.  Y.  581;  Clark  v.  Wilson,  103  Mass. 
221;  Mix  V.  Hotchkiss,  14  Conn.  32;  Hyde  v.  Hartford  Ins.  Co.  (Neb. 
1903),  97  N.  W.  Rep.  629;  Eastern  Milling  Co.  v.  Eastern  Export  Co. 
(Pa.  1903),  125  Fed.  Rep.  143.  Wbere  the  insurance  is  obtained  in 
the  name  of  the  mortgagor,  but  the  policy  contained  a  provision,  that 
the  loss,  if  any,  is  to  be  paid  to  the  mortgagee;  generally  it  is  required 
that  suit  on  the  policy  must  be  instituted  in  the  mortgagee's  name,  or 
jointly  with  the  mortgagor.  Ennis  v.  Harmony  Ins.  Co.,  3  Bosw.  516; 
Concord  Mut.  Ins.  Co.  v.  Woodbury,  45  Me.  447;  Grosvenor  v.  Atlantic 
Ins.  Co.,  17  N.  Y.  391 ;  Norwich  Ins.  Co.  v.  Boomer,  52  111.  442,  4  Am. 
Rep.  618;  Frink  v.  Hampden  Ins.  Co.,  45  Barb.  384;  Martin  V.  Frank- 
lin Ins.  Co.,  38  N.  J.  L.  140.  But  with  the  consent  of  the  mortgagee, 
the  mortgagor  may  bring  the  suit  alone  in  his  own  name.  Patterson  i'. 
Triumph  Ins.  Co.,  64  Me.  500;  Farrow  v.  Ins.  Co.,  18  Pick.  53;  Jackson 
n.  Farmers*  Ins.  Co.,  5  Gray  52;  Turner  v.  Quincy  Ins.  Co.,  109  Mass. 
568;  Illinois  Ins.  Co.  v.  Stanton,  57  111.  354. 

351 


§   250  RIGHTS  OP   MORTGAGOR  AND  MORTGAGEE.         [PART   I. 

or  written  on  the  back  of  the  mortgage,  together  with  the 
assignment  and  delivery  of  the  instrument  of  indebtedness, 
if  there  be  any.  Such  an  assignment  would  vest  the  entire 
legal  interest  of  the  mortgagee  in  the  assignee.*"  Whether  a 
deed  is  absolutely  required  to  assign  the  legal  interest  of  the 
mortgagee  depends  upon  the  construction  placed  upon  mort- 
gages in  the  State  in  which  the  question  arises.  And,  in 
determining  this  question,  it  must  be  observed  that,  although 
the  assignment  of  the  mortgage  Uebt,  irrespective  of  its  ef- 
fect upon  the  mortgage,  will  be  governed  by  the  lex  loci  con- 
tractus, the  assignment  of  the  mortgage  itself  must  conform 
to  the  law  of  the  place  where  the  mortgaged  land  is  situated.*"' 

§  250.  Common  law  assignment. —  At  common  law,  and 
under  the  prevailing  common-law  theory,  nothing  less  than 
a  deed  will  be  sufficient  to  pass  the  legal  interest  of  the  mort- 
gagee.**    But  the  deed  need  not  in  express  words  be  the  as- 

♦«  Jones  on  Mort.,  Sec.  786;  2  Washburn  on  Real  Prop.  113-118. 

*T  Story  on  Confl.,  Sees.  363,  364 ;  Goddard  V.  Sawyer,  9  Allen  78. 
But  this  is  not  the  case  in  regard  to  the  equitable  assignment  of  the 
mortgage,  effected  by  the  transfer  of  the  debt.  The  equitable  rights  of 
the  parties  are  governed  by  the  lex  loci  contractus.  See  Hoyt  v.  Thomp- 
son, 19  N.  Y.  207;  Dundas  V.  Bowler,  3  McLean,  397;  Murrell  V.  Jones, 
40  Miss.  565.  Under  N.  Y.  Laws  ( 1896),  p.  607,  c.  547,  Sec.  240,  an  as- 
signment of  a  mortgage,  when  recorded,  has  the  same  standing  with  any 
other  recorded  instrument  of  writing.  Weideman  V.  Pech,  92  N.  Y.  S. 
493,  102  App.  Div.  163.  See  also,  in  New  Jersey  Laws  (1898),  p.  690 
Sec.  53,  construed  in  Eiggins  v.  Jamesburg  Co.,  58  Atl.  Rep.  1078. 
In  Illinois,  the  holder  and  assignee  of  the  debt  takes  the  mortgage  as 
an  incident  thereof.  Such  an  assignee  takes  subject  to  equities  of  the 
makers,  but  not  of  third  parties.  Kittler  v.  Studebaker,  113  111.  App. 
342.  This  is  also  the  rule,  in  Missouri.  Bank  v.  Ragsdale,  158  Mo. 
068,  71  S.  W.  Rep.  178;  Bishop  v.  Chase,  156  Mo.  158,  56  S.  W.  Rep. 
1080;  Investment  Co.  V.  Fulton,  86  Mo.  App.  138.  A  tender  to  an  as- 
signee of  the  debt  is  a  recognition  of  the  title  of  the  assignee  to  the 
mortgage.  Juckett  v.  Fargo  Merc.  Co.  (S.  D.  1905),  102  N.  W.  Rep. 
004. 

*8  Warden  V.  Adams,  15  Mass.  233;  Adams  V.  Parker,  12  Gray  53; 
Ruggles  V.  Barton,  13  Gray  506;  Douglass  v.  Durin,  51  Me.  121; 
Mitchell  V.  Burnham,  44  Me.  286;  Burton  v.  Baxter,  7  Blackf.  297; 
352 


CH.    XI.]  RIGHTS   OP   MORTGAGOR   AND   MORTGAGEE.  §    250 

signment  of  the  mortgage.  A  quit-claim  deed  or  an  ordinary 
deed  purporting  to  convey  an  absolute  estate  in  fee  will  carry 
whatever  legal  interest  the  mortgagee  has  in  the  mortgaged 
premises,  although  it  seems  that  it  would  have  no  effect  upon 
the  mortgage  debt,  unless  it,  too,  was  assigned.  But  a  deed 
with  a  general  warranty  will  in  equity  work  an  assignment 
of  the  debt,  wherever  the  grantee  has  paid  a  valuable  and  sub- 
stantial consideration  for  the  same.*"  Under  this  theory  an 
assignment  of  the  mortgage  debt  would  not  operate  as  an 
assignment  of  the  mortgage.'**  If  the  assignment  of  the  mort- 
gage does  not  carry  with  it  the  mortgage-debt,  or  the  mort- 
gage is  assigned  to  one  person  and  the  debt  to  another,  the 
assignee  of  the  mortgage  receives  only  the  legal  estate,  which 
he  holds  in  trust  for  the  one  who  owns  the  debt.'^     Such  is 

Cottrell  r.  Adams,  2  Biss.  351 ;  Twitoliell  v.  McMurtrie,  77  Pa.  St.  383 ; 
Sanders  r.  Cassaday,  86  Ala.  246;  but  in  New  Jersey  a  seal  is  not  now 
necessary.  Mulford  v.  Peterson,  35  N.  J.  L.  127;  Hammond  t".  Lewis,  1 
How.  14. 

"Hunt  V.  Hunt,  14  Pick.  374;  Savage  V.  Hall,  12  Gray  364;  Hill  V. 
More,  40  Me.  525;  Connor  r.  Whitmore,  52  Me.  186;  Collamer  V.  Lang- 
don,  29  Vt.  32;  Civan  V.  Doe.  7  Blackf.  210;  Thompson  v.  Kenyon,  100 
Mass.  108 ;  Rodriguez  V.  Hayes.  75  Tex.  225.  But  where  there  is  a 
se])arate  instrument  of  indebtedness,  in  order  to  pass  the  debt,  it  must 
also  be  delivered,  unless  the  deed  is  a  warranty  deed,  when  there  will 
be  an  equitable  assignment  of  the  debt.  Lawrence  v.  Stratton,  6  Cush. 
163;  Buggies  V.  Barton,  13  Gray  500;  Olmstead  v.  Elder,  2  Sandf.  Ch. 
325;  Di.xficld  r.  Newton,  41  Me.  221;  Furbush  r.  Goodwin,  25  N.  H. 
425;  Givan  v.  Doe,  7  Blackf.  210;  Welsh  v.  Phillips.  54  Ala.  309,  25 
Am.  Rep.  679 ;  but  see  Weeks  V.  Eaton,  15  N.  H.  145 ;  Hinds  V.  Ballou, 
44  N.  H.  621;  Rodriguez  V.  Hayes,  76  Tex.  225;  Fitts  v.  Beardsley,  8 
N.  Y.  S.  567. 

80  Adams  r.  Gray,  12  Gray  53;  Stanley  t'.  Kempton.  59  Me.  472; 
Young  r.  Miller,  6  Gray  152 ;  Bourland  v.  Kipp,  55  111.  376. 

81  Story  Eq.,  Sec.  1023  n ;  Merritt  V.  Bartholick,  36  N.  Y.  44 ;  Moore 
V.  Ware,  38  Me.  496;  Warren  v.  Homestead,  33  Me.  256;  Jackson  V. 
Willard,  4  Johns.  41;  Aymar  v.  Bill,  5  Johns.  Ch.  570;  Swan  V.  Jupple, 
35  Iowa  248;  Hutchins  v.  Carleton,  19  N.  H.  478;  Bailey  t*.  Gould, 
Walk.  (Mich.)  478;  Peters  v.  Jamestown  Bridge  Co.,  5  Cal.  334;  John- 
son V.  Comett,  29  Ind.  59;  Langster  v.  Love,  11  Iowa  580;  Patton  V. 
Pearson,  57  Me.  434.  To  pass  the  beneficial  interest  in  the  mortgage, 
the  mortgage-note  or  bond,  if  there  be  such,  must  be  assigned  with  the 

23  353 


§   250  RIGHTS  OP  MORTGAGOR  AND   MORTGAGEE.         [PART  I. 

also  the  rule  at  common  law,  where  the  debt  upon  the  death 
of  the  mortgagee  vested  in  the  personal  representatives,  while 
the  mortgage  descended  to  his  heirs  in  trust  for  the  personal 
estate/^  The  assignee  cannot  acquire  by  such  an  assignment 
any  beneficial  interest  in  the  mortgage,  and  the  trust  is  bind- 
ing upon  him  and  all  his  privies  who  have  actual  or  construc- 
tive notice.  And  where  the  mortgagor  has  notice  of  the 
assignments  of  the  mortgage  and  debt  to  different  persons, 
he  cannot  discharge  the  mortgage  by  payment  or  tender  of 
payment  to  the  assignee  of  the  mortgage.'^^  In  a  number  of 
the  States  it  is  now  held  that  the  assignment  of  the  mort- 
gage without  the  debt  is  a  nullity ;  it  conveys  no  estate  to  the 

mortgage,  at  least  as  against  the  mortgagor  and  subsequent  assignees 
of  the  debt.  Bowers  t\  Johnson,  49  N.  Y.  432;  Hitchcock  v.  Merrick, 
18  Wis.  357;  Warden  v.  Adams,  15  Mass.  233;  Kursheedt  v.  McCune, 
20  Abb.  N.  C.  265.  And  the  note  or  bond  need  not  be  indorsed,  if  de- 
livered. Pratt  V.  Skolfield,  45  Me.  386;  King  v.  Harrington,  supra; 
Pease  v.  Warren,  29  Mich.  9;  contra,  Kelly  v.  Burnham,  9  IT.  H.  20. 
But  where  the  debt  has  not  been  assigned  to  another,  it  may,  as 
against  the  mortgagee,  pass  by  assignment  in  equity  to  the  assignee  of 
the  mortgage  without  any  formal  transfer,  if  it  be  the  intention  of  the 
parties  that  the  assignee  should  acquire  a  beneficial  interest  in  the 
mortgage.  Merritt  v.  Bartholick,  36  N.  Y.  44;  Buckley  v.  Chapman.  9 
Conn.  5;  Northampton  Bk.  V.  Balliet,  8  W.  &  S.  311;  Campbell  r. 
Burch,  1  Lans.  178;  Cooper  V.  Newland,  17  Abb.  Pr.  342.  And  where 
there  is  no  separate  instrument  of  indebtedness,  the  beneficial  interest 
will  always  pass  with  the  assignment  of  the  mortgage  unless  it  is  ex- 
pressly reserved.  Severance  v.  GrifiTitt,  2  Lans.  38;  Caryl  v.  Russell,  7 
lb.  416;  Coleman  v.  Van  Renssalaer,  44  How.  Pr.  368. 

52  Washburn  on  Real  Prop.  120,  121,  141;  Jackson  V.  Delancey,  11 
Johns.  365;  Wilkins  v.  French,  20  Me.  Ill;  Dewey  V.  Van  Deusen,  4 
Pick.  19;  Kinna  V.  Smith,  2  Green  Ch.  14;  Chase  v.  Lockerman,  11  Gill 
&  J.  185;  Taft  V.  Stevens,  3  Gray  504;  Green  v.  Hunt,  Cooke  344; 
White  V.  Rittenmyer,  30  Iowa  272. 

B3  Mitchell  V.  Burnham,  44  Me.  302 ;  James  v.  Johnson,  6  Johns.  Ch. 
417;  Gregory  v.  Savage,  32  Conn.  250;  Henderson  r.  Pilgrim,  22  Texas 
464.  But  the  notice  must  be  actual.  The  record  of  the  assignment  is 
not  constructive  notice  to  the  mortgagor.  Williams  r.  Sorrell,  4  Ves. 
Jr.  389;  Mitchell  V.  Burnham,  supra;  Wolcott  V.  Sullivan,  1  Edw.  Ch. 
399;  Reed  r.  Marble,  10  Paige  Ch.  409;  3  Washburn  on  Real  Prop.  316; 
see  post.  Sec.  260. 
354 


CH.   XI.]  RIGHTS   OP    MORTGAGOR   AND   MORTGAGEE.  §    251 

assignee,  and  he  may  be  treated  as  a  trespasser  by  the  mort- 
gagor or  the  assignee  of  the  debt.^* 

§  251.  Assignmeiit  under  the  lien  theory. —  Although  it  is 
still  held  in  those  States  which  have,  to  a  greater  or  less  de- 
gree, discarded  the  common-law  theory,  that  an  effectual 
legal  assignment  of  the  mortgage  requires  a  deed  proved  and 
acknowledged  like  all  other  deeds  of  conveyance,  it  is  there 
held  that,  the  debt  being  the  principal  thing  and  the  mortgage 
only  a  security  or  lien,  an  assignment  of  the  debt  will  oper- 
ate as  an  equitable  assignment  of  the  mortgage,  binding 
upon  all  persons  having  notice,  and  giving  to  the  assignee  the 
power  in  equity  to  exercise  all  the  rights  of  the  mortgagee.'*' 

5 <  Wilson  V.  Troup,  2  Cow.  195;  Jackson  v.  Willard,  4  Johns.  43; 
Merritt  v.  Bartholick,  36  N.  Y.  44 ;  Purdy  v.  Huntington,  42  N.  Y.  346 ; 
Furbish  V.  Goodwin,  25  N.  H.  425;  Burdett  v.  Clay,  8  B.  Mon.  287; 
Blair  v.  Bass,  4  Blackf.  539 ;  Dick  V.  Mawry,  9  Smed.  &  M.  448 ;  Ladue 
r.  R.  R.  Co.,  13  Mich.  396;  Perkins  V.  Stearne,  23  Texas  .503;  Peters  v. 
Jamestown  Bridge  Co.,  5  Cal.  335;  Bloomingdale  v.  Bowman,  4  N.  Y. 
S.  860.  But  if  the  mortgagee  is  in  possession  the  rule  is  different,  and 
sufficient  title  passes  to  the  assignee  of  the  mortgage  to  give  him  the 
right  of  possession,  which  he  can  maintain  against  all  who  do  not  show 
a  better  title.  Smith  v.  Smith,  15  N.  H.  58;  Hinds  V.  Ballou,  44  N.  H. 
487;  Pickett  v.  Jones,  63  Mo.  195. 

05  Wolcott  V.  Winchester,  15  Gray  461;  Vose  V.  Handy,  2  Greenl.  322; 
Northy  v.  Northy,  45  N.  H.  144;  Blake  V.  Williams,  36  N.  H.  39;  Keyes 
r.  Wood,  21  Vt.  331;  Lawrence  v.  Knap,  1  Root  248;  Neilson  v.  Blight, 
1  Johns.  Cas.  205;  Evertson  v.  Booth,  19  Johns.  491;  Parmelee  V.  Daun, 
23  Barb.  461;  Wilson  V.  Troup,  2.  Cow.  242;  Craft  v.  Webster,  4  Rawle, 
242;  Danley  v.  Hays,  17  Serg.  &  R.  400;  Partridge  V.  Partridge,  38  Pa. 
St.  78;  Hyman  v.  Devereux,  63  N.  C.  024;  Muller  r.  Wadlington,  5  S. 
C.  242;  Wright  v.  Eaves,  10  Rich.  Eq.  585;  Scott  V.  Turner,  15  La.  An. 
346;  Graham  v.  Newman,  21  Ala.  497;  Holmes  V.  McGinty,  44  Miss. 
94;  Martin  V.  McReynolds,  6  Mich.  70;  U.  S.  Bank  v.  Covert,  13  Ohio 
240;  Mills  V.  Gray,  4  B.  Mon.  117;  Burdett  v.  Clay,  8  lb.  287;  Mapps  v. 
Sharpe,  32  111.  165;  Potter  v.  Stevens,  40  Mo.  229;  Burton  v.  Baxter, 
7  Blackf.  297;  Fisher  v.  Otis,  3  Chand.  83;  Willis  v.  Farley,  24  Cal. 
497;  Chilton  v.  Brooks,  71  Md.  445;  Lee  v.  Clark,  89  Mo.  553.  But  as 
a  general  proposition,  such  an  assignee  acquires  no  legal  interest,  and 
can  therefore  exercise  none  of  the  rights  of  a  legal  owner,  such  as  the 
•maintenance  of  an  action  of  ejectment  or  a  writ  of  entry.     Cottrell  v. 

355 


§   251  RIGHTS   OF   MORTGAGOR   AND    MORTGAGEE.         [PART   I. 

Under  this  theory,  whatever  constitutes  in  the  law  of  com- 
mercial paper  a  good  assignment  of  the  debt,  will  operate 
as  an  equitable  assignment  of  the  mortgage.  Thus  a  parol 
sale  and  transfer  of  the  debt  is  a  good  equitable  assignment  of 
the  mortgage.'"  Where  the  mortgage  is  given  to  secure  two 
or  more  debts,  the  assignment  of  one  of  them  will  operate 
as  an  assignment  of  a  pro  rata  share  in  the  mortgage,  unless 
it  is  the  expressed  intention  of  the  parties  that  the  entire 
mortgage-security  should  be  retained  for  the  benefit  of  the 

Adams,  2  Biss.  351;  Young  V.  Miller,  6  Gray  152;  Dwinel  v.  Perley,  32 
Me.  197 ;  Edgerton  v.  Young,  43  111.  464 ;  Partridge  V.  Partridge,  38  Pa. 
St.  78;  Warden  r.  Adams,  15  Mass.  232.  But  in  the  code  States  where 
all  actions  are  instituted  in  the  name  of  the  party  beneficially  inter- 
ested, the  equitable  assignee  may  enforce  the  mortgage  in  his  own  name. 
Gower  r.  Howe,  20  Ind.  396;  Clearwater  v.  Rose,  1  Blackf.  138;  Gar- 
land V.  Richeson,  4  Rand.  266;  see  also  to  the  same  effect,  Kinney  v. 
Smith,  2  Green  Ch.  14 ;  Mulford  v.  Peterson,  35  N.  J.  Eq.  127 ;  South- 
erin  v.  Mendum,  35  N.  H.  420;  Austin  v.  Burbank,  2  Day  396;  Clark- 
sons  r.  Doddridge,  14  Graft.  44;  Runyan  v.  Mersereau,  11  Johns.  534. 
And  in  those  States  where  the  legal  title  of  the  mortgage  does  not  pass 
with  the  assignment  of  the  debt,  equity  may  compel  the  holder  of  the 
legal  title  to  transfer  it  to  the  assignee  of  the  debt,  or  to  maintain  the 
suits  necessary  for  the  protection  of  the  assignee.  Wolcott  v.  Win- 
chester, 15  Gray  461;  Crane  V.  March,  4  Pick.  131;  Mount  v.  Suydam,  4 
Sandf.  Ch.  399;  Lyon's  App.,  61  Pa.  St.  15;  Baker  V.  Terrell,  8  Minn, 
195.. 

5«Lane  v.  Duchac,  73  Wis.  646;  Tiedeman  Com.  Paper,  Sec.  250; 
Bank  r.  Ragsdale.  158  Mo.  668,  71  S.  W.  Rep.  178;  Bishop  v.  Chase, 
156  Mo.  158,  56  S.  W.  Rep.  1080;  Investment  Co.  v.  Fulton,  86  Mo. 
App.  138;  Kittler  v.  Studebaker,  113  111.  App.  342;  Mohuken  Co.  V. 
Pellefrenn,  87  N.  Y.  S.  737,  93  App.  Div.  420;  Barlow  v.  Cooper,  109 
111.  App.  375;  Freeburg  v.  Eksell,  123  Iowa  464,  99  N.  W.  Rep.  118; 
Syracuse  Bank  v.  Merrick,  89  N.  Y.  S.  238,  96  App.  Div.  581.  As  to 
defenses  against  the  assignee  of  the  debt,  see  Brosseon  v.  Lowry,  209  111. 
405,  70  N.  E.  Rep.  901.  The  right  to  enforce  a  mortgage  security, 
passes  as  an  incident  to  the  transfer  of  the  mortgage  debt.  Barlow  V. 
Cooper,  109  111.  App.  375.  As  a  mortgage  is  but  an  incident  of  the 
debt  it  is  given  to  secure  there  can  be  no  transfer  of  the  mortgage, 
without  the  debt.  Merritt  v.  Bartholick,  36  N.  Y.  44;  Finch's  Sel.  Cas. 
1114;  Martin  v.  Nowlin,  2  Burr.  969;  Green  v.  Hart,  1  Johns.  580; 
Jackson  v.  Blodgett,  5  Cow.  231;  Cooper  v.  King,  17  Abb.  342. 

356 


CH.  xl]       rights  op  mortgagor  and  mortgagee.  §  25i 

remaining  debts.^^  This  is  always  the  ease,  in  the  absence* 
of  an  express  contract,  where  the  debts  secured  by  the  same 
mortgage  fall  due  at  the  same  time.  But  where  they  fall 
due  at  different  periods,  in  very  many  of  the  States  one  is 
generally  held  to  have  priority  over  the  other  in  the  order 
in  which  they  fall  due.  The  effect  is  the  same  as  if  there 
had  been  successive  and  independent  mortgages,  one  for  each 
debt.^*  But  it  is  always  competent  for  the  parties  to  con- 
trol the  priority  of  the  debts  secured  by  the  same  mortgage^ 
and  they  may  altogether  exclude  one  or  more  from  the  en- 
joyment of  the  security.^®  It  has  also  been  held  that  th(' 
mortgage-debts  in  the  hands  of  assignees  will  have  priority  in 
the  order  of  their  assignment.®"  Inasmuch  as  under  the  lien 
theory  the  mortgagee  has  very  few,  if  any,  rights  which  are 
enforceable  only  in  law,  the  equitable  assignment  of  the 
mortgage  affords  sufficient  protection  for  the  assignee.  This 
is  particularly  the  case  in  those  States  where  the  mortgagee  is 
prohibited  from  assigning  the  mortgage  without  the  debt. 

'•7  Donley  r.  Hays,  17  Serg.  &  R.  400;  Belding  v.  Manly,  21  Vt.  550; 
Miller  f.  Rutherland,  etc.,  R.  R.,  40  Vt.  39;  Cooper  v.  Ulman,  Walk. 
(Mich.)  251;  Lane  v.  Davis,  225;  Blair  v.  White,  61  Vt.  110;  Pauzel 
V.  Brookmire,  51  Ark.  105;  In  re  Preston,  54  Hun  10. 

S8  Stanley  V.  Beatty,  4  Tnd.  134;  McVay  V.  Bloodgood,  9  Port.  547? 
U.  S.  Bk.  V.  Covert,  13  Ohio  240;  Preston  v.  Hodges,  oO  111.  56;  Thomp- 
son r.  Field,  38  Mo.  325;  Isett  v.  Lucas,  17  Iowa  506;  G.  Wathmeys  V. 
Ragland,  1  Rand.  466;  Larrabee  v.  Lambert,  32  Me.  97;  contra,  Darby 
r.  Hays,  17  Serg.  &  R.  400;  Henderson  v.  Herrod,  10  Smed.  &  M.  631; 
English  r.  Carney,  25  Mich.  178;  Grattan  v.  Wiggins,  23  Cal.  30;  Gor- 
don v.  Hazzard  (S.  C),  11  S.  E.  Rep.  100. 

.%9  Bryant  v.  Damon,  6  Gray  165;  Mechanic's  Bk.  v.  Bk.  of  Niagara,  0 
Wend.  410;  Eastman  v.  Foster,  8  Mete.  19;  Stevenson  v.  Black,  1  N.  .L 
Eq.  338;  Wright  v.  Parker,  2  Aik.  212;  Walker  r.  Dement,  42  111.  272; 
Bk.  of  England  v.  Tarleton.  23  Miss.  178;  Cooper  v.  Ulman,  Walk. 
(Mich.)  251;  Grattan  r.  Wiggins.  23  Cal.  30;  Willett  V.  Johnson.  84 
Ky.  411;  Morgan  v.  Kline,  77  Iowa  681. 

«"  Eastman  v.  Foster.  8  Mete.  19;  Noyes  v.  White,  9  Minn.  640; 
contra.  Page  r.  Pierce,  26  N.  H.  317;  Stevenson  v.  Black,  1  N.  J.  Eq. 
338;  Henderson  v.  Herrod,  18  Mass.  631. 

367 


§    253  RIGHTS   OP   MORTGAGOR   AND    MORTGAGEE.  [PAKT    T. 

§  252.  Assignment  of  the  mortgfagor's  interest. —  The  mort- 
gagror's  interest,  whether  before  or  after  condition  broken, 
at  common  law  or  under  the  lien  theory,  can  only  be  assigned 
by  deed,  for  in  any  case  and  under  all  circumstances  the 
mortgagor  is  considered,  as  against  all  the  world,  except  the 
mortgagee,  as  the  owner  of  ther  legal  estate,  which  he  can 
convey  as  long  as  his  equity  of  redemption  has  not  been 
barred  or  foreclosed."^  As  against  the  mortgagee,  the  mort- 
gagor 's  assignee  has  merely  the  rights  of  the  mortgagor  under 
the  mortgage;  he  takes  the  estate  subject  to  the  mortgage. 
And  this  is  the  case  with  the  second  mortgagee,  as  well  as, 
with  the  absolute  purchaser.®^ 

§  253.  Rights  and  liabilities  of  assignees. —  In  respect  to  the 
mortgaged  premises,  the  assignees  enjoy  all  the  rights,  and 
assimie  all  the  liabilities,  of  their  respective  assignors.  If  the 
mortgagee  is  entitled  to  possession,  his  assignee  will  also  be 
entitled  to  possession ;  he  may  appropriate  the  rents  and 
profits  while  in  possession  and,  in  the  same  manner  as  the 
mortgagee,  maintain  all  the  actions  given  for  the  protection 
of  his  interests.®^    Whether  the  assignee  of  the  mortgage  takes 

61  Co.  Lit.  205  a,  Butler's  note,  96;  White  v.  Whitney,  3  Mete.  81; 
White  t\  Rittenniyer,  30  Iowa  272;  Bigelow  V.  Wilson,  1  Pick.  485;  Bu- 
chanan V.  Monroe,  22  Texas  537. 

82  Hartley  v.  Harrison,  24  N.  Y.  170;  Andrews  v.  Fisk,  101  Mass.  424; 
Flanagan  v.  Westcott,  11  N.  J.  Eq.  264;  First  National  Bank  v.  Honey- 
man  (Dak.),  42  N.  W.  Rep.  771.  An  assumption  of  a  mortgage  debt 
as  a  part  consideration,  in  a  purchase  of  the  mortgagor's  equity,  is 
held  to  make  the  purchaser  the  principal  debtor  and  the  mortgagor  a 
surety,  in  Missouri.  Nelson  v.  Brown,  140  Mo.  580;  Pratt  v.  Conway, 
148  Mo.  291;  Wagman  v.  Jones,  58  Mo.  App.  313;  Regan  V.  Williams, 
185  Mo.  620,  84  S.  W.  Rep.  959. 

63  Jackson  v.  Minkler,  10  Johns.  480;  Jackson  v.  Bowen,  7  Cow.  13; 
Jackson  v.  Hopkins,  18  Johns.  487 ;  Eastman  v.  Batchelder,  36  N.  H. 
141;  Northampton  Mills  v.  Ames,  8  Mete.  1;  Henshaw  v.  Wells,  9 
Humph.  568;  Phyfe  v.  Riley,  15  Wend.  248;  Strang  v.  Allen,  44  111. 
428;  Bolles  v.  Carli,  72  Minn.  113;  Whitney  v.  McKinney,  7  Johns.  Ch. 
144;  Miller  V.  Henderson,  10  N.  J.  Eq.  320;  Andrews  v.  McDaniel,  B8 
N.  C.  385;  Green  v.  Marble,  37  Iowa  95;  Macomb  v.  Prentiss  (Mich.), 
358 


CH.    XI.]  RIGHTS   OF   MORTGAGOR   AND   MORTGAGEE.  §    253 

it  and  the  debt  subject  to  all  existing  equities  between  the 
original  parties,  depends  in  the  first  instance  upon  the  na- 
ture of  the  instrument  of  indebtedness.  If  it  be  a  bond  or 
any  other  non-negotiable  instrument,  the  assignee  will  take 
both  it  and  the  mortgage  subject  to  all  the  defenses,  which 
might  be  set  up  against  the  mortgagee.®*  But  in  some  of  the 
States  if  the  instrument  of  indebtedness  be  a  negotiable  note, 
the  mortgage,  being  treated  as  incident  to  the  debt,  receives 
from  the  note  a  negotiable  character,  and  passes  to  the  as- 
signee free  from  the  equities  existing  between  the  mortgagee 
and  mortgagor,  unless  by  express  terms  the  mortgage  is  as- 
signed subject  to  the  equities.  And  to  be  free  from  them,  the 
assignment  must  be  made  before  the  debt  is  due."'*  But  if  a 
mortgage  covers  more  than  one  note,  and  one  of  the  notes  is 
overdue  when  all  of  them  are  assigned,  the  assignment  is  con- 

44  X.  W.  Rep.  324;  Barnes  v.  Boardman,  140  M:iss.  100;  Goffert  v. 
Wallace,  66  Mich.  618;  but  the  assignee  can  only  maintain  actions 
which  accrue  after  the  assignment.     Gobbert  v.  Wallace,  66  Miss.  618. 

«4  Trustees  Union  College  v.  Wheeler,  61  N.  Y.  88;  Ingraham  v.  Dis- 
borough,  47  N.  Y.  421;  Davis  v.  Beehstein,  69  N.  Y.  440,  2.5  Am.  Rep. 
218;  Pendleton  v.  Fay,  2  Paige  Ch.  202;  Ellis  v.  Messervic,  11  Paige 
Ch.  467;  8.  c.  2  Denio,  640;  Twitchell  V.  McMurtrie,  77  Pa.  St.  .S83; 
Musgrove  V.  Kennell,  23  N.  J.  Eq.  75;  Reeves  v.  Scully,  Walk.  (Mich) 
248 ;  Croft  V.  Bunster,  9  Wis.  503 ;  Coulding  V.  Bunster,  76.  503 ;  Horts- 
man  V.  Gerker,  49  Pa.  St.  282;  MofTatt  v.  Hardin,  22  S.  C.  9;  Morris 
r.  Peck,  73  Wis.  482;  Morgan's  Appeal,  126  Pa.  St.  500;  Harrison  r. 
Burlingame,  48  Hun  212. 

«5  Scott  V.  Magloughlin  (HI.),  24  N.  E.  Rep.  1030;  Barnum  r.  Phe- 
nix,  CO  Mich.  388;  Carpenter  v.  Longan,  16  Wall.  271;  Kenicott  v.  Su- 
pervisors, 10  Wall.  452;  Pierce  v.  Faunce,  47  Me.  507;  Gould  v.  Marsh, 
1  Hun  566;  Jackson  v.  Blodgett,  5  Cow.  203;  Green  v.  Hart,  1  Johns. 
580;  Taylor  v.  Page,  6  Allen  86;  Young  v.  Miller,  6  Gray  152;  Brcen 
V.  Seward,  11  Gray  118;  Webb  V.  Haselton,  4  Neb.  308,  19  Am.  Rep. 
638.  If  a  grantee  of  land  purchases  for  full  value  and  withholds  pnit 
of  the  consideration,  to  satisfy  an  outstanding  mortgage,  he  is  person- 
ally liable  therefor,  if  he  does  not  pay  it  off.  Lobdell  V.  Ray,  213  III. 
389,  72  X.  E.  Rep.  1076.  And  a  grantee  who  assumes  and  agrees  to 
pay  an  outstanding  mortgage  is  liable  therefor,  the  same  as  the  origins  I 
mortgagor.  Santee  r.  Keefe  (Iowa  1905),  102  N.  W.  Rep.  803;  Regan 
V.  Williams,  185  Mo.  620,  84  S.  W.  Rep.  959. 

350 


§    253  RIGHTS   OF    MORTGAGOR    AND    MORTGAGEE.         [PART   I. 

sidered  as  to  all  of  the  notes  so  far  made  after  maturity,  as  to 
destroy  the  negotiable  character  of  the  mortgage  as  a  security 
for  the  notes  which  are  not  yet  due.®*  But  in  other  courts, 
the  negotiable  character  of  the  note  is  held  not  to  extend  to 
the  mortgage,  which  secures  its  payment.  And  although,  as 
far  as  the  personal  liability  of  the  mortgagor  on  the  note  is 
concerned,  the  assignee  takes  it  free  from  the  equities,  the 
mortgage  in  his  hands  is  subject  to  them.**^  If  the  mortgagee 
or  other  holder  of  the  mortgage  makes  an  assignment  when  the 
mortgage  debt  had  been  paid  in  whole  or  in  part,  he  will  be 
liable  in  damages  to  his  assignee  for  such  failure  of  the  sub- 
ject-matter of  the  assignment.*'*  The  assignee  of  the  mort- 
gagor on  the  other  hand,  has  a  right  to  redeem  the  estate  and 
call  the  mortgagee  to  account  for  the  rents  and  profits  re- 
ceived by  him  while  in  possession,  even  though  he  has  per- 
mitted the  mortgagor  to  enjoy  them  after  notice  of  the  as- 
signment. For  while  in  possession  the  mortgagee  is  trustee 
as  to  the  rents  and  profits,  not  only  of  the  mortgagor,  but  also 
of  the  mortgagor's  assignees,  and  he  cannot  after  notice  of 
the  assignment,  pay  them  over  to  the  mortgagor.  He  must 
apply  them  to  the  satisfaction  of  the  mortgaged  debt.*'*'  But 
although  the  mortgagor's  assignee  has  a  right  to  redeem  the 
mortgaged  premises,  he  does  not  by  the  assignment  assume  the 
personal  liability  of  the  mortgagor,  unless  the  deed  of  as- 
signment in  express  terms  imposes  such  liability  upon  the  as- 
signee as  a  part  of  the  consideration.^**     Where  there  is  an 

86Abele  r.  McGuigan  (Mich.),  44  N.  W.  Rep.  393.  See  to  same  gen- 
eral effect,  Whitney  f.  Traynor,  74  Wis.  289. 

07  Olds  V.  Cummings,  31  111.  188;  Sumner  v.  W'augh,  56  111.  531; 
White  f.  Sutherland,  64  111.  181;  Redin  V.  Branhan,  43  Minn.  283; 
Boone  v.  Clark,  129  111.  466. 

08  Eaton  v.  Knowles,  61  Mich.  625. 

CO  Goodman  r.  White,  26  Conn.  317;  Mannisig  v.  Markel,  19  Iowa 
104;  Smith  v.  Manning,  9  Mass.  422;  Bell  v.  Mayor,  10  Paige  Ch.  49. 
But  a  clause  in  a  deed,  to  a  grantee  of  real  estate,  that  he  accepts  and 
agrees  to  pay  a  mortgage  on  the  land,  is  not  binding  on  him,  unless  he 
Hccepts  the  deed.     Merriam  t\  Schmidt,  211  111.  263,  71  N.  E.  Rep.  986. 

70  Furnas  v.  Durgin,  119  Mass.  500,  20  Am.  Rep,  341;  Mclnteer  V. 
360 


CH.    XI.]  RIGHTS   OF   MORTGAGOR   AND   MORTGAGEE.  §    253 

agreement  of  that  kind,  it  is  clear  that  the  mortgagor  may 
enforce  it,  and  recover  of  his  assignee,  if  he,  the  mortgagor, 
has  been  compelled  to  pay  the  mortgage  debt;  but  how  far, 
and  whether  if  at  all,  the  mortgagee  may  take  advantage  of 
this  agreement  to  which  he  is  not  a  privy,  and  sue  the  as- 
signee upon  it,  is  a  question  upon  which  the  authorities  are 
not  agreed.     The  better  opinion  seems  to  be  that,  though  the 

Shaw,  6  Allen  85;  Strong  r.  Converse,  8  Allen  559;  Pike  v.  Goodnow, 
12  Allen  474;  Braman  v.  Dowse,  12  Cush.  227;  Belmont  v.  Conian,  22 
N.  Y.  438;  Vrooman  r.  Turner,  69  N.  Y.  286,  25  Am.  Rep.  195;  Shep- 
herd V.  May,  115  U.  S.  505;  Seheppelman  v.  Fuerth,  87  Mo.  351;  Gage 
V.  Jenkinson,  58  Mich.  161;  Gerdine  t*.  Menage,  41  Minn.  417;  Brown  V. 
South  Boston  Sav.  Bk.,  148  Mass.  300;  Searing  v.  Benton,  41  Kan.  758. 
A  covenant  to  assume  a  mortgage  is  equivalent  to  a  covenant  to  pay  it. 
Schley  v.  Fryer,  100  N.  Y.  71;  Ludington  v.  Low,  53  N.  Y.  Super.  391; 
Rice  i:  Sanders  (Mass.),  24  N.  E.  Rep.  1079;  Moran  V.  Pellifant,  28  111. 
App.  278;  N.  Y.  Life  Ins.  Co.  v.  Aitkin,  57  N.  Y.  Super.  42.  But  see 
contra.  Chancellor  v.  Traphagen,  41  N.  J.  Eq.  369.  But  if  a  deed  only 
contains  a  clause  to  the  effect  that  the  conveyance  is  subject  to  a  mort- 
gage, it  will  not  impose  upon  the  grantee  any  personal  liability  for  the 
debt.  Trotter  V.  Hughes,  12  N.  Y.  74 ;  Tillotson  v.  Boyd,  4  Sandf.  Ch. 
516;  Weed  Sewing  Machine  Co.  v.  Emerson,  115  Mass.  554;  Fiske  V. 
Tolman,  124  Mass.  254,  26  Am.  Rep.  659;  Baumgardner  v.  Allen,  6 
Munf.  439;  Dunn  v.  Rodgers,  43  111.  260;  Fowler  v.  Fay,  62  111.  375; 
Chilton  17.  Brooks  (Ind.),  20  N.  E.  Rep.  125;  Brown  f.  Stillman,  43 
Minn.  126;  Gordon  v.  Avery,  105  N.  C.  532.  Nor  where  are  added  the 
words,  the  said  mortgage  debt  "  forms  part  of  the  consideration,  and  is 
deducted  therefrom."  Equitable  Life  Ins.  Co.  V.  Bostwick,  100  N.  Y. 
628.  In  such  a  case,  the  only  effect  produced  is  that  the  grantee  cannot 
impeach  the  validity  of  the  mortgage.  Ritter  v.  Phillips,  53  N.  Y.  586; 
Gr€en  v.  Turner,  38  Iowa  112;  Perry  v.  Kearns,  13  Iowa  174;  Sweet- 
zer  V.  Jones,  35  Vt.  317.  But  it  will  not  qualify  a  general  covenant 
against  incumbrances,  so  as  to  relieve  the  mortgagor  from  liability, 
unless  the  mortgage  is  expressly  excepted  from  the  operation  of  the 
covenant.  Spurr  r.  Andrew,  6  Allen  420;  Estabrook  v.  Smith,  6  Gray 
592;  Harlow  V.  Thomas,  15  Pick.  66.  But  the  obligation  of  the  pur- 
chaser, who  agrees  to  pay  the  mortgage  debt  is  so  far  a  personal  and 
independent  obligation,  that  payments  or  acknowledgments  by  him, 
will  not  toll  the  rtatute  of  limitations  as  to  the  mortgagor.  Regan  v. 
Williams.  185  Mo.  620,  84  S.  W.  Rep.  959;  Zoll  v.  Carnahan,  83  Mo. 
43 ;  Cottrell  r.  Shepard  ( Wis. ) ,  57  N.  W.  Rep.  984 ;  Ins.  Co.  v.  Elwell, 
70  N.  W.  Rep.  335 ;  Trustees  Old  Almshouse  v.  Smith,  52  Conn.  434. 

361 


§    253  RIGHTS   OP   MORTGAGOR   AND    MORTGAGEE.         [PART   I, 

mortgagee  cannot  maintain  an  action  at  law  upon  the  cove- 
nant for  the  want  of  privity  between  him  and  the  assignee, 
he  will  in  equity  be  subrogated  to  the  rights  of  the  mortgagor 
in  the  agreement,  and  can  in  equity  enforce  its  performance 
in  his  own  behalf  J^  He  could  also,  in  those  States  where 
choscs  in  action  may  be  levied  upon  and  sold  under  execution, 
pursue  that  remedy  in  a  court  of  law.  So  completely  vested 
is  the  right  of  the  mortgagee  to  sue  the  purchaser  of  the  land 
on  his  agreement  to  assume  the  payment  of  the  mortgage, 
that  a  release  of  the  purchaser  from  the  obligation  by  the 

71  Lawrence  v.  Fox,  20  N.  Y.  268 ;  Garnsey  v.  Rogers,  47  X.  Y.  223 ; 
Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y.  256;  Campbell  v.  Smith,  71  N.  Y. 
26,  27  Am.  Rep.  5;  Crawford  V.  Edwards,  33  Mich.  354;  Wilson  V. 
King,  23  N.  J.  150;  Lennig's  Estate,  52  Pa.  St,  138;  Fitzgerald  v. 
Barker,  85  Mo.  13;  Kelso  V.  Fleming,  104  Ind.  180;  Palmetcr  V.  Carey, 
03  \Vi.s.  426;  Keller  V.  Ashford,  133  U.  S.  610;  Cooper  V.  Foss,  15  Neb. 
516;  Shamp  V.  Meyer,  20  Neb.  223;  Keedle  V.  Flack  (Neb.),  44  N.  W. 
Rep.  34.  Contra,  Mellon  v.  Whipple,  1  Gray  317;  Drury  v.  Tremont 
Improvement  Co.,  13  Allen  168;  Marsh  V.  Pike,  10  Paige  Ch.  505;  s.  e. 

I  Sandf.  Ch.  210;  Carpenter  v.  Koons,  20  Pa.  St.  222.  And  the  obliga 
tion  is  binding  upon  the  grantee,  although  he  does  not  sign  the  deed 
By  his  acceptance  of  the  deed  he  undertakes  to  perform  all  the  condi 
tions  and  obligations  incident  thereto.  Crawford  v.  Edwards,  33  Mich 
354;  Spaulding  V.  Hallenbeck,  35  N.  Y.  204;  Huyler  v.  Atwood,  26  N 
J.  Eq.  504;  Atlantic  Dock  Co.  v.  Leavitt,  54  N.  Y.  35.  And  his  igno- 
rance of  the  fact  that  the  deed  contains  such  a  stipulation  is  no  de- 
fense, if  the  transaction  is  free  from  the  taint  of  fraud.  Keller  V.  Ash- 
ford, 133  U.  S.  610;  Moran  v.  Pellifant,  28  111.  App.  278.  The  state- 
jnent  in  the  text,  that  the  mortgagee  cannot  maintain  an  action  at  law 
on  the  purchaser's  promise  to  pay  the  mortgage  debt,  is  not  in  accord 
with  the  majority  of  the  decisions.  It  involves  the  question  whether  a 
stranger  can  maintain  an  action  on  a  contract,  which  was  made  to 
another  for  his  benefit;  and  upon  this  general  question,  the  authorities 
are  not  agreed.  The  author  believes  that  there  is  not  a  sufficient  privity 
of  contract  to  support  an  action  at  law  upon  the  promise  to  pay,  unless 
the  contract  creates  a  bnilment.  If  money  be  given  to  A.  to  hand  to  B., 
it  is  a  mandatum,  and  E.  may  recover  it  from  A.;  B.  is  a  quasi  cestui 
que  trust.  But  if  A.  promises  B.  to  pay  a  sum  of  money  to  C,  in  sat- 
isfaction of  a  debt  owing  by  A.  to  B.,  there  is  no  bailment,  and,  there- 
fore, no  obligation  to  C.     But  see  the  author's  article  on  the  subject  in 

II  Cent.  L.  J.  161.  See  to.  the  same  effect  Willard  v.  Wood,  4  Mackey 
538;  8.  c.  135  U.  S.  309;  Keller  v.  Ashford,  133  U.  S.  610. 

362 


CH.  XI.]    RIGHTS  OF  MORTGAGOR  AND  MORTGAGEE.      §  254 

mortgagor  has  been  held  to  have  no  effect  as  to  the  mortga- 
gee's right  of  action."-  Likewise,  so  independent  of  the  mort- 
gagor's liability  is  the  grantee's  liability  to  the  mortgagee  on 
his  covenant  to  assume  or  pay  the  mortgage  debt,  that  such 
a  grantee  cannot  escape  the  liability  thereby  assumed  by 
questioning  the  validity  of  the  mortgage  or  the  mortgage 
debt.'^  And  where,  by  mistake,  a  mortgage  did  not  include 
within  the  description  one  tract  of  land,  which  the  mortgagor 
subsequently  sold  under  an  agreement  that  the  purchaser 
shall  assume  the  payment  of  the  mortgage  debt,  it  was  held 
that  the  lien  of  the  mortgage  attached  to  the  land  in  the 
hands  of  the  grantee.^*  On  the  other  hand,  the  obligation  of 
the  mortgagor  on  his  note  or  bond  for  the  mortgage  debt  is 
not  in  any  wise  affected  by  the  purchaser's  agreement  to  as- 
sume the  payment  of  the  mortgage  debt,  unless  the  mortgagee 
has  consented  to  the  novation.^"^ 

§  254.  Effect  of  payment  or  tender  of  payment. —  If  pay- 
ment or  tender  of  payment,  by  parties  having  the  right  to 
redeem,  be  made  when  the  debt  falls  due,  it  works  a  complete 
discharge  of  the  mortgage,  divests  the  mortgagee  of  all  his 
rights  and  remits  to  the  mortgagor  all  his  rights  at  common 
law,  as  fully  as  if  there  had  been  no  mortgage.  And  if  the 
mortgagee  is  in  possession,  ejectment  will  lie,  and  he  will  be 
ousted  without  any  formal  release  or  discharge  of  the  mort- 
gage.'*    A  formal  discharge  of  the  mortgage  would,  however, 

72  Bay  V.  Williams,  112  111.  91,  54  Am.  Rep.  209;  Gifford  v.  Corrigan, 
117  N.  Y.  257. 

73  Altman  v.  Banholzer.  36  Minn.  57. 
1*  Sidwell  V.  Wheaton,  1 14  111.  267. 

7»  Shepherd  v.  May,  115  U.  S.  .505;  Union  Mut.  L.  Ins.  Co.  v.  Han- 
ford,  27  Fed.  Rep.  588;  Kelso  V.  Fleming,  104  Ind.  180;  Hutchinson  v. 
Wells,  67  Iowa  430;  Chilton  r.  Brooks  (Ind.),  20  N.  E.  Rep.  125;  Sear- 
ing V.  Benton,  41  Kan.  758. 

76^^'hitcomb  r.  Simpson,  39  Me.  21;  Camp  v.  Smith,  5  CWnn.  80; 
Erskine  v.  Townsend.  2  Mass.  495;  Holman  v.  Bailey.  3  Mete.  55;  Doody 
V.  Pierce,  9  Allen  141;  Stewart  t*.  Crosby,  50  Me.  130;  Currier  r.  Gale, 
9  Allen   622;  Maynard  v.  Hunt,  5  Pick.  240;   Munson  v.  Munson,   30 

363 


§   254  RIGHTS  OF   MORTGAGOR   AND   MORTGAGEE.         [PART  I. 

be  required,  if  the  mortgage  contained  a  clause  which  pro- 
vides for  a  conveyance  when  the  condition  is  performed.^' 
This  will  be  found  to  be  the  general  rule  in  all  the  States. 
But  where  the  tender  or  payment  is  made  after  the  condition 
has  been  broken,  the  same  variance  of  opinion  is  encountered 
as  in  other  branches  of  the  law  of  mortgages,  where  the  com- 
mon-law and  lien  theories  conflict.  At  common  law,  since  the 
default  made  the  estate  absolute  in  the  mortgagee,  and  left  in 
the  mortgagor  only  the  equity  of  redemption,  the  mere  pay- 
ment or  tender  of  payment  will  not  revest  the  legal  title  in 
the  mortgagor.  A  formal  discharge  is  requisite,  and  if  the 
mortgagee  refuses  to  make  it,  the  mortgagor's  only  remedy  is 
in  equity,  by  a  proceeding  to  redeem  the  property.  He  cannot 
maintain  an  action  of  ejectment,  for  he  has  no  legal  estate.^* 

Conn.  425.  But  the  payment  cannot  be  enforced  by  either  party  before 
the  debt  falls  due,  and  the  mortgagee  may  refuse  to  accept  it.  But  if 
the  debt  and  interest  up  to  the  fixed  day  of  payment  be  tendered,  it 
will  have  the  same  eflFect  upon  the  mortgage  as  if  tendered  on  the 
proper  day.  Burgoyne  V.  Spurling,  Cro.  Car.  283;  Brown  v.  Cole,  14 
Sim.  427;  Scott  v.  Frink,  53  Barb.  533;  Abbe  v.  Goodwin,  7  Conn.  377; 
Hoyle  V.  Cazabat,  25  La.  An.  438.  And  although  nothing  but  actual 
payment  will  extinguish  the  debt,  a  simple  tender  of  payment  will  dis- 
charge the  mortgage,  and  prevent  a  subsequent  foreclosure.  Co.  Lit. 
299  b;  Martindale  v.  Smith,  1  Q.  B.  389;  Willard  v.  Harvey,  5  N.  H. 
252;  Kortright  v.  Cady,  21  N.  Y.  343;  Darling  V.  Chapman,  14  Mass. 
101;  Maynard  r.  Hunt,  supra;  Crain  v.  McGoon,  86  111.  431,  29  Am. 
Rep.  37.  Since  a  tender  of  the  sum  due  on  a  mortgage,  re-vests  the 
title  in  the  mortgagor,  he  can  maintain  ejectment  against  a  subsequent 
purchaser.    Leet  V.  Armbruster,  143  Cal.  063,  77  Pac.  Rep.  653. 

7T  See  cases  cited  in  preceding  note   (76). 

78  Smith  V.  Kelly,  27  Me.  237;  Stewart  V.  Crosby,  50  Me.  130;  How- 
ard V.  How,  3  Mete.  548;  Holman  V.  Bailey,  lb.  55;  Howe  r.  Lewis,  14 
Pick.  329;  Grover  v.  Flye,  5  Allen  543;  Pillsbury  V.  Smyth,  25  Me. 
427;  Dyer  v.  Toothaker,  51  Me.  380;  Cross  v.  Robinson,  21  Conn.  379. 
Technically,  this  is  true.  But  even  in  those  States,  proof  of  payment 
or  tender  of  payment  will  prevent  the  enforcement  of  the  mortgage 
against  the  mortgagor.  Wade  v.  Howard,  11  Pick.  289;  Breckenridge 
V.  Brooks,  2  A.  K.  Marsh  337;  Slayton  v.  Mclntire,  11  Gray  271;  Gray 
*'.  Jenks,  3  Mason  520;  Williams  v.  Thurlow,  31  Me.  392;  Faulkner  V. 
Breckenbrough,  4  Rand.  245;  Pike  V.  Goodnow,  12  Allen  472;  Arnot  V. 
Post,  6  Hill.  65. 
364 


CH.  XI.]    RIGHTS  OF  MORTGAGOR  AND  MORTGAGEE.      §  255 

In  those  States  where  the  mortgage  is  regarded  as  a  lien,  even 
after  condition  broken,  a  tender  of  payment  as  well  as  pay- 
ment will  operate  as  a  discharge  or  extinguishment  of  the 
mortgage  both  before  and  after  the  default.  And  if  the 
mortgagee  is  in  possession,  an  ejectment  suit  may  be  instituted 
against  him.  The  mortgagor  is  not  obliged  to  resort  to  equity 
to  obtain  a  formal  cancellation  of  the  mortgage.'"  If  there 
are  two  or  more  mortgagees,  payment  to  one  of  them,  unless 
it  is  made  with  the  consent  of  the  others,  will  not  affect  the 
rights  of  the  others  in  the  mortgage.*" 

§  255.  Who  may  redeem. —  If  the  mortgage  debt  is  actually 
paid,  the  payment  will,  as  against  the  mortgagee,  extinguish 
the  mortgage  and  the  mortgagee's  rights  thereunder,  who- 
ever pays  the  debt.  But  in  order  that  a  tender  of  payment 
may  have  that  effect,  it  must  be  made  by  some  one  who  is 
entitled  to  redeem.^^  Any  one,  who  has  an  interest  in  the 
mortgaged  premises,  claiming  under  the  mortgagor,  has  this 
right.  And  this  is  the  case,  whether  his  interest  be  legal 
or  equitable,  an  estate  or  a  lien.  The  only  requisite  is  a 
privity  of  estate  with  the  mortgagor.  Among  such  may  be 
enumerated  grantees,  subsequent  incumbrancers,  whether 
they  be  junior  mortgagees  or  judgment-creditors,  heirs,  dev- 
isees, personal  representatives,  tenants  for  years,  the  hus- 
band for  his  curtesy,  and  the  widow  for  her  dower  or  join- 

T»  Jackson  v.  Stackhouse,  1  Cow.  122;  Farmers'  Ins.,  etc.,  Co.,  v. 
Edwards,  26  Wend.  541;  Runyan  v.  Mersereau,  11  Johns.  538;  Den  V. 
Spinning,  1  Halst.  471;  Shields  v.  Lozear,  34  N.  J.  L.  496;  Rickett  V. 
Madeira,  1  Rawle  325;  Paxon  V.  Paul,  3  Har.  &  McH.  399;  Furbish  V. 
Goodwin,  25  N.  H.  425;  Howard  v.  Gresham,  27  Ga.  347;  Champney  v. 
Coope,  32  N.  H.  543;  Griffin  v.  Lovell,  42  Miss.  402;  Holt  v.  Rees,  44 
III.  30;  Armitage  V.  Winkliffe,  12  B.  Mon.  488;  Briggs  i'.  Seymour,  17 
Wis.  255;  Fisher  v.  Otis,  3  Chand.  (Wis.)  83;  Grain  v.  McGoon,  86  111. 
431,  29  Am.  Rep.  37;  Leet  v.  Armbruster,  143  Cal.  663,  77  Pac.  Rep. 
653. 

80  Maddox  i\  Bramlett,  84  Ga.  84. 

siMcCulIa  V.  Beadleston  (R.  I.),  20  Ail.  Rep.  U. 

365 


§    255  RIGHTS   OP   MORTGAGOR    AND    MORTGAGEE.  [pART   I. 

ture.*^  And  in  tendering  payment  the  mortgagee  or  as- 
signee may  be  required  to  deliver  up  the  notes  or  other  evi- 
dences of  indebtedness  before  actual  payment,  such  a  demand 
would  not  affect  the  effectiveness  of  the  tender.^^  But,  in 
order  that  tender  of  payment  may  have  the  effect  of  ex- 
tinguishing the  mortgage,  the  whole  debt  must  be  tendered, 
together  with  all  the  interest  and  costs  that  have  accrued 
thereon  to  the  date  of  the  tender.  Therefore,  if  the  widow, 
for  example,  desires  to  redeem  for  the  preservation  of  her 
dower  right,  she  must  offer  to  pay  the  whole  debt.  The 
mortgagee  can  refuse  to  accept  only  her  share  of  it.     And 

82Lomax  v.  Bird,  1  Vern.  182;  Gibson  V.  Crehore,  5  Pick.  146;  Grant 
r.  Duane,  9  Johns.  591;  Ex  parte  \Yil]ar(l,  5  Wend.  94;  Boarman  r. 
Catlett,  13  Smed.  &  M.  149;  Moore  v.  Beasom,  44  N.  H.  21,5;  Fray  V. 
Drew,  11  Jur.  (n.  s.)  130;  Burnett  V.  Dennistor,  5  Johns.  Ch.  35; 
Thompson  r.  Chandler,  7  Greenl.  377 ;  Bacon  v.  Bowdoin,  22  Pick.  401 ; 
Goodman  v.  White,  26  Conn.  317;  Newhall  v.  Savings  Bank,  101  Mass. 
431;  Rogers  r.  Myers,  68  111.  92;  Kimmel  r.  Willard,  1  Dongl.  (Mich.) 
217;  Wiley  r.  Ewing,  47  Ala.  418;  Calkins  v.  Munsell,  2  Root,  333; 
McLaughlin  v.  Curts,  27  Wis.  644;  Hamilton  V.  Dobbs,  19  N.  J.  Eq. 
227;  Hitt  r.  Holiday,  2  Litt.  332;  Van  Buren  v.  Olmstead,  5  Paige 
Ch.  9;  Stainback  v.  Geddy,  1  Dev.  &  B.  Eq.  479;  Chandler  r.  Dyer, 
37  Vt.  345;  Bridgeport  V.  Blinn,  43  Conn.  274;  Kingsbury  v.  Buckner, 
70  111.  514;  Casserly  v.  Witherbee,  119  N.  Y.  522;  Buchanan  V. 
Reid,  43  Minn.  172;  Sanford  V.  Kane,  24  111.  App.  504;  s.  c.  reversed, 
127  111.  591;  Ryan  v.  Newcomb,  23  111.  App.  113;  s.  c.  reversed,  125 
111.  91;  Willard  v.  Finnegan,  43  Minn.  476;  Barr  v.  Van  Alstine,  120 
Ind.  .590.  A  tenant  for  years  (Kebabian  v.  Shinkle,  26  R.  I.  505,  59 
Atl.  Rep.  743),  attaching  creditors  (Whitney  f.  Mfg.  Co.,  187  Mass. 
557,  73  N.  E.  Rep.  663)  and  subsequent  lienholders,  are  all  entitled 
to  redeem.  Dickenson  v.  Duckworth  (Ark.  1905),  85  S.  W.  Rep.  82. 
The  purchaser  of  standing  trees,  subject  to  a  mortgage,  is  entitled 
to  redeem  as  to  such  trees,  the  same  as  the  mortgagor  could  have  done. 
Rothschild  r.  Lumber  Co.,  139  Ala.  571,  36  So.  Rep.  785;  Heflin  V. 
Bingham,  56  Ala.  566,  28  Amer.  Rep.  776. 

83  Stiger  f.  Bent,  111  111.  328.  A  right  of  redemption  cannot  be  ex- 
tended beyond  that  which  existed  when  the  mortgage  was  executed. 
Barnitz  v.  Beverly,  163  U.  S.  118,  41  L.  Ed.  93.  And  see,  as  to  effect 
of  act  forfeiting  title  of  mortgagee  for  not  recording  deed  of  fore- 
closure, as  required  by  Illinois  statute  of  1872,  Bradley  v.  Lightcap, 
195  U.  S.  2-4,  49  L.  Ed.  65. 
366 


CH.    XI.]  RIGHTS   OP   MORTGAGOR   AND   MORTGAGEE.  §    256 

this  is  true  of  any  one  who  owns  only  a  portion  of  the  mort- 
gaged premises.'* 

§  256.  What  acts  extinguish  the  mortgage. —  No  acts,  which 
do  not  amount  to  a  payment  of  the  debt  or  a  release  of  the 
mortgage,  will  cause  an  extinguishment  of  the  mortgage.  A 
mere  change  in  the  form  of  the  debt — as  the  substitution  of 
a  bond  for  a  note,  or  the  execution  of  a  new  note  in  the 
place  of  the  old  one — will  not  have  that  effect,  unless  such 
substitution  or  change  is  made  with  the  intention  that  the 
new  instrument  of  indebtedness  shall  be  accepted  as  an  ac- 
tual pajTnent  of  the  old  debt.  And  this  has  been  held  to  be 
the  case  where  a  note  for  a  smaller  amount  has  been  substi- 
tuted. When  and  how  the  intention  of  payment  can  be 
shown  in  such  a  case  is  a  very  difficult  matter  to  explain 
by  any  concise  and  comprehensive  statement.  It  depends 
upon  the  facts  of  each  case,  and  is  itself  a  question  of  fact, 
whether  the  person  making  the  change  intended  it  to  operate 
as  a  satisfaction  of  the  old  debt.^°  The  mortgagee  may,  of 
course,  release  any  part  of  the  mortgaged  property  from  the 
mortgage  lien.     This  is  a  very  common  transaction,  where 

84McCabe  v.  Bellows,  7  Gray  148;  McCabe  v.  Swap,  14^ Allen  191; 
Gibson  v.  Crehore,  5  Pick.  14G;  Norris  r.  Moulton,  34  X.  H.  392; 
Downer  v.  Wilson,  38  Vt.  1 ;  Seymour  v.  Davis,  3.5  Conn.  264 ;  Douglass 
V.  Bishop,  27  Iowa,  216;  Lamb  v.  Montague,  112  Mass.  352;  Franklin 
V.  Gorham,  2  Day,  142;  Hunter  v.  Dennis,  112  111.  568;  Watts  r.  Bon- 
ner, 66  Mich.  629;  Detweiler  V.  Breckenkamp,  83  Mo.  45.  Where  a  note 
is  payable  on  demand,  a  suit  to  redeem  will  lie  at  any  time  before  fore- 
closure.    Kebabian  r.  Shinkle,  26  R.  I.  505,  .59  Atl.  Rep.  743. 

soParkhurst  r.  Cummings,  56  Me.  159;  Fowler  v.  Bush,  21  Pick. 
230;  Grafton  Bk.  v.  Foster,  11  Gray,  265;  Mitchell  r.  Clark,  35  Vt. 
104;  Boxheimer  v.  Gunn,  24  Mich.  376;  Hadlock  r.  Bullfinch,  31  Me. 
246;  Euston  v.  Friday,  2  Rich.  Eq.  427;  Bank  v.  Rose,  1  Strobh.  Eq. 
257;  BrinckerhoflT  v.  Lansing,  4  Johns.  Ch.  65;  Barker  r.  Bell,  37  Ala. 
359;  Vogle  V.  Ripper,  34  111.  106;  Rogers  v.  Traders'  Ins.  Co.,  6  Paige, 
Ch.  583;  Jordan  V.  Smith,  30  Ohio,  500;  Citizen's  Bank  V.  Dayton.  116 
111.  257;  Reid  r.  Abernethy,  77  Iowa,  438;  Burson  v.  Andes,  83  Va, 
445.  A  tender  of  the  amount  due  is  held  to  extinguish  the  mortgage, 
in  California.     Leet  v.  Armbruster,  143  Cal.  663,  77  Pac.  Rep.  653. 

367 


§    257  RIGHTS   OF    MORTGAGOR   AND   MORTGAGEE.  [PART   I. 

the  mortgagor  sells  a  part  of  such  property.**^  And  the  par- 
ties may,  and  often  do,  stipulate  for  such  partial  release, 
on  payment  of  installments  on  the  debt.*^  It  is  doubtful 
what  is  the  effect  of  a  substitution  of  a  new  mortgage.  If 
a  new  note  and  mortgage  is  given  for  the  balance  after  part 
payment,  the  old  mortgage  is  held  to  be  completely  extin- 
guished, and  the  new  mortgage  cannot  claim  priority  over 
junior  incumbrances  already  recorded.®®  On  the  other  hand, 
it  has  been  held  that  the  substituted  mortgage  may  take  the 
place  of  the  original  mortgage,  on  the  ground  that  there  had 
not  in  that  case  been  any  absolute  payment  or  extinguish- 
ment of  the  original  debt.** 

§  257.  The  effect  of  a  discharge. —  Where  the  mortgage  is 
discharged  by  the  mortgagor's  payment  of  the  debt,  it  is 
extinguished  altogether;  particularly,  where  there  are  junior 
incumbrances.  The  mortgagor  cannot  keep  it  alive,  even 
though  he  goes  through  the  formality  of  an  assignment.  A 
merger  results  from  the  union  of  the  two  interests  in  one 
person.**     This  is,  however,  not  the  rule  where  the  assignee 

86  Werner  v.  Tuch,  .52  Hun  269;  Vawter  v.  Crafts,  41  Minn.  14; 
Boone  V.  Clarke,  129  111.  4G6.  By  statute,  in  Missouri,  on  payment  of 
one  or  more  notes  secured  by  mortgage,  the  Recorder  is  authorized  to 
cancel  the  debt,  pro  tan  to  and  to  release  any  part  of  the  mortgaged 
premises.  See  Laws  ]\Iissouri,  1897,  p.  203;  R.  S.  Mo.  1899,  Sees. 
4360,   4361. 

8T  Vawter  v.  Crafts,  41  Minn.  14;  McComber  v.  Mills,  80  Cal.  Ill; 
Boone  v.  Clark,  129  111.  466;  Werner  V.  Tuch,  52  Hun,  269. 

88  Smith  V.  Bynum,  92  N.  C.  108 ;  Edwards  v.  Thorn,  25  Fla.  222. 

89  Clark  V.  Bullard,  66  Iowa,  747 ;  Council  Bluffs  Lodge  v.  Bullards, 
67  Iowa,  674;  Van  Duyne  v.  Shaun,  41  N.  J.  Eq.  311,  reversing  s.  c. 
39  N.  J,  Eq.  6;  Ponder  v.  Ritzinger,  102  Ind.  571;  s.  c.  119  Ind.  597. 

ooWadsworth  V.  Williams,  100  Mass.  126;  Strong  v.  Converse,  8 
Allen,  559;  Wade  V.  Beldmeir,  40  Mo.  486;  McGiven  v.  Wheelock,  7 
Barb.  22;  Mead  V.  York,  6  N.  Y.  449;  Thomas'  Appeal,  30  Pa.  St. 
378;  Richard  r.  Talbird,  Rich.  Ch.  158;  Robinson  v.  Urquhart,  12  N.' 
J.  Eq.  515;  Perkins  r.  Steame,  23  Texas,  561;  Champney  v.  Coope, 
32  N.  Y.  543;  Bowman  v.  Manter,  33  N.  H.  530;  Large  V.  Van  Doren, 
14  N.  J.  Eq.  208;  Kremerer  v.  Bloom,  65  Iowa,  363;  Shipley  v.  Fox, 
368 


CH.    XI.]  RIGHTS   OP    MORTGAGOR   AND    MORTGAGEE.  §    257 

of  the  mortgagor  has  assumed  the  payment  of  the  debt. 
Payment  by  the  mortgagor  in  that  case  operates  as  an  equi- 
table assignment.^^  And  so,  also,  will  there  be  a  merger, 
where  the  payment  is  made  by  an  assignee  of  the  mort- 
gagor who  has  assumed  the  payment  of  the  debt."'-  It  has, 
also,  been  held  that  if  there  are  no  junior  incumbrancers,  a 
satisfied  mortgage  may  be  revived,  and  be  made  a  good  and 
effectual  security  for  a  new  debt  between  new  parties.  But 
the  position  is  not  without  doubt  as  to  its  soiuidness.®'  And 
it  is  certainly  not  recognized  as  valid  against  junior  incum- 
brancers."* If  the  mortgage  has  been  delivered  up  and  can- 
celled through  fraud,  accident  or  mistake,  the  court  of  iHiuity 

69  Md.  572;  Eaton  v.  Simonds,  14  Pick.  98;  Crafts  v.  Crafts,  13  Gray, 
360;  Cherry  V.  Monro,  2  Barb.  Cli.  618;  Brown  r.  Laphani,  3  Ciish. 
551,  554;  Wedge  t\  Moore,  6  Id.  8;  Robinson  r.  Urqiihart,  1  Beasl. 
515;  Comm.  V.  Chesapeake,  etc.,  Co.,  32  Mod.  501:  Kilborn  v.  Rob- 
bins,  8  Allen,  466,  471;  Bemis  V.  Call,  10  Id.  512. 

"1  Baker  v.  N.  W.  Guaranty  Loan  Co.,  36  Minn.;  Funk  r.  McReynold, 

33  III.  481,  495;  Halsey  r.  Reed,  9  N.  J.  Eq.  446;   Kinnear  v.  Lowell. 

34  Me.  299;  Stillman  r.  Stillman,  21  N.  J.  Eq.  126;  Juniel  v.  Juniel, 
7  Paige,  591 ;  Cox  f.  Wheeler,  7  Id.  248,  257. 

»2Mickles  V.  Townsend,  18  N.  Y.  575;  Stoddard  v.  Rotton,  5  Bosw. 
378;  Butler  v.  Seward,  10  Allen,  466;  Mickles  V.  Dillaye,  15  Hun, 
296;  Pike  v.  Goodnow,  12  Allen,  472;  Weed,  etc.,  Co.  v.  Emerson,  115 
Mass.  554;  Fowler  v.  Fay,  62  111.  375;  Fitch  r.  Cothcal.  2  Sandf.  Ch. 
29;  Lilly  r.  Palmer,  51  111.  331;  Fry  r.  Vanderhoof.  15  Wis.  397. 
See  Kellogg  r.  Ames,  41  N.  Y.  250.  A  conveyance  by  either  the 
mortgagee  or  his  assignee  to  the  mortgagor,  or  his  assignee,  discharges 
the  mortgage.     Nickell  v.  Tracy,  91  N.  Y.  S.  287:  100  App.  Div.  80. 

83  Marvin  v.  Vedder,  5  Cow.  671;  Walker  r.  Snediker.  I  Hoffm.  Ch. 
145;  Star  r.  Ellis,  6  Johns.  Ch.  392;  Johnson  v.  Anderson.  30  Ark. 
745;  Hurser  v.  Anderson,  4  Edw.  Ch.  17;  International  Bk.  r.  Bowen, 
80  111.  541;  Jordan  v.  Furlong,  19  Ohio  St.  89.  And  it  seems  the  ob- 
jection to  this  principle  is  greatly  lessened,  if  not  altogether  removed, 
if  the  assignment  is  made  at  the  mortgagor's  request  to  a  third 
person.  Although  lifeless  in  this  third  person's  hands,  it  will  be  a 
good  and  binding  security  when  assigned  to  a  new  creditor  upon  a  new 
or  different  consideration.  Bolles  r.  Wade,  4  N.  J.  Eq.  458;  Shoddy 
V.  Gervan,  113  Mass.  378;  Hoy  v.  Bramhall,  11  N.  J.  Eq.  563;  Gould- 
ing  r.  Bunster,  8  Wis.  513;  Wilson  r.  Schoenlaub,  99  Mo.  96. 

»«Man  V.  Elkins,  10  N,  Y.  S.  488. 

24  369 


§   258  RIGHTS   OF   MORTGAGOR   AND   MORTGAGEE.         [PART   I. 

will  revive  it  and  enforce  it,  at  least  against  the  mortgagor 
and  all  parties  claiming  under  him,  who  have  notice  of  the 
iKjuity.  And  a  subsequent  purchaser  will  be  bound  by  the 
equity  if  the  mortgage  has  not  been  satisfied  on  the  records; 
for  he  is  compelled  to  take  notice  of  that  fact,  and  it  is  suffi- 
cient to  put  him  on  his  inquiry.®'' 

§  258.  When  payment  will  work  an  assignment. —  Payment 
of  the  debt  by  the  mortgagor,  as  has  been  explained,  always 
discharges  the  mortgage,  though  the  satisfaction  by  the  mort- 
gagee be  in  form  an  assignment  to  himself  or  to  one  in  trust 
for  him.*®  And  where  the  debt  is  paid  by  a  volunteer  —  a 
stranger  who  is  not  interested  in  the  mortgaged  premises  — 

95  Grimes  v.  Kimball,  4  Allen,  578 ; .  Joslyn  v.  Wyman,  5  Allen,  63 ; 
Howe  V.  Wilder,  11  Gray,  267;  Lawrence  v.  Stratton,  6  Gush.  163; 
Stover  V.  Wood,  26  N.  J.  Eq.  417;  Fassett  V.  Smith,  23  N.  Y.  252;  Mid- 
dlesex V.  Thomas,  20  N.  J.  Eq.  39;  De  Yampert  v.  Brown,  28  Ark, 
166;  Stanley  v.  Valentine,  79  111.  544;  Robinson  V.  Sampson,  23  Me. 
388.  And  such  relief  will  also  be  afforded  where  mortgage  has  been 
satisfied,  instead  of  being  assigned.  Dudley  V.  Bergen,  23  N.  J.  Eq. 
397;  Champlin  v.  Laytin,  18  Wend.  407;  Russell  v.  Mixer,  42  Cal. 
475;  Bruce  v.  Bonney,  12  Gray,  107;  Hughes  v.  Torrence,  111  Pa.  St. 
611;  Charleston  City  Coimcil  V.  Ryan,  23  S.  C.  339;  53  Am.  Rep.  713; 
Crippen  v.  Chappel,  35  Kan.  495;  Stiger  v.  Bent,  111  111.  328.  But  it 
must  be  a  mistake  of  fact.  If  the  satisfaction  is  obtained  through  a 
mistake  of  law,  no  relief  will  be  granted,  unless  from  the  tender  age 
or  weak  mind  of  the  person  injured,  the  charge  of  imdue  influence 
may  be  established.  Peters  v.  Florence,  38  Pa.  St.  194;  Hampton  f. 
Nicholson,  23  N.  J.  Eq.  423;  Smith  v.  Smith,  15  N.  H.  55.  A  mortgage 
executed  or  satisfied  under  duress,  by  threats  of  a  prosecution,  is  void 
and  can  be  cancelled,  in  equity.  Gray  v.  Freeman  (Tex.  1905),  84  S. 
W.  Rep.  1105.  See,  also,  Galusha  V.  Sherman,  81  N.  W.  Rep.  495,  47 
L.  R.  A.  417;  Landa  V.  Obert,  78  Tex.  33,  14  S.  W.  Rep.  297;  Bank 
r.  Sargent  (Neb.),  91  N.  W.  Rep.  595;  Bond  Ass'n  v.  Klee  (Neb.), 
97  N.  W.  Rep.  476;  Cribs  v.  Soule  (Mich.),  49  N.  W.  Rep.  587,  24 
Am.  St.  Rep.  166;  Bryant  V.  Peck,  154  Mass.  460,  28  N.  E.  Rep. 
678;  Schauerner  V.  Lissauer  (N.  Y.),  18  N.  E.  Rep.  741;  Earle  r. 
Hosiery  Co.,  36  N.  J.  Eq.  192;  Adams  V.  Bank,  23  N.  E.  Rep.  7,  15 
Am.  St.  Rep.  447,  6  L.  R.  A.  491;  Bank  v.  Kusworm  (Wis.),  53  N. 
W.  Rep.  564,  43  Am.  St.  Rep.  880,  26  L.  R.  A.  48. 

86  See   ante,   Sees.   254,   257. 
370 


CH.   XI.]  RIGHTS   OF   MORTGAGOR   AND    MORTGAGEE.  §    258 

the  mortgage  will  be  discharged  and  extinguished,  unless  an 
assignment  has  actually  been  made  to  him.  He  cannot  set 
up  the  claim  to  an  equitable  assignment,  although  he  may 
have  paid  the  debt  at  the  mortgagor 's  request.**'  On  the  other 
hand,  if  there  is  an  actual  assignment  to  the  volunteer  payor, 
no  additional  circumstances  can  make  the  transaction  work 
a  discharge  of  the  mortgage."®  But  when  the  payment  is 
made  by  one  who  is  not  under  a  primary  personal  obligation 
to  pay,  who  is  secondarily  liable  as  surety  or  indorser,  or 
who  has  an  interest  in  the  mortgaged  property,  and,  conse- 
quently, a  right  to  redeem,  payment  does  not  always  operate 
as  a  discharge.  And  the  question  is  not  determined  so  much 
by  the  form  of  the  acknowledgment  of  payment  as  the  in- 
tention of  the  party  paying.  That  intention  may  be  derived 
from  the  facts  connected  with  the  transaction  and  established 
by  parol  evidence.  And  where  it  is,  beyond  a  doubt,  to  the 
interest  of  the  one  paying  that  the  mortgage  should  be  kept 
alive,  equity  will  look  upon  the  transaction  as  an  assignment 
and  not  a  discharge.""  Especially  is  .his  the  case  where  the 
person  paying  has  only  a  part  interest  in  the  premises,  or 
is  a  surety,  and  by  paying  becomes  entitled  to  contribution 
or  satisfaction  from  the  mortgagor  and  others  interested  in 
the  property.  Payment  in  such  cases  never  works  a  dis- 
charge; the  mortgage  survives,  and  may  afterwards  be  en- 
forced against  all  parties  affected  with  notice.^     But  when 

97  Downer  v.  Wilson,  33  Vt.  1.  See  Guy  v.  Be  Uprey,  16  Cal.  IflO. 
But  see  Crippen  v.  Chappel,  35  Kan.  495,  where  it  has  been  held  that 
one  paying  the  debt  at  the  request  of  the  deceased  mortgagor's  ad- 
ministrator, in  reliance  upon  the  validity  of  a  new  mortgage  given  by 
the  administrator,  can  claim  the  rights  of  an  assignee  of  the  old  mort- 
gage, although  it  has  been  duly  cancelled. 

»8  Brown  r.  Scott,  87  Ala.  453. 

0"  A  payment  by  a  widow,  of  a  mortgage  on  her  homestead  will  be 
kept  alivo,  in  equity,  and  the  heirs  can  be  made  to  contribute.  Dins- 
moor  V.  Rowse,  211  111.  317,  71  N.  E.  Rep.  1003.  And  for  similar 
payment  by  a  subsequent  mortgagee,  see  Brethaur  v.  Schorer,  77  Conn. 
575,  60  Atl.   Rep.   125. 

1  Hinds  v.  Ballou.  44  N.  H.  619;   Stantons  v.  Thompson,  40  N.  H. 

371 


§    258  RIGHTS   OP    MORTGAGOR   AND   MORTGAGEE.  [PART   I. 

such  a  person  pays  the  mortgage  debt,  he  can  insist  upon  the 
transfer  to  him  of  the  notes  or  other  evidences  of  indebted- 
ness and  the  mortgage.-  It  has,  however,  been  held  that  he 
cannot  require  them  to  be  assigned  to  him.? 

272;  Butler  r.  Seward,  100  Allen,  406;  Leavitt  v.  Pratt,  53  Me.  14; 
Kellogg  r.  Ames,  41  N.  Y.  259;  Abbott  v.  Kasson,  72  Pa.  St.  185; 
Walker  v  King,  44  Vt.  601;  Wadsworth  v.  Williams,  100  Mass.  126; 
Champlin  r.  Laytin,  18  Wend.  407;  Dudley  r.  Bergen,  23  N.  J.  Eq. 
397;  Russell  v.  Mixer,  42  Cal.  475;  Baker  v.  Flood,  103  Mass.  47; 
Ebert  r.  Gerding,  116  111.  216;  Stelzich  v.  Weidel,  27  111.  App.  177; 
Loud  V.  Lane,  8  Met.  517;  Bacon  v.  Bowdoin,  22  Pick.  401;  McCabe 
r.  Bellows,  7  Gray,  148 ;  Houghton  v.  Hapgood,  13  Pick.  158 ;  Spencer 
r.  Waterman,  36  Conn.  342;  Foster  V.  Hilliard,  1  Story,  77;  Swaine 
r.  Perine,  5  Johns.  Ch.  490;  Bell  v.  Mayor,  etc.,  10  Paige,  49;  Lamson 
f.  Drake,  105  Mass.  567;  Davis  v.  Wetherell,  13  Allen,  63;  McCabe  v. 
Swap,  14  Allen,  191;  Newhall  v.  Savings  Bank,  101  Mass.  431.  And 
payment  by  a  purchaser  of  the  equity  of  redemption  will  not  operate 
in  equity  as  an  extinguishment  of  the  mortgage,  as  against  the  mort- 
gagor, sureties  and  junior  incumbrancers,  although  the  mortgage  is 
formallj'  satisfied  and  cancelled,  unless  he  has  become  primarily  liable 
by  his  assumption  of  the  p"  i^ment  of  the  mortgage,  as  the  consideration 
of  the  conveyance  to  him.  Savage  V.  Hall,  12  Gray,  363 ;  Pitts  v. 
Aldrich,  11  Allen,  39;  Abbott  r.  Kasson,  72  Pa.  St.  183;  Pool  V. 
Hathaway,  22  Me.  85;  Skeel  v.  Spraker,  8  Paige  Ch.  182;  Millspauch 
V.  McBride,  7  Paige  Ch.  509;  Shin  V.  Fredericks,  50  111.  443;  Fitch  v. 
Cotheal,  2  Sandf.  Ch.  29;  Lilly  v.  Palmer,  51  111."  331;  Carpenter  v. 
Gleason,  58  Vt.  244;  Georgia  Chemical  Works  v.  Cartledge,  77  Ga. 
.547;  Gerdine  v.  Menage,  141  Minn.  417.  But  in  law,  an  actual  formal 
assignment  is  required  to  keep  the  mortgage  alive.  Den  V.  Dimon,  10 
N.  J.  L.  156;  Kinna  v.  Smith,  17  N.  J.  Eq.  14;  W'ade  V.  Howard,  11 
Pick  289.  And  a  part  owner  who  pays  the  debt  may  require  a  formal 
assignment  to  him.  Bayles  V.  Hunted,  40  Hun,  376.  But  if  the  mort- 
gage is  paid  off  by  such  part  owner  with  funds,  in  which  all  the  owners 
are  interested,  as  where  the  widow  pays  the  debt  with  the  proceeds  of 
the  growing  crop,  she  cannot  enforce  the  mortgage  against  the  deceased 
mortgagor's  heirs  and  distributees.  Skinner  v.  Chapman,  78  Ala.  376; 
Dinsmoor  r.  Rowse,  211  111.  317,  71  N.  E.  Rep.  1003;  Brethaur  v. 
Schorer,  77  Conn.  575,  60  Atl.  Rep.  125. 

sStiger  r.  Bent,  111  111.  328. 

3  Holland  v.  Citizen's  Sav.  Bank  (R.  I.),  19  Atl.  Rep.  654;  McCulla 
V.  Beadlestor  (R.  I.),  20  Atl.  Rep.  11.  But  see  contra,  Nelson  V. 
Loder,  .55  Hun,  173. 

372 


en.    XI.]  RIGHTS   OP    MORTGAGOR   AND   MORTGAGEE.  §    259 

§  259.  Registry  of  mortgages  and  herein  of  priority. — It  is 
a  general  rule  in  this  country  that  if  a  mortgage  is  duly 
registered  in  the  recorder's  office,  the  record  will  be  construc- 
tive notice  of  the  mortgage  to  all  subsequent  purchasei'S  and 
incumbrancers,  and  gives  to  it  a  priority  over  such  subse- 
quently acquired  interests.*  But  the  record  is  only  notice 
of  the  mortgage  as  recorded;  and  if  there  is  an  error  in  the 
registration,  as,  for  example,  showing  the  mortgage  to  be 
security  for  a  less  amount,  it  has  priority  over  subsequent 
purchasers  for  the  amount  recorded,  and  not  for  the  actual 
amount  expressed  in  the  mortgage.  The  purchaser  is  not  re- 
quired by  the  registry  laws  to  inspect  the  original  deeds,  for 
he  is  permitted  to  presume  that  the  record  is  a  correct  copy. 
So,  also,  if  a  mortgage  appears  on  the  record,  through  an 
error  in  registration,  to  be  invalid  from  defective  execution, 
the  investigator  of  titles  is  not  required  to  go  behind  the 
registry  and  inquire  into  the  cause  of  the  invalidity;  nor  is 
he  affected  by  such  a  record  with  notice  of  the  equities 
which  might  arise  out  of  the  irregular  deed  between  the  par- 
ties to  the  same.**  But  the  index  is  not  a  part  of  the  record, 
and  an  error  appearing  therein  will  not  prejudice  the  rights 
of  the  mortgagee.     It  is  not  even  necessary  for  the  mortgage 


♦  See  post,  Sees.  578,  580,  where  tlie  recording  law  is  discussed  gen- 
erally. 

6  Russell  V.  Shields,  11  Ga.  636;  Frost  r.  Beekman,  1  Johns.  Ch.  288; 
8.  0.  18  Johns.  .544;  Terrell  v.  Andrew  Co.,  44  Mo.  309;  Farmers*  Bk. 
V.  Bronson,  14  Mich.  369.  A  different  rule  is  held  in  other  States,  under 
the  peculiar  phraseology  of  their  statutes  of  registration.  Brook's  Ap- 
peal, 64  Pa.  St.  127;  Wood's  Appeal,  82  Pa.  St.  116;  Atkinson  V. 
Hewett,  63  Wis.  396;  Ward  V.  Ward,  131  Fed.  Rep.  946.  Where  the 
recording  law  provides  for  the  separate  registration  of  deeds  and 
mortgages,  the  fact  that  a  deed,  absolute  in  form,  may,  in  fact,  be  a 
mortgage,  does  not  authorize  the  recording  of  such  deed  as  a  mort- 
gage. Kent  V.  Williams  (Cal.  1905),  79  Pac.  Rep.  527.  In  some 
States  statutes  have  been  passed,  making  defectively  recorded  instru- 
ments valid,  after  a  given  tijne.  Such  statutes  of  repose  are  generally 
enforced.  See  R.  S.  Mo.  1899,  Sec.  3118  construed  in  German  Bank 
V.  Real  Est.  Co.  150  Mo.  570,  51  8.  W.  Rep.  691. 

373 


§    260  RIGHTS   OF    MORTGAGOR   AND    MORTGAGEE.  [PAET    I. 

to  be  indexed."  It  has  also  been  held  that  the  subsequent 
purchaser  is  not  charged  with  constructive  notice  of  the  ex- 
istence of  a  mortgage,  because  the  land  had  been  previously 
sold  under  the  order  of  a  court  of  record  in  which  the  execu- 
tion of  a  mortgage  to  secure  the  unpaid  balance  of  the  pur- 
chase money  was  expressly  required.^  The  registration  must 
also  comply  with  the  essential  requirements  of  the  registry 
laws,  in  order  to  raise  a  constructive  notice  of  the  mortgage.* 
What  constitutes  a  proper  record  is  the  same  in  most  of  the 
States,  whether  the  deed  be  a  mortgage  or  an  absolute  con- 
veyance. The  subject,  therefore,  will  be  more  clearly  eluci- 
dated under  the  head  of  titles  to  real  property.* 

§  260.  Rule  of  priority  from  registry,  its  force  and  effect. — 
But,  notwithstanding  the  registry  laws  provide  for  the  re- 
cording of  mortgages  like  other  deeds,  the  general  rule  is 
that  an  unrecorded  mortgage  is  still  good  between  the  parties 
themselves,  and  all  other  persons  claiming  under  them,  with- 
out a  valuable  consideration,  or  with  notice  of  the  mortgage.^" 

e  Curtis  v.  Lyman,  24  Vt.  338 ;  Dodge  v.  Potter,  18  Barb.  193 ;  Mutual 
Life  Ins.  Co.  v.  Dake,  1  Abb.  N.  C.  381;  Throckmorton  i;.  Price, 
28  Texas,  605;  Bishop  v.  Schneider,  46  Mo.  472,  2  Am.  Rep.  533;  Shell 
f.  Stein.  76  Pa.  St.  398,  18  Am.  Rep.  41G;  contra,  Walley  r.  Small,  25 
Iowa,  184;   Pringle  V.  Dunn,  37  Wis.  449,   19  Am.  Rep.  772. 

7  Piester  v.  Piester,  22  S.  C.   139. 

8  Wood  V.  Reeves,  23  S.  C.  382. 

» See  post,  Sees.  580,  582.  In  respect  to  the  priority  of  a  sub- 
stituted mortgage  over  incumbrances  already  recorded,  see  ante,  Sec. 
256. 

10  And  the  rule  is  the  same  if  the  mortgage  has  been  defectively 
executed.  Nice's  Appeal,  54  Pa.  St.  200;  Raconillet  v.  Sansevain,  32 
Cal.  376;  Bibb  V.  Baker,  17  B.  Mon.  292;  Sparks  v.  State  Bank,  7 
Blackf.  469;  Harris  v.  Norton,  16  Barb.  264;  Leggett  v.  Bullock, 
Busb.  L.  283;  Wyatt  v.  Stewart,  34  Ala.  716;  Ray  v.  Hallenbeck,  42 
Fed.  Rep.  381;  Short  v.  Fogle,  42  Kan.  349;  Mann  v.  State,  116  Ind. 
363;  contra.  White  v.  Denman,  1  Ohio  St.  110;  Henderson  V.  McGee, 
6  Heisk.  55.  But  see  post,  Sees.  580,  581.  Under  the  New  York  stat- 
ute, the  absence  of  registration  does  not  effect  the  validity  of  the 
mortgage,  as  between  the  original  parties.  Ward  v.  Ward,  131  Fed. 
374 


I 


CH.    XI.]  RIGHTS   OF   MORTGAGOR    AND    MORTGAGEE.  §    260 

If  the  subsequent  purchase  is  for  value  and  without  notice, 
the  recorded  deed  has  the  priority  over  the  unrecorded  mort- 
gage. And  a  recorded  mortgage  has  been  held  to  take  prece- 
dence to  a  jjrior  unrecorded  mortgage,  even  though  the  debt 
of  the  former  was  incurred  at  a  time  anterior  to  the  execution 
of  the  latter.  Though  the  record  be  destroyed,  the  priority 
gamed  by  registration  will  not  be  affected  thereby,  if  it  can 
be  established  by  other  evidence."  The  parties  may  also  by 
agreement  change  the  order  of  priority,  and  give  to  a  sub- 
sequently recorded  deed  priority  over  one  already  recorded, 
but  the  agreement  will  only  bind  the  parties  and  their  privies 
with  notice.^-  But  where  two  mortgages  are  executed  and 
recorded  simultaneously,  they  are  concurrent  liens  on  the 
property.^^  And  where  they  are  executed  simultaneously, 
and  by  the  understanding  of  the  parties,  express  or  implied, 
one  is  not  to  have  priority,  an  earlier  record  of  one  will  not 
give  it  priority  over  the  other,^*  But  if  one  of  the  mortgages 
is  for  the  purchase-money,  it  will  have  priority  over  one  for 
some  other  debt,  although  they  are  simultaneously  recorded." 
If  both  are  for  purchase  money  they  will  be  concurrent 
liens.^®  A  mortgage  will  have  the  characteristics  of  a  pur- 
Rep.  04G.  See  also,  Singer  Mfg.  Co.  v.  Shull,  74  Mo.  App.  486; 
Hard   v.  Harlan,   143   Mo.  469,  45   S.  W.   Rep.   274. 

iiAlvis  r.  Morrison,  61  HI.   181,   14  Am.  Rep.  354;   Steele  v.  Boone, 
75   HI.  457;    Alston  v.  Alston,  4  S.  C.    116;   Gloss  v.  Kelly,  212   111. 
314,   72  N.   E.   Rep.   378. 

i2Gillig  f.  Mass,  28  N.  Y.  191;  Rhoades  V.  Canfield,  8  Paige  Ch. 
545;  -Freeman  v.  Shroeder,  43  Barb.  618;  Conover  v.  Van  Mater,  18 
N.  J.  L.  481;  Sparks  v.  State  Bank,  7  Blackf.  469;  Iowa  College 
Trustees  r.  Fenno,  67  Iowa,  244;  Raleigh  Bank  V.  Moore,  94  N.  C. 
734;  Dinsmore  v.  Matthews,  58  Mich.  616;  Brower  v.  Witmej'er,  121 
Ind.  83;   Foxwell  v.  Slaughter,  5  Del.  Ch.  396. 

"Stafford  r.  Van  Rensselaer,  9  Cow.  316;  Green  v.  Tomlinson,  23  N. 
J.    Eq.   405. 

"Daggett  f.  Rankin,  31  Cal.  327;  Howard  v.  Case,  104  Mass.  249. 

15  Clark  V.  Brown,  3  Allen,  509;  Turk  v.  Funk,  68  Mo.  18;  30  Am. 
Rep.  771;  Brower  v.  Witmeyer,  121  Ind.  83;  Boies  v.  Gardner,  53  Hun, 
236. 

i«  Jones  r.  Phelps,  2  Barb.  Ch.  440;  Pomeroy  v.  Layting,  16  Gray, 
435. 

375 


§    260  RIGHTS    OF    MORTGAGOR   AND    MORTGAGEE.  [PART    I. 

chase  money  mortgage  even  though  it  be  executed  su'ose- 
(juently,  provided  it  is  done  in  performance  of  a  contempo- 
raneous agreement  for  such  a  mortgage.'^  So,  also,  will  a 
purchase  money  mortgage  have  priority  over  a  prior  judg- 
ment lieu.^*  Whether  a  mortgage  unrecorded  will  be  post- 
poned to  the  lien  of  a  judgment  docketed  subsequently  has 
been  decided  differently  in  different  States.  In  some  of  the 
States  the  judgment  is  invariably  given  priority, ^^  while  in 
others  the  unrecorded  mortgage  will  take  precedence,  unless 
the  mortgaged  property  has  been  levied  upon  in  execution  of 
the  judgment  and  sold  to  a  purchaser  for  value.^°  If  there 
is  any  doubt  as  to  the  priority  of  the  judgment  in  such  a 
case,  the  true  rule  would  seem  to  require  the  question  to 
depend  upon  the  priority  in  execution  of  the  debts,  repre- 
sented respectively  by  the  mortgage  and  the  judgment.  If 
the  judgment  debt  was  incurred  subsequently  to  the  execu- 
tion of  the  mortgage,  the  judgment  when^  docketed  should 
have  priority  over  the  unrecorded  mortgage,  for  the  judg- 
ment-creditor, in  entering  into  the  contract  which  caused  the 

"Stewart  r.  Smith,  36  Minn.  82;  see  ante,  Sec.  94. 

IS  Stewart  r.  Smith,  36  Minn.  82 ;  Jacoby  v.  Crowe,  36  Minn.  93. 

loSemple  r.  Bird,  7  Serg.  &  E.  290;  Friedley  v.  Hamilton,  17  Sorg. 
&  R.  70;  Davidson  r.  Cowan,  1  Dev.  Eq.  470;  Van  Thorniley  v.  Peters, 
26  Ohio  St.  471;  Barker  v.  Bell,  37  Ala.  354;  Moore  v.  Watson,  1  Root, 
388;  Hawkins  v.  Files,  51  Ark.  417.  But  if  the  judgment-creditor  has 
notice  of  the  prior  unrecorded  mortgage,  the  mortgage  will  of  course 
take  precedence  to  the  judgment.  Wertz's  Appeal,  65  Pa.  St.  306; 
Britton's  Appeal,  45  Pa.  St.  172;  Williams  v.  Tatnall,  29  111.  553.  See, 
also,  Edwards  r.  Mo.  Kan.,  etc.,  Ry.  Co.,  82  Mo.  App.  96;  Ciiffin  v. 
Idem,   81   Mo.   App.   93. 

20  Finch  v.  Winchelsea,  1  P.  Wms.  278;  Burn  v.  Burn,  3  Ves.  582; 
Schmidt  r.  Hoyt,  1  Edw.  Ch.  652;  Jackson  r.  Dubois,  4  Johns.  216; 
Knell  r.  Green  St.  Building  Assn.,  34  Md.  07;  Hackett  r.  Callender.  32 
Vt.  97;  Hampton  t".  Levy,  1  McCord  Ch.  107  (but  see  Miles  v.  King, 
5  S.  C.  146)  ;  Righter  r.  Forester,  1  Bush,  278;  Morton  v.  Robards,  4 
Dana,  258;  Orth  v.  Jennings,  8  Blackf.  420;  Kelley  v.  Mills,  41  Miss. 
267;  First  Nat.  Bank  r.  Hayzlett,  40  Iowa,  659;  Iowa  Loan  &  T.  Co. 
V.  Mowery,  67  Iowa,  113;  Laidley  v.  Aikin  (Iowa),  45  N.  W.  Rep.  384; 
Flayler  V.  Malloy,  9  N.  Y.  S.  573;  Devin  v.  Eagleson  (Iowa),  44  N.  W. 
Kep.  545. 

376 


CH,    XI.]  RIGHTS   OF   MORTGAGOR   AND   MORTGAGEE.  §    261 

debt,  may  have  relied  upon  the  apparently  unincumbered  con- 
dition of  the  debtor's  property. 

§  261.  Registry  of  assigfnineiits  of  mortg^ages  and  eqnities 
of  redemption. —  Since  the  registration  of  a  deed  is  construc- 
tive notice  only  to  subsequent  purchasers  and  incumbrancers, 
the  recording  of  an  assignment  of  the  mortgage,  although 
a  protection  against  other  assignees  and  purchasers  from  the 
mortgagee,  is  no  notice  to  the  mortgagor  and  his  assigns, 
either  before  or  after  the  execution  of  the  mortgage,  which 
has  been  the  subject  of  assignment;  in  other  words,  to  senior 
mortgagees  as  well  as  to  purchasers  of  the  equity  of  redemp- 
tion.^^ In  order  not  to  be  bound  by  the  acts  of  the  mort- 
gagee after  the  assignment,  which  have  the  effect  of  extin- 
guishing the  mortgage — as,  for  example,  acceptance  of  pay- 
ment from  the  mortgagor — actual  notice  of  the  assignment 
must  be  brought  to  the  mortgagor  and  subsequent  purchasers 
of  his  equity  of  redemption.^^  But  the  absence  of  the  in- 
strument of  indebtedness  which  has  been  secured  by  the 
mortgage  from  the  possession  of  the  mortgagee,  is  sufficient 
notice  to  all  parties  of  the  equitable  assignment  of  the  mort- 
gage.*' So,  also,  must  actual  notice  be  given  to  the  mort- 
gagee of  the  assignment  of  the  mortgagor's  estate,  in  order 
that  the  rights  of  the  assignee  may  be  fully  protected  against 
the  unlawful  acts  of  the  mortgagor.** 

21  Holliger  v.  Bates,  43  Ohio  St.  437. 

22  Jones  r.  Gibbons,  9  Ves.  410;  Mitchell  v.  Burnham,  44  Me.  302; 
James  v.  Johnson,  6  Johns.  Ch.  417;  Walcott  V.  Sullivan,  1  Edw.  Ch. 
.399;  Ely  V.  Schofield,  35  Barb.  330;  Belden  V.  Meeker,  47  N.  Y.  307; 
Titus  f.  Haynes,  9  N.  Y.  S.  742;  Castle  v.  Castle  (Mich.),  44  N.  W. 
Rep.  378.  In  some  of  the  States,  notably  California,  Indiana,  Kansas, 
Michigan,  Minnesota,  Nebraska,  New  York,  Oregon,  Wisconsin  and 
Maryland,  the  same  rule  is  established  by  statute.  Jones  on  Mort.,  Sec. 
473;  2  Washburn  on  Real  Prop.  148.  See  Watson  v.  Dundee  Mortgage, 
etc..  Co.,  12  Or.  47,  and  see  post,  Sec.  579. 

28  Rice  V.  McFarland,  34  Mo.  App,  404 ;  Kellogg  v.  Smith,  26  N.  Y. 
18,  23. 
2«4  Kent's  Com.  174;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  158;  Bell  v. 

377 


§   262  RIGHTS   OP    MORTGAGOR   AND   MORTGAGEE,         [PART   I. 

§  262.  Tacking  of  mortgages. — In  England,  if  there  are 
three  or  more  mortgages  upon  the  same  property,  and  the 
tirst  and  third,  or  other  subsequent  mortgages,  are  held  by 
the  same  person  with  the  intervening  second  mortgage  out- 
standing in  another,  by  obtaining  possession  under  the  first 
mortgage,  the  mortgagee  may  hold  the  mortgaged  premises 
against  the  second  mortgagee,  until  the  third  or  other  sub- 
sequent mortgage  in  his  possession  has  been  satisfied.  This 
doctrine  is  called  "the  tacking  of  mortgages,"  and  is  based 
upon  the  theory  that,  since  one  mortgagee  has.no  notice  of 
the  other  mortgages,  the  equities  of  successive  junior  mort- 
gagees are  equal ;  and  the  first  mortgagee,  having  the  full 
legal  title  in  possession,  may  use  his  possession  for  the  benefit 
of  whatever  liens  he  may  have  upon  the  premises  to  the  ex- 
clusion of  other  subsequent  mortgagees,  who  would  otherwise 
have  taken  subject  only  to  the  first  mortgage.^^  But  in  this 
countrj'-  the  general  prevalence  of  recording  laws  has  taken 
from  the  doctrine  its  practical  value,  since  the  record  is  con- 
structive notice  to  all  subsequent  incumbrancers,  and  such 
notice  destroys  the  equality  of  the  equities  said  to  exist  be- 
tween junior  mortgagees.  It  may  be  said  that  the  doctrine 
does  not  prevail  at  all  in  the  United  States.^®     But  the  same 

Fleming,  12  N.  J.  Eq.  16;  Groesbeck  v.  Mattison,  43  Minn.  ,'547;  Clark 
f.  McNeal,  114  N.  Y.  287;  First  Nat.  Bank  v.  Honeyman  (Dak.),  42 
N.  W.  Rep.  771.     See  post,  Sec.  579. 

25  Young  V.  Young,  L.  R.  3  Eq.  805;  Marsh  v.  Lee,  2  Vent.  337;  s.  c. 

I  Ch.  Cas.  162;  Brace  v.  Marlborough,  2  P.  Wms.  491. 

26  Grant  v.  Bissett,  1  Caine's  Cas.  1 12 ;  McKinstry  v.  Merwin,  3 
Johns.  Ch,  466;  Burnett  v.  Denniston,  5  Johns.  Ch.  35;  Loring  v. 
Cooke,  3  Pick.  48;   Green  v.  Tanner,  8  Mete.  411;   Anderson  v.  Neff, 

II  Serg.  &  R.  208;  Thomas'  App.,  30  Pa.  St.  378;  Brigden  v.  Carhart, 
1  Hopk.  Ch.  231;  Averill  v.  Guthrie,  8  Dana,  82;  Wing  v.  McDowell, 
Walk.  (Mich.)  175.  But  it  has  been  held  in  a  number  of  the  courts 
that,  as  between  mortgagor  and  mortgagee,  the  mortgagee  may  hold 
the  mortgage  and  refuse  a  satisfaction,  until  all  subsequent  advances 
made  by  the  mortgagee  shall  have  been  paid.  Orvis  V.  Newell,  17 
Conn.  97;  Chase  v.  McDonald,  7  Har.  &  J.  160;  Lea  V.  Stone,  5  Gill 
&  J.  611;  Joslyn  v.  Wyman,  5  Allen,  62;  Stone  v.  Lane,  10  Allen,  74; 
Siter  V.  McClanachan,  2  Gratt.  280;   Colquhoun  v.  Atkinson,  6  Munf. 

378 


CII.    XI.]  RIGHTS   OF   MORTGAGOR   AND   MORTGAGEE.  §    2G3 

principle  is  now  applied  to  the  right  of  the  mortgagee  in 
possession  to  apply  the  rents  and  profits  to  the  liquidation 
of  any  one  of  the  mortgages  which  he  may  hold,  and  the 
intervening  mortgagee  has  no  right  to  object  to  the  applica- 
tion of  them  to  a  third  or  other  subsequent  mortgage.^^ 

§  263.  Priority  in  mortgages  for  future  advances. —  Where 
the  first  recorded  mortgage  is  to  secure  future  advances,  it 
becomes  a  question  of  importance  to  what  extent  will  such 
a  mortgage  have  priority  over  a  subsequently  recorded  mort- 
gage; and,  although  there  was  at  one  time  a  considerable 
diversity  of  opinion,  the  general  rule  now  prevailing  seems 
to  be  the  following:  If  the  mortgagee  has  entered  into  a 
binding  contract  to  furnish  the  advances  under  all  circum- 
stances, and  his  failure  to  do  so  would  expose  him  to  an  ac- 
tion on  the  covenant,  even  if  such  refusal  or  failure  occurred 
after  the  execution  of  the  second  mortgage,  then  his  mort- 
gage will  take  precedence  to  the  second  mortgage  for  the 
amounts  advanced  both  before  and  after  the  execution  of  the 
latter.^^  But  if  the  continuance  of  the  advances  be  volun- 
tary, and  his  refusal  to  make  them  after  the  second  mortgage 

550;  Walling  f.  Aiken,  1  McMull.  Eq.  1;  Hughes  v.  Worley,  1  Bibb. 
200;  Downing  r.  Palmeteer,  1  B.  Mon.  64;  Coombs  v.  Jordan,  3  Bland, 
284.  The  "  tacking "  of  mortgages,  being  based  upon  the  "  legal  es- 
tate "  in  the  mortgagee  in  possession,  irrespective  of  the  question  of 
notice,  imparted  by  registration  laws,  the  right  could  not  exist  in 
States  where  the  "  lien  theory  "  of  mortgages  obtains.  2  Tiffany,  Keal 
Prop.,  Sec.  543,  p.  1243 ;  4  Kent's  Com.  178. 

27  Leeds  V.  Gifford,  41  N.  J.  Eq.  464. 

28Ladue  v.  Detroit,  etc.,  R.  R.,  13  Mich.  380;  Griffin  v.  Burnett,  4 
Edw.  Ch.  673;  Boswell  v.  Goodwin,  31  Conn.  74;  s.  c.  12  Am.  Law 
Reg.  79,  note;  Rowan  V.  Sharpe,  etc.,  Mfg.  Co.,  29  Conn.  329;  Lyie  V. 
Duncomb,  5  Binn.  585;  Hopkinson  v.  Rolt,  H.  L.  Cas.  9514;  Nelson  v. 
Iowa,  etc.,  R.  R.,  8  Am.*  R.  R.  Rep.  82.  See  also,  Hamilton  v.  Rhodes 
(Ark.  1904),  83  S.  W.  Rep.  351,  a  mortgage  for  future  advances  to 
a  "  cropper."  But  as  to  requirement  of  definiteness  in  description  of 
debts  for  future  advances  secured,  see,  Powell  v.  Harrison,  85  N.  Y.  8. 
452,  88  App.  Div.  228;  Belcher  Land  &  Mfg.  Co.  v.  Norris  (Texas 
1903).  78  S.  W.  Rep.  390. 

379 


§    263  RIGHTS   OP   MORTGAGOR   AND    MORTGAGEE.  [PART   I. 

would  not  constitute  a  breach  of  the  covenant,  the  first  mort- 
gage will  have  priority  only  for  such  amounts  as  have  been 
advanced  before  the  first  mortgagee  received  notice  of  the 
second  mortgage.^"  It  has  also  been  a  much  discussed  ques- 
tion whether  the  registration  of  the  second  mortgage  is  such 
constructive  notice  to  the  first  mortgagee  as  to  prevent  him 
from  claiming  priority  for  advances  made  after  the  recording, 
and  before  the  receipt  of  actual  notice.  In  Ohio,  Pennsyl- 
vania and  Michigan  it  is  held  that  the  recording  of  the  second 
mortgage  is  constructive  notice  to  the  first  mortgagee  (in  a 
mortgage  for  future  advances),  and  ]\Ir.  Redfield,  the  late 
chief  justice  of  the  Supreme  Court  of  Vermont,  has  expressed 
the  opinion  that  such  will  finally  be  the  prevailing  rule  in 
this  country.^"  But  this  view  is  certainly  in  conflict,  not  only 
with  the  other  English  and  American  decisions  on  this  par- 
tle;il:ir  question,  but  also  with  the  general  theory  of  the  effect 
of  recording  a  deed.  It  has  been  explained  that  the  registry 
is  notice  only  to  those  who  subsequently  acquire  interests  in 
the  same  property,  and  unless  strong  grounds  are  shown  for 
making  an  exception  in  this  case  to  the  general  rule,  we  must 
hold,  with  the  majority  of  the  American  and  English  courts, 
that  actual  notice  must  be  brought  home  to  the  first  mort- 
gagee, in  order  to  give  to  the  second  mortgage  priority  over 
the  advances  made  afterwards  under  the  first.^^ 

29Boswell  V.  Goodwin,  31  Conn.  '74;  Hopkinson  r.  Rolt,  9  H.  L.  Cas. 
514;  Robinson  V.  Williams,  22  N.  Y.  380;  Brinkerhoff  v.  Marvin,  5 
Johns.  Ch.  320;  Bk.  of  Montgomery  Co.'s  Appeal,  36  Pa.  St.  172;  Cox 
V.  Hoxie,  115  Mass.  120;  contra,  Wilson  v.  Russell,  19  Md.  494; 
Witczieski  v.  Everman,  51  Miss.  841,  which  hold  that  any  mortgage 
for  future  advances  will  be  good  against  subsequent  purchasers,  as  to 
advances  made  after  the  second  conveyance,  wliether  the  mortgagee  is 
bound  to  make  them  or  not. 

30  Bk.  of  Montgomery  Co.'s  Appeal,  36  Pa.  St.  170;  Parmentier  V. 
Gillespie,  9  Pa.  St.  86,  12  Am.  Law  Reg.  92,  Judge  Redfield's  note  to 
Boswell  V.  Goodwin;  s.  c.  31  Conn.  74;  Ladue  v.  Detroit,  etc.,  R.  R,, 
13  Mich.   380. 

aiMcDaniels  v.  Colvin,  16  Vt,  300;  Craig  r.  Toppin.  2  Sandf.  Ch. 
78;  Ward  v.  Cooke,  17  N.  J.  Eq.  93;  Robinson  f.  Williams,  22  N.  Y. 
380 


CH.    XI,]         RIGHTS   OF   MORTGAGOR   AND   MORTGAGEE.  §    264 

§  264.  Satisfaction  of  the  mortgage  on  the  records. —  In 
every  State,  provision  is  made  for  the  entry  on  the  records  of 
satisfaction  of  the  mortgage  and  deed  of  trust,  either  by  an 
original  acknowledgment  on  the  margin  of  the  records  of  the 
mortgage,  or  by  the  registration  of  an  independent  certificate 
or  acknowledgment  of  satisfaction,  which  has  been  signed 
by  the  mortgagee  or  present  holder  of  the  mortgage  debt, 
in  compliance  with  the  provisions  of  the  statute.  The  stat- 
utory provisions  are  almost  as  various  as  there  are  independ- 
ent statutes  relating  to  the  subject,  and  it  would  be  mani- 
festly impossible  in  this  connection  to  give  an  account  of 
these  divergent  provisions.^^  Whatever  provisions  there  may 
be  in  a  particular  State  they  must  be  complied  with,  in  or- 
der that  the  discharge  of  the  mortgage  may  prove  effective. 
SuflSce  it  to  say  that  when  the  satisfaction  has  been  properly 
entered  on  the  records  by  one  who  has  the  right  to  receive 
payment,  it  operates  to  discharge  the  mortgage  completely  as 
to  subsequent  purchasers,  who  take  the  title  of  the  land  with- 
out notice  of  any  defect  in  the  apparently  valid  discharge  of 
the  mortgage.  But  if  it-  has  been  improperly  entered  upon 
the  record,  or  the  entry  has  been  made  by  one  who  is  not  the 
holder  of  the  note  or  bond  which  is  secured  by  the  mortgage 
or  the  agent  of  such  holder,  and  who  therefore  cannot  dis- 
charge the  mortgage,  the  entry  is  a  nullity,  and  does  not 
affect  the  title  to  the  mortgage,  even  as  to  subsequent  pur- 
chasers.'' The  signature  of  the  acknowledgment  of  satisfac- 
tion must  of  course  be  genuine.     If  it  be  forged,  it  will  have 

380;   Rowan  v.  Sharpe's  Rifle  Co.,  29  Conn.  329;   Nelson  v.  Boyce,  7 
J.  J.  Marsh.  401;  Jones  on  Mort.,  Sec.  372. 

32  In  many  States  a  penalty  is  provided,  by  statute,  for  a  failure 
to  enter  satisfaction,  on  the  records,  by  a  mortgagee.  Ala.  Code,  1896, 
Sec.  1066;  Partridge  r.  Wilson,  37  So.  Rep.  441;  Rev.  St.  Mo.  1899, 
Sec.  4367;  Civ.  Code  Mont.,  Sec.  3845;  Henderson  f.  Wilson,  36  So. 
Rep.  .516. 

33Cornog  V.  Fuller,  30  Iowa,  212;  Ayers  f.  Hayes,  60  Ind.  452;  Viele 
p.  Judson,  15  Hun,  328;  Begein  r.  Brehm  (Ind.),  23  N,  E.  Rep.  496; 
Lee  V.  Clark,  89  Mo.  553;  O'Neill  v.  Douthitt,  40  Kan.  689.  But 
contra,  Lewis  r.  Kirk.  28  Kan.  497;  Fisher  v.  Cowles,  41  Kan.  418. 

.'J81 


§   264  RIGHTS   OF    MORTGAGOR   AND    MORTGAGEE.  [PART   I. 

no  effect  upon  the  mortgage,  not  even  against  subsequent 
purchasers  without  notice.^*  But,  except  as  against  subse- 
quent purchasers  without  notice  and  for  value,  an  entry  of 
satisfaction,  through  accident,  mistake,  or  fraud,  and  to  the 
detriment  of  one  who  has  a  right  to  enforce  the  mortgage 
against  the  mortgagor,  may  be  vacated  and  the  mortgage  be 
revived.^°  The  mortgagor  or  owner  of  the  land  can  always 
compel  the  holder  of  the  mortgage  to  make  this  formal  satis- 
faction, and  in  many  of  the  States  recover  of  him  a  penalty 
for  failing  to  do  so.^'  And  in  many  of  the  States  the  courts 
will  order  a  discharge  from  the  records  of  a  mortgage  which 
has  been  barred  by  the  statute  of  limitations.^^  If  a  satis- 
faction has  been  made  subject  to  the  performance  of  a  con- 
dition by  the  mortgagor,  upon  the  breach  of  the  con- 
dition, the  satisfaction  will  be  set  aside  on  application  to  a 
court.'* 

34  Chandler  v.  White,  84  111.  435;  Meley  V.  Collins,  41  Cal.  663.  See 
Cost*illo  V.  Meade,  55  How.  Pr.  356. 

«5Hale  V.  Morgan,  68  111.  244;  Steiger  v.  Bent,  111  111.  328;  Fergu- 
p.on  V.  Glassford,  68  Mich.  36;  Wilton  v.  Mayberry,  75  Wise.  191;  Beal 
V.  Congdon,  75  Mich.  77.  In  California,  where  a  mortgage  was  satisfied 
through  a  mistake,  it  was  held  not  necessary  to  secure  a  cancellation, 
before  foreclosure.  White  V.  Stevenson,  144  Cal.  104,  77  Pac.  Rep. 
828. 

30  Remington  Paper  Co.  v.  O'Dougherty,  81  N.  Y.  474;  Radcliffe  f. 
Rowley,  2  Barb.  Ch.  23;  Tuthill  v.  Morris,  81  N.  Y.  94;  Sweet  V.  Ward, 
43  Kan.  695;  Campbell  v.  Seeley,  38  Mo.  App.  298;  Dodson  v.  Clark, 
38  Mo.  App.  150;  Steiner  v.  Ellis  (Ala.),  7  So.  Rep.  803;  Ashbey  v. 
Ashbey,  41  La.  An.  138;  Murdock  v.  Cox,  118  Ind.  266;  Woolsey  v. 
Bohn,  41  Mich.  235;  Hall  v.  Hurd,  40  Kan.  740;  Partridge  i'.  Wilson 
(Ala.   1904),  37  So.  Rep.  441. 

37  Kingman  v.  Sinclair   (Mich.),  45  N.  W.  Rep.  187. 

38  Smith  V.  Smith,  8  N.  Y.  S.  637.  But  equity  will  not  interfere  to 
compell  a  cancellation  or  satisfaction  of  a  mortgage,  unless  tlie  evi- 
dence of  payment  and  discharge  is  clear.  Dinner  v.  Van  Dyke,  25  Pa. 
Super.  St.  433.  The  remedy  of  heirs  of  a  deceased  mortgagee,  in  Penn- 
sylvania, to  set  aside  a  satisfaction  procured  by  fraud  during  the  life- 
time of  the  mortgagee,  is  by  bill  in  the  Orphans  Court.  Gilkeson  V. 
Thompson,  210  Pa.   355,  59  Atl.  Rep.   1114. 

382 


SECTION  III. 

REMEDIES  AND   REMEDIAL  RIGHTS  INCIDENT  TO   MORTGAGES. 

Section  265.  Actions  for  waste. 

266.  Process  to  redeem. 

267.  Accounting  by  the  mortgagee. 

268.  Continued  —  What  are  lawful  debits? 

269.  Continued  —  What  are  lawful  credits? 

270.  Making  rests. 

271.  Balance  due. 

272.  Foreclosure  —  Nature  and  kinds  of. 

273.  Continued  —  Who  should  be  made  parties? 

274.  Parties   to  Foreclosures  —  Continued. 

275.  Effect  of  decree  in  foreclosure  upon  the  land. 

276.  The  effects  of  foreclosure  upon  the  debt. 

277.  Mortgages,  with  power  of  sale. 

278.  Character  of  the  mortgage  in  relation  to  the  power. 

279.  Purchase  by  mortgagee  at  his  own  sale. 

280.  Extinguishment  of  the  power. 

281.  Application  of  purchase-money. 

282.  Deeds  of  trust. 

283.  Contribution  to  redeem  —  General  statement. 

284.  Mortgagor  V.  his  assignees. 

285.  Contribution  between  assignees  of  the  mortgagor  —  Effect 

of  release  of  one  of  them. 

286.  Contribution  between  the  surety  and  the  mortgagor. 

287.  Between  heirs,  widows,  and  devisees  of  the  mortgagor. 

288.  Between  the  mortgaged  property  and  the  mortgagor's  per- 

sonal estate. 

289.  Special  agreements  affecting  the  rights  of  contribution  and 

exoneration. 

290.  Marshaling  of  assets  between  successive  mortgagees. 

§  265.  Actions  for  waste. —  If  the  party  in  possession  — 
whether  mortgagor  or  mortgagee,  or  their  respective  assignees 
— does  anything  in  respect  to  the  mortgaged  property  which 
constitutes  waste,,  and  as  such  essentially  impairs  the  value 
of  the  inheritance,  he  will  be  responsible  in  damage  to  the 

383 


§    265  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART    I. 

other  parties  who  are  interested  in  the  property.  But  a 
mortgagor  is  not  guilty  of  waste,  on  account  of  acts  of  omis- 
sion. In  the  absence  of  an  express  covenant  to  repair,  he 
is  not  ♦guilty  of  waste,  as  against  the  mortgagee,  if  he  fails 
to  keep  the  premises  in  repair.'"'  The  action  is  not  the  tech- 
nical legal  action,  but  is  one  in  the  nature  of  waste,  and  in 
the  code  pleading  would  be  simply  an  action  for  damages.*'' 
But  the  most  effective  remedy  for  the  prevention  of  waste 
by  the  parties  to  a  mortgage  is  a  bill  in  equity  for  an  injunc- 
tion, or  the  appointment  of  a  receiver  to  take  charge  of  the 
mortgaged  property.  Any  one  who  has  an  interest,  either 
in  the  mortgaged  premises  or  in  the  jnortgage  debt,  may  avail 
himself  of  these  remedies.*^ 

39  Union  Mut.,  etc.,  Ins.  Co.  v.  Union  Mills,  etc.,  37  Fed.  Rep.  286. 

loStowell  V.  Pike,  2  Greenl.  387;  Hagar  i.  Brainard.  44  Vt.  302; 
Sanders  v.  Reed,  12  N.  H.  558;  Burnside  V.  Twitchell,  43  N.  H.  390; 
Mayo  V.  Fletcher,  14  Pick.  525;  Wilmarth  r.  Bancroft.  10  Allen  348; 
Page  V.  Robinson,  10  Cush.  99;  Mitchell  v.  Bogan,  11  Rich.  Eq.  G86; 
Lane  V.  Hitchcock,  14  Johns.  205;  Haskin  r.  Woodward,  45  Pa.  St.  44; 
Van  Pett  v.  McGraw,  4  Comst.  110;  Gardner  r.  Heatt,  3  Denio  232: 
Barnett  v.  Nelson,  54  Iowa  41,  37  Am.  Rep.  183;  Moriarty  r.  Ashworth, 
43  Minn.  1.  And  after  condition  broken,  in  the  common-law  States, 
the  mortgagee  may  have  trover  or  replevin  for  the  timber  cut  by  the 
mortgagor,  against  the  purchaser  of  the  mortgagor,  as  well  as  against 
the  mortgagor  himself.  Langdon  V.  Paul,  22  Vt.  205;  Frothingham  r. 
McKusick,  24  Me.  403;  Kennerly  v.  Burgess,  38  Mo.  440;  Kimball  f. 
Lewiston,  etc.,  Co.,  55  Me.  494;  contra,  Peterson  v.  Clark,  14  Johns. 
205;   Wilson  v.  Malthy,  59  N.  Y.  126. 

•"Brady  v.  Waldron,  2  Johns.  148;  Johnson  V.  White,  11  Barb.  194; 
Cooper  V.  Davis,  15  Conn.  556;  Salmon  v.  Claggett.  3  Bland  Ch.  126; 
Capner  V.  Farmington  Co.,  2  Green  Ch.  467 ;  Brick  r.  Getsinger,  1  Halst. 
Ch.  .391;  Ensign  V.  Colburn,  11  Paige,  503;  Scott  f.  Wharton,  2  Hen. 
&  M.  25;  Gray  v.  Baldwin,  8  Blackf.  164;  McCaslin  r.  Tlie  State,  44 
Ind.  151;  Morrison  r.  Buckner,  Hempst.  442;  Fairbank  v.  Cudworth,  33 
Wis.  358;  Robinson  r.  Russell,  24  Cal.  467;  Hampton  r.  Hodges,  8  Ves. 
105;  Robinson  r.  Litton,  3  Atk.  210;  Goodman  r.  Kline,  8  Beav.  379. 
But  the  mortgagee  is  under  no  obligation  to  enjoin,  or  bring  action  for 
«.v"s*".  and  a  subsequent  incumbrancer  or  purchaser  cannot  hold  liim 
li.ilile  for  failing  thus  to  protect  the  inheritance,  and  reduce  the  debt. 
Knarr  v.  Conaway,  42  Ind.  260.  For  discussion  .of  the  relative  rights 
cf  mortgagee  and  mortgagor  of  mining  property,  to  mine  the  mortgaged 
384 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    266 

§  266.  Process  to  redeem. —  In  those  States  where  the  pay- 
ment or  tender  of  payment  after  condition  broken  extin- 
guishes the  mortgage,  and  enables  the  mortgagor  to  recover 
the  possession!  by  an  action  of  ejectment,  no  further  process  is 
needed  to  restore  him  to  the  complete  title  in  the  land.  But 
where  payment  or  tender  of  payment,  i.  e.,  after  breach  of 
the  condition,  does  not  have  that  effect — as  is  the  case  under 
the  common  law  theory — the  mortgagor  is  obliged  to  resort 
to  a  bill  in  equity  to  enforce  a  redemption  and  cancellation 
of  the  mortgage.  This  equitable  remedy  may  be  instituted 
by  the  mortgagor  or  any  one  claiming  under  him.  The  bill 
must  be  accompanied  with  a  tender  of  payment  into  the  court 
or  with  the  statement  of  a  willingness  to  pay  if  a  balance  is 
found  to  be  due  after  an  accounting,*^  and  the  decree  orders 
the  mortgagee  to  cancel  and  deliver  up  the  mortgage  and  the 
instrument  of  indebtedness.*^  The  action  for  redemption 
must  be  instituted  within  the  period  of  limitation  prescribed 
for  such  actions.**     Where  there  are  several  parties  before 

premises  and  when  mining  constitutes  waste,  see  White,  Mines  &  Min. 
Rem.,  Sees.  27.3-282,  and  cases  cited.  For  list  of  late  cases  on  injunc- 
tion against  mortgagee  to  prevent  waste,  see,  2  Am,  &  Eng.  Dec.  in  Eq., 
p.  673. 

42Pryor  v.  Hollinger,  88  Ala.  405;  Franklin  V.  Ayer,  22  Fla.  654; 
Genhoidt  f.  Tucker,  187  Mo.  46,  85  S.  W.  Rep.  552.  But  see,  Marvin 
V.  Prentice.  49  How.  Proc.  .385. 

*3  Beeknian  v.  Frost,  18  Johns.  544;  Silsbee  V.  Smith,  41  How.  Pr. 
418;  Barton  v.  May,  3  Sandf.  Ch.  450;  Perry  v.  Carr,  41  N.  H.  371; 
Daughdrill  v.  Sweeney,  41  Ala.  310;  Pitman  v.  Thornton,  66  Me.  469; 
Gerrish  r.  Black,  122  Mass.  76;  Halt  V.  Rees,  46  HI.  181;  Brobst  V. 
Brock,  10  Wall.  536;  Manning  v.  Elliott,  92  N.  C.  48;  Washburn  V. 
Hammond  (Mass.),  24  N.  E.  Rep.  33;  Hazard  V.  Robinson,  15  R.  I. 
226;  Payor  t'.  Hallinger,  88  Ala.  405.  In  Pennsylvania  redemption 
may  be  asked  for  in  an  action  of  ejectment.  Mellon  f.  Lemmon,  111 
Pa.  St.  56;  Franklin  v.  Ayer,  22  Fla.  654.  But  see  contra,  Casserly 
V.  Witherbee,  119  N.  Y.  522, 

♦*  See  ante.  Sec.  247.  See  also,  Schlawig  V.  Fleckenstein  (Iowa),  45 
N.  W,  Rep.  770.  A  tenant  for  years,  whose  lease  is  subsequent  to  the 
mortgage  (Kebabian  r.  Shinkle,  20  R.  I.  505,  59  Atl.  Rep.  743);  a 
dowress  (McKenna  v.  Trust  Co.,  00  N.  Y.  S.  493,  98  App.  Div,  480) 
attaching  creditors   (Whitney  r.  Metallic  Mfg,  Co,,   187  Mass.  537,  73 

25  385 


§    266  REMEDIES  INCIDENT   TO    MORTGAGES.  [PART    I. 

the  court  elaiminfj:  the  right  to  redeem,  the  court  will  grant 
the  right  of  redemption  to  them  in  the  order  of  their  priority, 
the  one  who  is  last  in  point  of  priority  being  required  to  re- 
deem all  the  preceding  mortgages,  in  order  that  he  may  ac- 
quire the  first  lien  or  absolute  title.**  All  persons  who  are 
interested  in  the  mortgage,  either  as  privies  of  the  mortgagor 
or  mortgagee,  are  proper  parties  to  an  action  for  redemption. 
The  mortgagee  and  his  assigns  are  necessary  parties.  And 
where  there  are  several  parcels  of  land  covered  by  the  mort- 
gage, and  the  owner  of  the  equity  of  one  wishes  to  redeem, 
the  owners  of  the  other  parcels  must  be  made  parties.  But 
this  rule  does  not  apply  where  there  are  separate  mortgages 
over  each  for  the  same  debt.** 

X.  E.  Rep.  663)  ;  subsequent  lienholders  (Dickinson  v.  Duckworth 
(Ark.  1905),  85  S.  W.  Rep.  82),  and  anyone  having  a  substantial  in- 
terest in  the  property  (Mercer  v.  McPherson  Kan.  1905,  79  Pac.  Rep. 
118)  can  generally  redeem.  But  a  willingness  and  ability  to  pay  the 
debt,  must  be  alleged  and  proved.  Gerhardt  v.  Tucker,  187  Mo.  46,  85 
S.  W.  Rep.  552.     But  see,  Marvin  v.  Prentice,  59  How.  Prac.  385. 

45  Moore  r.  Beasum,  44  N.  H.  215;  Brewer  v.  Hyndman,  18  N.  H.  9; 
Arcedechare  v.  Bowes,  3  Meriv.  216;  Buchanan  V.  Reid,  43  Minn.  172; 
Parke  t'.  Hush,  29  Minn.  434.  See  ante,  Sec.  255,  for  a  discussion  of 
the  persons  who  may  redeem. 

46  1  Dan.  Ch.  Pr.  306,  307;  Winslow  v.  Clark,  47  N.  Y.  261;  Dias  v. 
Merle,  4  Paige  259;  Hilton  v.  Lathrop,  46  Me.  297;  Brown  v.  Johnson, 
53  Me.  246;  Wigg  V.  Davis,  8  Greenl.  31;  Elliott  v.  Patton,  4  Yerg.  10; 
Wolcott  V.  Sullivan,  6  Paige  Ch.  117;  Shaw  v.  Hoadley,  8  Blackf.  165; 
Beals  r.  Cobb,  51  Me.  348;  Doody  v.  Pierce,  9  Allen  141;  Boyd  v.  Allen, 
15  Lea  81;  Perkins  v.  Brierfield  &  Co.,  77  Ala.  403.  Upon  the  death  of 
the  mortgagor,  either  his  heir  or  the  personal  representatives  may 
bring  the  suit,  because  both  are  interested  in  the  liquidation  of  the 
mortgage.  Enos  r.  Southerland,  11  Mich.  538;  Guthrie  v.  Sorrell,  6 
Ired.  Eq.  13;  Gen.  Stat.  Mass.  (1860),  Sees.  32,  33.  And  at  common 
law,  upon  the  death  of  the  mortgagee,  both  the  heirs  and  personal  rep- 
resentatives had  to  be  made  parties.  Anon.  2  Freem.  52 ;  Osbourn  v. 
Fallows,  1  Russ.  &  M.  741;  Story's  Eq.  PI.,  Sec.  188;  Haskins  r.  Homes, 
108  Mass.  379.  But  under  the  lien  theory  of  mortgages,  the  personal 
representatives  of  the  mortgagee  are  the  only  necessary  parties.  Cope- 
land  V.  Yoakum,  38  Mo.  349.  And  where  a  junior  mortgagee  redeems, 
he  must  make  the  mortgagor,  as  well  as  the  prior  mortgagee,  parties 

386 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    268 

§  267.  Accounting  by  the  mortgagee. —  In  the  action  for 
redemption,  in  order  to  determine  the  amount  then  due  on 
the  mortgage  it  is  sometimes  necessary  to  have  an  accounting. 
An  accounting  may  be  ordered  whenever  the  mortgage  debt 
involves  a  long  and  tedious  account  of  charges  and  counter- 
charges, but  it  is  particularly  necessary  when  the  mortgagee 
has  been  in  possession  of  the  premises,  has  received  the  rents 
and  profits  of  the  land,  and  expended  sums  of  money  in  keep- 
ing the  premises  in  repair.  The  mortgagor,  or  other  person, 
praying  for  redemption,  asks  for  an  accounting  by  the  mort- 
gagee. An  accounting  is  an  equitable  remedy  which  may  be 
instituted  independently  of,  or  in  conjunction  with,  another 
and  the  principal  suit.  The  mortgagor  and  his  assigns  may 
ask  for  an  accounting  without  filing  a  bill  to  redeem,  or  they 
may  request  it  in  connection  with  the  action  for  redemption. 
The  case  is  referred  to  a  master  in  chancery,  if  there  be  one, 
or  to  a  special  referee,  who  ascertains  and  determines  the 
prcpr  debits  and  credits  of  the  account  between  the  parties, 
and  reports  to  the  court  the  balance  found  due.*^  The  ap- 
proval by  a  court  of  competent  jurisdiction  of  the  mort- 
gagee's account  fixes  his  liability  thereon  definitely,  and  the 
account  cannot  thereafter  be  attacked  collaterally.** 

§  268.  Continued  —  What  are  lawful  debits?  —  In  the  first 
place  the  mortgagee  will  be  charged  with  whatever  rents  he 

defendant.     Farmer  v.  Curtis,  2  Sim.  466;  Caddick  v.  Cook,  32  Beav. 
70;  Rhodes  v.  Buekland,  16  Beav.  212;  Palk  v.  Clinton,  12  Ves.  48. 

<7Hunt  V.  Maynard,  6  Pick.  439;  Gibson  v.  Crehore,  5  Pick.  146; 
Bailley  v.  Myrick,  52  Me.  136;  Doody  v.  Pierce,  9  Allen  141;  Harper's 
Appeal,  64  Pa.  St.  315;  5  Wait's  Prac.  288;  Adams  v.  Brown,  7  Cush. 
220;  Hubbell  r.  Moulson,  53  N.  Y.  225;  Farris  v.  Houston,  78  Ala.  250; 
Pryor  f.  Hollinper,  88  Ala.  405;  Shuler  V.  Bonander  (Mich.),  45  N.  VV. 
Rep.  487.  The  mortgagee's  assigns,  as  well  as  the  mortgagee,  arc  liable 
to  be  called  to  account,  and  the  mortgagor's  assigns  have  a  right  to  de- 
mand an  account.  Brayton  v.  Jones,  5  Wis.  117;  Harrison  v.  Wise,  24 
Conn.  1;  Strang  f.  Allen,  44  111.  428;  Ruckman  v.  Astor,  9  Paige  Oh. 
517;  Gelston  r.  Thompson,  29  Md.  595. 

M/n  re  Helfenstein's  Estate  (Pa.),  20  Atl.  Rep.  151. 

387 


§   260  REMEDIES   INCIDENT  TO   MORTGAGES.  [pART  I. 

may  have  received,  or  which  he  could  have  received  but  for 
his  negligence  in  the  management  of  the  estate.  This  mat- 
ter has  been  already  discussed  in  a  previous  section,  and  a 
complete  statement  of  the  mortgagee's  liability  in  this  con- 
nection need  not  here  be  repeated.**  The  mortgagee  is  also 
chargeable  with  all  damage  done  to  the  inheritance  by  him- 
self, or  by  others  with  his  authority  or  permission,  whether 
the  acts  constitute  affirmative  or  negative  waste.  Thus  he 
is  liable  for  damages  resulting  from  the  opening  and  working 
of  a  mine,  as  well  as  from  letting  the  premises  fall  into 
decay.*" 

§  269.  Continued  —  What  are  lawful  credits  ?  —  Since  the 
mortgagee  in  possession  is  under  an  obligation  to  keep  the 
premises  in  repair,  he  is  entitled  to  credit  himself  with  all 
sums  expended  for  that  purpose.  But  he  will  not  be  allowed 
the  expenses  incurred  in  making  costly  improvements — such 
as  the  erection  of  new  buildings,  or  for  any  repairs  which 
are  not  of  permanent  benefit  to  the  inheritance.  The  true 
rule  seems  to  be,  that  he  will  be  allowed  only  such  expenses 
as  he  incurred  in  making  repairs,  which  were  necessary  to 
keep  the  premises  in  the  same  condition  as  he  received  them, 
and  for  such  improvements  beyond  that  limit  which  were 
necessary  to  the  ordinary  and  reasonable  enjoyment  of  the 
premises.  For  any  other  expenses  of  repair  he  can  be  cred- 
ited only  when  he  has  incurred  them  by  and  with  the  con- 
sent of  the  mortgagor.**^     But  it  has  been  held  in  some  of 

<9  See  ante.  Sec.  246.  For  accounting  from  mortgagee  in  possession, 
for  net  proceeds  of  mineral  taken  from  the  mortgaged  premises,  see. 
White,  Mines  &  Min.  Rem.,  Sec.  275,  and  cases  cited. 

00  See  ante,  Sec.  265;  White,  Mines  &  Min.  Rem.,  See.  273  et  sub. 

"Russell  V.  Blake,  2  Pick.  505;  Reed  r.  Reed,  10  Pick.  398;  Crafts 
V.  Crafts,  13  Gray  303;  Moore  v.  Cable,  1  Johns.  Ch.  385;  Gordon  f. 
Lewis,  2  Sumn.  143;  Norton  v.  Cooper,  39  Eng.  Law  &  Eq.  130;  Spar- 
hawk  V.  Wills,  5  Gray,  423;  Daugherty  v.  McColgan,  6  Gill  &  J.  275; 
Harper's  Appeal,  64  Pa.  St.  315;  Lowndes  v.  Chisolm,  2  McCord  Ch. 
4.55;  Hopkinson  v.  Stephenson,  1  J.  J.  Marsh.  341;  McCumber  V.  Gil- 
man,  15  111.  381;  Tharpe  f.  Feltz,  6  B.  Mon.  15;  Hidden  v.  Jordan,  28 
388 


CH.   XI.]  REMEDIES   INCIDENT   TO    MORTGAGES.  §    269 

the  States  that  where  lasting  and  permanent  improvements 
of  a  truly  beneficial  character  were  made  by  the  mortgagee 
in  possession,  or  by  a  purchaser,  under  the  mistaken  belief 
that  he  had,  by  foreclosure,  acquired  the  absolute  title,  he  will 
be  allowed  the  value  of  them,"^  This,  probably,  is  but  » 
deduction  from  the  general  betterment  laws,  which  have  been 
enacted  in  several  of  the  States.®^  Although  tlie  mortgagee  is 
not  obliged  to  purchase  a  superior  or  paramount  title  held 
by  a  third  person,  or  to  pay  the  taxes  due  upon  the  estate,  or 
to  effect  an  insurance  where  the  mortgage  requires  the  mort- 
gagor to  insure,  yet  if  he  does  any  of  these  acts  and  iucur§ 
expenses  for  the  protection  of  their  joint  interests  against 
such  forfeiture  or  loss,  he  will  be  permitted  to  charge  them 
against  the  mortgagor.^*  But  in  all  of  these  cases  the  claim 
for  reimbursement  is  against  the  mortgaged  property,  and 
not  a  personal  one  which  may  be  enforced  against  the  mort- 
gagor in  a  personal  action.^'     The  mortgagee,  however,  can- 

Cal.  301;  Neale  V.  Hagthorp,  3  Bland  Ch.  590;  Ballinger  r.  Choultan, 
20  Mo.  80;  Ford  r.  Pliilpot,  5  Har.  &  J.  312;  Miller  v.  Curry  (Ind.), 
24  X.  E.  Ikcp.  219,  374.  A  mortgagee  in  possession  cannot  cliarge  for 
repairs,  not  necessary  to  save  the  estate  from  loss  or  injury.  Barnard 
r.  Peterson  (Mich.  1904),  100  N.  W.  Rep.  893;  Wilmarth  v.  Johnson 
(Wis.   1905),  102  X.  W.  Rep.  562. 

52  Miner  v.  Bcekman,  50  X.  Y.  337;  Putnam  r.  Ritchie,  6  Paige  Ch. 
390;  Vanderhaise  V.  Hughes,  2  Beas.  410;  Harper's  Appeal,  04  Pa.  St. 
315;  Neale  v.  Hagthorp,  3  Bland  590;  Gillis  v.  Martin,  2  Dev.  Eq.  470;. 
Troost  V.  Davis,  31  Ind.  34;  Roberts  v.  Fleming,  53  111.  198;  McLorley 
V.  Larissa,   100  Mass.  270;  Bacon  v.  Cottrell,  13  Minn.   194. 

53  See  post,  Sec.   500. 

04  Clark  v.  Smith,  1  X.  J.  Eq.  421;  Muller  r.  Whittier,  36  Me.  577; 
Hubbard  v.  Shaw,  12  Allen  122;  Williams  v.  Hilton,  35  Me.  .547;  Slee 
r.  Manhattan  Co.,  1  Paige  Ch.  81;  Folny  r.  Palmer,  5  Gray,  649;  Dwis 
r.  Bean.  114  Mass.  .360;  Harper  v.  Ely,  70  111.  581;  Rowan  v.  Sharpe 
Rifle  Co..  29  Conn.  282;  Burr  r.  Vecder,  3  Wend.  412;  Miller  r.  Curry 
(Ind.).  24  X.  E.  Rep.  210,  .374;  Younpr  v.  Omohundro,  09  Md.  424; 
West  r.  Hayes.  117  Ind.  290;  MeCreery  r.  Shaffer  (Xeb.),  41  X.  W. 
Rep.  996.  A  n-ortgagee  is  not  liable  for  taxes.  Hood  f.  Clark  (.\la. 
1904).  .37  So.  Rep.  550;  McLaughlin  V.  Acorn,  58  Kan.  514,  .^O  Pac. 
Rep.  441. 

-  Kersenbrock  r.  Muff  (Xeb.),  45  N.  W.  Rep.  778;  Zabriskie  '•.  Barir 
distel    (X.  J.),  20  Atl.  Rep.  263. 

389 


§    270  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART    I. 

not  charge  for  his  personal  services  in  the  management  of 
the  estate;  but  if  it  is  necessary  to  employ  others — as,  for 
example,  a  person  to  collect  the  rents — he  will  be  allowed 
such  expenses.  And,  in  some  of  the  States,  notably  Massa- 
chusetts, he  is  allowed  a  commission  where  he  collects  them 
himself.  But  the  general  rule  is  that  he  will  not  be  permitted 
to  make  any  charge  for  his  own  services,  whatever  may  be 
their  nature."*" 

§  270.  Making  rests.— In  applying  the  rents  and  profits 
received  from  the  estate  the  mortgagee  may  first  deduct  there- 
from the  expenses  incurred  in  the  management  of  the  mort- 
gaged premises,  and  then  he  must  apply  the  remainder  to 
the  liquidation  of  the  interest  and  principal  of  the  debt  in 
that  order.  If,  in  making  the  account,  it  is  ascertained  that 
in  any  one  period — determined  by  the  time  when  the  interest 
falls  due — the  rents  and  profits  received  are  more  than  suffi- 
cient to  cover  the  expenses  and  the  accrued  interest,  the  bal- 
ance is  applied  to  the  principal ;  and  the  interest  subsequently 
accruing  is  computed  on  the  reduced  principal.  This  is  called 
making  a  rest.  And  rests  will  be  made  under  such  circum- 
stances as  often  as  the  interest  falls  due.''^ 

5«  And  any  agreement  that  he  shall  be  permitted  to  charge  for  such 
services  will  not  be  binding  upon  the  mortgagor.  French  v.  Barron,  2 
Atk.  120;  Gilbert  v.  Dyneley,  3  Man.  &  G.  12;  Eaton  v.  Simonds,  14 
Pick.  98;  Moore  V.  Cable,  1  Johns.  Ch.  38.5;  Elmer  v.  Loper,  25  N.  J. 
Eq.  475;  Breckenridge  v.  Brooks,  2  A.  K.  Marsh  335;  Benham  v.  Rowe, 

2  Cal.  387;  Harper  v.  Ely,  70  111.  381;  Snow  v.  Warwick  Institution  of 
Savings  (R.  I.),  20  Atl.  Rep.  94.  In  Massachusetts,  Connecticut,  Penn- 
sylvania and  Virginia,  the  mortgagee  may  charge  a  reasonable  percent- 
age, usually  5  per  cent.,  for  the  collection  of  the  rents.  Gerish  v.  Black, 
104  Mass.  400;   Waterman  V.  Curtis,  26  Conn.  241;  Wilson  v.  Wilson, 

3  Binn.  557;  Granberry  v.  Granberry,  1  Wash.  (Va.),  246;  Brown  V. 
South  Boston  Sav.  Bk.,  148  Mass.  300. 

57  Reed  v.  Reed,  10  Pick.  398;  Shaffer  v.  Chambers,  6  N.  J.  Eq.  548; 
Van  Vronker  v.  Eastman,  7  Mete.  538;  Connecticut  v.  Jackson,  1  Johns. 
Ch.  13;  Stone  v.  Se3Tnour,  15  Wend.  16;  Jencks  v.  Alexander,  11  Paige 
Ch.  619;  Gordon  V.  Lewis,  2  Sumn.  147;  Patch  r.  Wilde,  30  Beav.  100; 
Gladding  v.  Warner,  36  Vt.  54;  Knight  v.  Houghtaling,  91  N.  C.  246. 
390 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    272 

§  271.  Balance  due. —  If,  when  the  account  is  stated,  it  is 
found  that  there  is  a  balance  still  due  on  the  mortgage  to  the 
mortgagee,  a  decree  for  redemption  will  be  granted  upon  the 
payment  of  that  sum.  And  the  report  of  the  referee  or  mas- 
ter, when  confirmed  by  the  court,  is  conclusive  as  to  the 
amount  still  owing.  On  the  other  hand,  if  the  report  shows 
that  the  rents  and  profits  received  by  the  mortgagee  exceed 
the  expenses  and  the  amount  of  the  mortgage  combined,  re- 
demption will  be  decreed,  together  with  an  order,  directing 
the  mortgagee  to  pay  over  to  the  mortgagor  whatever  balance 
is  found  due  to  him.'** 

§  272.  Foreclosure  —  Nature  and  kinds  of. —  In  order  to 
bar  the  mortgagor's  equity  of  redemptioi;,  and  acquire  the 
absolute  title  to  the  property,  or  to  satisfy  his  debt  by  a  sale 
of  the  premises,  the  mortgagee  must  bring  an  action  for  fore- 
closure. And  the  action  lies  on  a  deed  which  is  absolute  on 
its  face,  as  soon  as  it  is  shown  that  it  was  intended  to  operate 
as  a  mortgage,  as  well  as  on  one  which  has  been  executed 
in  proper  form.®®  The  decree  in  such  a  case  bars  completely 
the  right  to  redeem.  There  are  two  principal  kinds  of  fore- 
closure, although  the  details  in  both  are  different  in  different 
States,  and  are  governed  more  or  less  by  local  statutes.  The 
more  ancient  kind  is  what  is  called  strict  foreclosure.  This 
is  an  action  in  which  a  decree  is  rendered  barring  the  mort- 
gagor's equity,  and  vesting  the  absolute  estate  in  the  mort- 
gagee, if  the  debt  is  not  paid  within  a  certain  time  after  the 
rendition  of  the  decree.  This  kind  of  foreclosure  is  generally 
resorted  to  in  the  New  England  States,  although  in  some  of 

BR  Pitman  V.  Thornton,  66  Me.  469;  Holt  V.  Roes,  46  111.  181;  Genish 
V.  Black,  122  Mass.  76;  Seaver  v.  Durant,  39  Vt.  103;  Bell  v.  Mayor  of 
N.  Y.,  10  Paip:e  Ch.  49;  Freytag  v.  Hoeland,  23  N.  J.  Eq.  36;  Wood 
V.  Felton,  9  Pick.  171. 

8»Lyon  V.  Powell,  78  Ala.  351.  When  it  is  shown  that  a  deed,  abso- 
lute in  form,  is  a  mortgage,  the  grantee,  until  foreclosure  of  the  equity 
of  redemption,  cannot  maintain  ejectment.  Faulkner  v.  Cody,  91  N.  Y. 
S.  633. 

391 


§    272  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART   I. 

them — particularly  Massachusetts — the  form  of  the  proceed- 
ing has  been  somewhat  changed  from  the  old  common-law 
foreclosure.  But  the  decree  is  essentially  the  same.""  By 
strict  foreclosure,  if  the  mortgagee  is  out  of  possession,  he 
may  recover  the  possession  in  an  action  of  ejectment."^  The 
other  so-called  equitable  foreclosure  is  effected  by  a  decree 
ordering  the  property  to  be  sold,  and  the  proceeds  of  sale 
applied  to  the  payment  of  the  expense  of  the  foreclosure  suit 
and  sale  of  the  property,®^  and  the  liquidation  of  the  mort- 
gage-debt. If  any  surplus  remains,  it  is  paid  over  to  the 
mortgagor  and  his  assigns,®^  and  the  junior  incumbrancers 
will  be  entitled  to  share  in  the  surplus  in  the  order  of  their 
equities."*     This  mode  of  foreclosure  is  juster  and  fairer  to 

80  In  Massachusetts,  Maine  and  New  Hampshire,  the  action  for  strict 
foreclosure  is  called  a  writ  of  entry,  in  form,  an  action  at  law,  but  in 
effect,  an  equitable  proceeding.  Gen.  Stat.  Mass.,  Ch.  140,  Sees.  1-11; 
Me.  Rev.  Stat.,  Ch.  90;  Gen.  Stat.  N.  H.,  Chs.  112,  213;  Bartlett  v. 
Sanborn,  64  N.  H.  70;  Snow  v.  Piessey,  82  Me.  552.  But  in  addition 
to  this  action,  a  strict  foreclosure  may  be  effected  in  the  New  England 
States,  by  entry  into  possession  after  condition  broken,  with  a  formal 
notice  to  the  mortgagor,  attested  by  witnesses,  that  the  entry  is  for 
the  purpose  of  foreclosure.  Generally  this  notice  is  also  required  to  be 
published  in  the  newspapers,  and  a  certificate  of  the  entry  recorded  in 
the  general  recording  office.  And  after  the  lapse  of  a  certain  time, 
fixed  by  the  statute,  usually  three  years,  the  equity  of  redemption  is 
foreclosed  without  any  resort  to  the  courts.  2  Jones  on  Mort.,  Sees. 
1237-1275. 

«i  Kershaw  r.  Thompson,  4  Johns.  Ch.  609 ;  Schenck  v.  Conover,  13  N. 
J.  L.  220;  Sutton  v.  Stone,  2  Atk.  101.  But  the  decree  in  strict  fore- 
closure may  include  an  order  to  the  mortgagor  to  vacate  the  premises, 
and  then  it  will  not  be  necessary  for  the  mortgagee  to  resort  to  his 
legal  remedies.  Kendall  v.  Treadwell,  5  Abb.  Pr.  76;  Buswell  r.  Peter- 
son, 41  Wis.  82. 

«2  Castle  r.  Castle  (Mich.),  44  N.  W.  Rep.  378;  Snow  v.  Warwick 
Institution  for  Savings  (R.  I.),  20  Atl.  Rep.  94;  Barry  v.  Guild,  25  111. 
App.  .39;  Moran  v.  Gardemeyer,  82  Cal.  96;  Tefford  v.  Garnell  (111.), 
24  N.  E.  Rep.  573;  Casler  r.  Byers,  28  111.  App.  128;  s.  c.  129  111.  657; 
Balfour  v.  Davis,  14  Ore.  47;  Schallard  v.  Eel  River,  etc.,  Co.,  70  Cal. 
144. 

03  Mitchell  v.  Weaver,  118  Ind.  55. 

6* Armstrong  v.  Warrington,  111  111.  430.  A  decree  of  foreclosure 
392 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §   272 

all  parties,  and,  very  probably,  everywhere  in  this  country, 
except  the  New  England  States,  foreclosure  is  always  made 
by  a  sale  of  the  premises,  even  though  the  right  to  a  strict 
foreclosure  may  still  exist.®''  Courts  of  equity  will  exercise 
their  ordinary  power  of  discretion,  and  will  order  a  sale  of 
the  premises  whenever  a  strict  foreclosure  would  be  mani- 
festly to  the  detriment  of  the  mortgagor.  •'*'  A  bill  for  fore- 
closure may  be  filled  at  any  time  after  the  breach  of  the 
condition,  provided  the  action  has  not  been  barred  by  the 
Statute  of  Limitations,  the  same  time  being  given  for  actions 
of  foreclosure,  as  for  actions  of  ejectment."^     The  condition 

should  provide  for  the  disposition  of  the  surplus,  after  payment  of  the 
mortgage  debt.  Griffin  v.  Smith,  82  S.  W.  Rep.  684.  But  it  is  not 
error  to  fail  to  do  so.  Brier  v.  Brinkman,  44  Kan.  570,  24  Pac.  Rep. 
1108. 

85  Strict  foreclosures  are  regarded  with  disfavor  by  the  courts,  in 
all  cases  where  a  decree  of  foreclosure  and  sale  can  be  equitably  ren- 
dered. South  Omaha  Bank  v.  Levy,  95  N.  W.  Rep.  G03;  State  ex  rel 
Wyandotte  Lodge  v.  Evans,  17G  Mo.  310,  75  S.  W.  Rep.  914. 

6«  In  most  of  the  States  there  are  statutes  authorizing  foreclosure  by 
sale  of  the  premises,  but  they  are  only  confirmatory  of  the  power  which 
a  court  of  equity  always  possessed.  Lansing  v.  Goelet,  9  Cow.  352; 
Mills  V.  Dennis,  3  Johns.  Ch.  367;  William's  Case,  3  Bland  Ch.  193; 
Hinds  V.  Allen,  34  Conn.  193;  McCurdy's  Appeal,  65  Pa.  St.  290;  Shaw 
V.  Norfolk  Co.  R.  R.,  5  Gray  162;  Green  r.  Crockett.  2  Dev.  &  B.  Eq. 
393;  Fox  V.  Wharton,  5  Del.  Ch.  200.  Strict  foreclosure  is  recognized 
now  in  Alabama,  Florida,  Illinois,  Maryland,  Minnesota  and  New  York, 
but  it  is  only  used  in  special  cases,  and  is  generally  looked  upon  as  a 
severe  remedy.  Hitchcock  v.  U.  S.  Bank  of  Pa.,  7  Ala.  386;  R.  S.  111. 
(1877),  pp.  120,  540;  Dorsey  v.  Dorsey,  30  Md.  522;  Wilder  p.  Haughey, 
21  Minn.  101;  Bolles  v.  Duff,  43  N.  Y.  474;  Greisbaum  r.  Baum,  18  111. 
App.  614;  Ellis  V.  Leek,  127  111.  60.  In  the  other  States  it  does  not 
seem  to  be  at  all  applicable.  O'Fallon  v.  Clopton,  89  Mo.  284,  In  all 
the  States  the  foreclosure  of  mortgages  is  regulated  by  statute  and  they 
differ  widely  as  to  details.  See  2  Jones  on  Mort.,  Sees.  1317-1368, 
where  the  distinguishing  features  of  the  statutory  remedies  are  fully 
and  accurately  presented. 

«T  Smith  V.  Woolfolk,  115  U.  S.  143;  McLaughlin  v.  Cecconi,  141 
Mass.  252;  Palmer  v.  Snell,  111  111.  161.  But  see  contra,  Clough  v. 
Rowe,  63  N.  H.  562.  Twenty  years'  delay  will  not  prevent  foreclosure 
unless,  by  statute,  limitation  would  apply  to  the  mortgage,     Bailey  v. 

393 


§    272  REMEDIES   INCroENT   TO    MORTGAGES.  [PART   I. 

is  broken  when  the  debt  fcills  due.  In  other  words,  suit  for 
foreclosure  can  be  brought  as  soon  as  an  action  at  law  will 
lie  on  the  debt."*  The  mortgage  may  be  made  to  fall  due 
upon  the  default  in  the  payment  of  an  installment  of  interest 
or  principal,  and  the  mortgage  may  then  be  foreclosed  for  the 
entire  debt,  although  the  time  for  payment  has  not  yet  ar- 
rived, unless  it  is  expressly  provided  that  the  default  in  pay- 
ment of  interest  or  installment  of  principal  will  not  give  the 
right  to  foreclose.*'"  But  where  it  is  not  provided  that  the 
entire  debt  shall  fall  due  upon  the  default  in  interest  or  in 
installments  of  principal,  there  may  yet  be  given  the  right 
of  foreclosure  for  the  purpose  of  enforcing  payment  of  the 
interest  or  installment  of  principal  which  is  due,  by  the  sale 
of  so  much  property  as  is  necessary,  and  a  subsequent  sale 
cf  the  remaining  property  when  the  rest  of  the  debt  falls 
due.'"     The  mortgage  may  also  provide  that  the  default  in 

Butler  (Ala.  1903),  35  So.  Rep.  111.  But  see,  in  Missouri,  R.  S.  1899, 
Sec.  4276. 

OS  Gladwyn  v.  Hitchman,  2  Vern.  134;  Harding  v.  Mill  River  Co.,  34 
Conn.  458;  Giles  v.  Baremore,  5  Johns.  Ch.  545;  Hughes  v.  Edwards,  9 
Wheat.  489;  Blethen  v.  Dwindal,  35  Me.  556;  Tripe  v.  Marcy,  39  N.  H. 
439;  Gillett  v.  Baleom,  6  Barb.  370;  Williams  v.  Townsend,  31  N.  Y. 
411;  Fetrow  v.  Merriwether,  53  111.  275;  Pope  v.  Durant,  26  Iowa  233; 
Brown  v.  Miller,  63  Mich.  413;  Ohio  Cent.  R.  R.  Co.  v.  Central  Trust 
Co.,  133  U.  S.  83;  Leonard  V.  Binford,  122  Ind.  200,  23  N.  E.  Rep.  704; 
Orr  V.  Rode  (Mo.),  13  S.  W.  Rep.  1066;  Curtis  v.  Cutler,  37  L.  R.  A. 
737;  Central  Trust  Co.  V.  N.  Y.  &  N.  R.  Co.,  33  Hun  513;  L.  I.  L.  &  T. 
Co,  V.  L.  I.  &  N.  R.  Ca,  82  N.  Y.  S.  644,  85  App.  Div.  36. 

69  Stanhope  v.  Manners,  2  Eden  197 ;  Richards  v.  Holmes,  18  How. 
143;  Seaton  v.  Twyford,  L.  R.  11  Eq.  591;  Burrowes  V.  Malloy,  2  Jones 
&  Lat.  521;  Sire  V.  Wightman,  25  N.  J.  Eq.  102;  Terry  v.  Eureka  Col- 
lege, 70  111.  236;  Harshaw  V.  McKesson,  66  N.  C.  266;  Magruden  V. 
Eggleston,  41  Miss.  284;  Schooley  V.  Romain,  31  Md.  574;  Hosie  V. 
Gray,  71  Pa.  St.  198;  Adams  v.  Essex,  1  Bibb.  149;  Goodman  r.  Cin. 
&  C.  C.  R.  R..  2  Disney  176.  See  Poweshiek  Co.  V.  Dennison,  36  Iowa 
352,  19  Am.  Rep.  521;  Hoodless  V.  Reid,  112  111.  105;  Scheibe  v.  Ken- 
nedy. 64  Wis.  564. 

""Bank  of  Ogdensberg  f.  Arnold,  5  Paige  38;  Caufman  r.  Sayre,  2 
B.  Mon.  202;  Magruder  v.  Eggleston,  41  Miss.  284;  Poweshiek  Co.  V. 
Dennison,  36  Iowa  254;  Johnson  v.  Buckhaults,  77  Ala.  276;  Cleveland 
394 


CH.    XI.]  REMEDIES   INCIDENT   TO    MORTGAGES.  §    273 

payment  of  the  interest  or  installment  of  principal,  may 
cause  the  entire  debt  to  fall  due,  "at  the  election  of  the  mort- 
gagee."^^ In  such  a  case  the  mortgagee  is  not  obliged  to 
make  his  election  immediately  after  the  default.^-  And  like 
the  action  on  the  debt,  it  is  not  dependent  upon  any  pre- 
vious demand  of  payment  or  notice  of  intention  to  bring  the 
action.^^  The  time  for  foreclosure  may  be  postponed  by  an 
agreement  for  forbearance,  if  the  agreement  is  supported  by 
a  valuable  consideration.  The  foreclosure  can  under  these 
circumstances  only  be  brought  at  the  close  of  the  time  for  for- 
bearance.^* 

§  273.  Continued  —  Who  should  be  made  parties?  —  Gener- 
ally all  persons  should  be  made  parties  to  a  suit  for  fore- 
closure who  are  interested  in  the  mortgage  or  mortgaged 
property.  The  holder  of  the  equity  of  redemption,  subse- 
quent purchasers,  and  junior  mortgagees,  must  always  be 
made  parties,  including  any  one  in  possession,  whatever  may 
be  his  title.^*     But  a  vendee,  under  an  executory  contract  of 

V.  Booth,  43  Minn.  16;  Fox  r.  Whaston,  5  Del.  Ch.  200;  Bacon  f.  N. 
W.,  etc.,  Inc.  Co.,  131  U.  S.  258;  Anderson  f.  Pilgram,  30  S.  C.  499; 
Kempner  v.  Comer,  73  Tex.  196;  Bank  of  Napa  v.  Godfrey,  77  Cal.  612. 

71  Randolph  v.  Middleton,  26  N.  J.  Eq.  543 ;  Harper  r.  Ely,  56  111. 
179;  Princeton,  etc.,  Co.,  t?. -Mynson,  60  111.  371;  Bosse  v.  Gallagher,  7 
Wis.  442, 

72  Wheeler  &  Wilson,  etc.,  Co.,  v.  Howard,  28  Fed.  Rep.  741.  Filing 
suit  in  foreclosure  is  generally  held  sufficient  evidence  of  the  mort- 
gagee's election  to  regard  the  debt  due,  on  default  in  any  interest  pay- 
ment, where  this  is  the  condition  of  the  mortgage.  Holdroff  v.  Renlee, 
105  111.  App.  671. 

73 Manning  r.  Elliott,  92  N.  C.  48;  Maxwell  f.  Newton,  65  Wis.  261. 

74  Chiles  r.  Wallace,  83  Mo.  84. 

75Ruyter  r.  Reid  (N.  Y.),  24  N.  E.  Rep.  791;  Finley  f.  U.  S.  Bank, 
11  Wheat.  304;  Caldwell  r.  Taggart,  4  Pet.  190;  McCall  V.  Yard,  9  N. 
J.  Eq.  3.58;  Goodrich  r.  Staples,  2  Cush.  258;  Webster  r.  Vandeventer, 
6  Gray  428;  Williamson  V.  Field,  2  Sandf.  Ch.  533;  Vanderkamp  f. 
Shelton,  11  Paige  Ch.  28;  Winslow  f.  Claik,  47  N.  Y.  261;  Haines  r. 
Beach,  3  Johns.  Ch.  459;  Bates  r.  Miller.  48  Mo.  409;  Colter  r.  Jones, 
52  111.  84;  Lyon  r.  Powell,  98  Ala.  .331;  Bobbles  r.  Munncrlyn.  83  Ga. 
727;  Johnston  r.  McDulTce,  83  Cal.  30;  Ostrander  r.  Hart,  8  X.  Y.  S. 

395 


§    273  .  REMEDIES   INCIDENT   TO    MORTGAGES.  [PART   T. 

sale,  is  not  a  necessary  party;  he  becomes  a  necessary  party 
only  when  he  receives  a  deed  of  conveyance.''®  So,  also,  is 
it  unnecessary  to  make  a  contingent  remainderman,  who  takes 
subject  to  the  mortgage,  a  party  to  the  foreclosure  suit." 
The  assignee  of  a  junior  incumbrance  must  be  made  a  party 
in  the  place  of  the  original  junior  mortgagee,  and  a  decree 
of  foreclosure  against  the  latter  would  not  have  any  effect 
upon  the  right  of  redemption  of  the  assignee,  who  has  not 
been  made  a  party  to  the  suit  for  foreclosure.^^  But  one 
who  purchases  the  equity  during  the  pendency  of  the  suit 
takes  the  mortgagor's  interest  subject  to  the  decree,  and 
need  not  be  made  a  party,  unless  this  is  required  by  statute, 
as  is  the  case  in  some  of  the  States.'^®  It  has  also  been  held 
in  some  States  that  a  prior  mortgagee  should  be  made  a 
party.  Making  a  prior  mortgagee  a  party  is  equivalent  to  in- 
stituting an  action  for  redemption.*"  But  by  the  weight  of 
authority,  prior  mortgagees  and  grantees  are  not  necessary, 

80J);  Watts  r.  Julian,  122  Ind.  124;  Armstrong  V.  Warrington,  111   111. 
430;  Mendenhall  v.  Hall,  134  U.  S.  559;  Richards  V.  Thompson,  43  Kan. 
209 ;   but   see  Cooper  V.  Loughlin,   75  Tex.   524,   where  it  is  held  tliat 
beneficiaries  of  a  trust  property  need  not  be  joined,  if  the  trustee  is. , 
To  same  effect  see,  Harlem  Co-op.  Bldg.  &  Loan  Assn.  v.  Quinn,   10  N. 
Y.   S.   682;    United   States   Trust   Co.   v.   Roache,   116  N.  Y.   120.     See 
Douthit   V.   Hipp,   23    S.    C.   205.     Holders   of   subsequent   liens,    or   of 
equity  of  redemption  are  necessary  parties  to  suit  to  foreclose.     Dick- 
inson V.  Duckworth    (Ark.  1905),  85  S.  W.  Rep.  82. 
76Stanbrough  t".  Daniels,  77  Iowa  561. 
T"  Townshend   r.  Frommer,   125  N.  Y.  44G. 
78  Bigelow  r.  Stringfellow,  25  Fla.  366. 

70  Smith  V.  Davis  (N.  J.).  19  Atl.  Rep.  541;  Lloyd  v.  Passingham.  16 
Ves.  66;  Parkes  V.  White,  11  Ves.  236;  Watt  v.  Watt,  2  Barb.  Ch.  371; 
Jackson  v.  Losse,  4  Sandf.  Ch.  387;  Ostrom  v.  McCann,  21  How.  Pr. 
431;  McPherson  v.  Honsel,  13  N.  J.  Eq.  299;  Loomis  v.  Stuyve-^ant.  10 
Paige  Ch.  490;  Crooker  V.  Crooker,  57  Me.  396;  Haven  v.  Adams,  8 
Allen  367;  Poston  v.  Eubank,  3  J.  J.  Marsh.  43;  Bennett  V.  Calhoun 
Assn.,  9  Rich.  Eq.  163;  Dickson  V.  Todd,  43  HI.  507;  Gordon  r.  Lee, 
102  Ind.  125;  Tiemey  v.  Spiva,  97  Mo.  98;  Wise  V.  Griffith.  78  Cal.  152. 
sf'Hudnit  r.  Nash,  16  N.  J.  Eq.  5.50;  Finley  v.  U.  S.  Bk.,  11  Wheat. 
306;  Stanish  r.  Dow.  21  Iowa  363;  Shiveley  V.  Jones,  6  Mon.  274; 
Redin  v.  Branhan,  43  Mich,  283. 

396 


CH.    XI.]  REMEDIES   INCIDENT   TO    MORTGAGES.  §    273 

and  hardly  proper  parties.®^  But  it  may  be  stated  that 
wherever  the  mortgage  is  to  be  foreclosed  by  a  sale  of  the 
premises,  the  prior  mortgagee  may  be  joined  in  the  suit, 
though  he  is  not  a  necessary  party ;  it  is  also  advisable  to  do 
so,  since  without  him  the  property  can  only  be  sold  subject 
to  his  outstanding  mortgage.**'^  Although  in  some  of  the 
States  the  wife  of  the  holder  of  the  equity  is  not  held  to  be  a 
necessary  party,  it  is  best  always  to  make  her  one,  and  in  the 
cases  cited  below  it  has  been  held  to  be  necessary.**^  Whether 
judgment-creditors  should  be  made  parties  has  been  differ- 
ently decided  in   different   States.**     Where   the  mortgagor 

81  Jerome  r.  Carter,  94  U.  S.  734;  Kay  v.  Whittaker,  44  X.  Y.  505. 
But  see  Morris  v.  Wheeler,  45  N.  Y.  708;  Tome  r.  Loan  Co.,  34  Md.  12; 
Boge}'  r.  Shute,  4  Jones  Eq.  174;  Crawford  v.  Munford,  29  111.  App. 
445;  Hague  V.  Jackson,  71  Tex.  7C1.  The  owner  of  a  senior  mortgage 
need  not  be  joined,  in  a  suit  to  foreclose  by  a  junior  mortgagee,  in 
Texas.     Garza  f.  Howell,  85  S.  W.  Rep.  4G1. 

82  Holcomb  f.  Holconib,  2  Barb.  20;  Vanderkomp  f.  Shelton,  11  Page 
Ch.  28;  Howard  v.  Handy,  35  N.  H.  315;  Wood  v.  Oakley,  11  Paige  Ch. 
400;  Ducker  r.  Belt,  34  Md.  Ch.  13;  Hagan  r.  Walker,  14  How.  37; 
Chaplin  r.  Foster,  7  B.  Mon.  104;  Clark  v.  Prentice,  3  Dana  468;  Troth 
V.  Hunt,  8  Blackf.  580;  Rucks  v.  Taylor,  49  Miss.  552;  Minis  v.  Mims, 
1  Humph.  425;  Rowan  f.  Mercer,  10  Humph.  359;  Hague  v.  Jackson,  71 
Tex.  7G1. 

83  That  is  necessary  when  her.  dower  right  is  subject  to  the  mortgage. 
Mills  r.  Van  Voorhies,  28  Barb.  125;  s.  c.  20  N.  Y.  412;  Merchants'  Bk. 
V.  Thomson,  55  N.  Y.  7;  Mooney  i\  Maas,  22  Iowa  380;  Byrne  v.  Tay- 
lor, 40  Miss.  95;  Foster  v.  Hickox,  38  Wis.  408;  Tadlock  r.  Eccles,  20 
Texas  783;  Anthony  t'.  Nye,  30  Cal.  401.  But  see  Eslana  v.  Le  Petre, 
21  Ala.  504;  Fletcher  v.  Holmes,  32  Ind.  497;  Amphlett  V.  Hibbard,  29 
Mich.  298;  Etheridge  V.  Vernoy,  71  N.  C.  184;  Kur^heedt  V.  Union 
Dime  Sav.  Inst.,  118  N.  Y.  358;  Barr  V.  Van  Alstine,  120  Ind.  590. 
But  where  she  has  not  joined  in  the  execution  of  the  mortgage,  she 
cannot  be  made  a  party,  so  as  to  bar  her  dower  right,  unless  there  is 
some  special  defense  to  her  claim.  Brackett  v.  Baum,  50  N.  Y.  8;  Bell 
r.  Mayor  of  N.  Y.,  10  Paige  Ch.  49;  Merchants'  Bk.  v.  Thomson,  55 
N.  Y.  7;  Baker  V.  Scott,  62  111.  86;  Heth  v.  Cocke,  1  Rand.  344;  Foster 
V.  Hickox,  38  Wis.  408;  Sheldon  v.  Patterson,  55  111.  507.  Where  the 
mortgage  was  executed  by  a  husband  and  wife,  the  wife  is  a  necessary 
party  to  the  foreclosure  suit.  Franklin  v.  Beegle,  92  N.  Y.  S.  449,  102 
App.  Div.  412;  Sloane  r.  Lucas  (Wash.  1905),  79  Pac.  Rep.  949. 

s^Tbat  they  must  be,  in  order  to  extinguish  their  equity  of  redemp- 

397 


§    273  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART   I. 

has  parted  with  his  entire  interest  in  the  premises  he  is  not 
a  necessary  party,  but  he  may  be  joined,  and  must  be,  if 
the  mortgagee  wishes  to  obtain  a  personal  judgment  against 
him  in  the  same  suit  for  the  balance  of  the  debt  left  unsatis- 
fied by  a  sale  of  the  mortgaged  property.^'*  If,  however,  the 
assignment  has  not  been  recorded,  and  the  mortgagee  does 
not  know  of  the  assignment  of  the  equity  of  redemption,  it 
is  not  necessary  to  make  the  assignee  a  party.  His  interest 
is  barred  by  foreclosure.**  But  the  mortgagor's  surety  or 
guarantor  is  not  a  proper  party  to  an  action  for  foreclosure, 
A  personal  judgment  against  him  can  only  be  obtained  in 
a  suit  at  law.®'  Where  the  mortgagor  is  dead,  his  heirs  and 
his  widow  must  be  made  parties,  and  his  personal  representa- 
tives need  be,  only  when  a  judgment  against  the  mortgagor's 
estate  for  the  balance  is  desired,  except  in  Missouri,  where 
they  are  by  statute  required  to  be  parties  in  every  case.** 

tion,  see  Adams  v.  Taynter,  1  Coll.  530;  Sharpe  v.  Scarborough,  4  Ves. 
538;  Gaines  r.  Walker,  IG  Ind.  361.  So  also,  a  subsequently  attaching 
creditor.  Lyon  r.  Sanford,  5  Conn.  544;  Bullard  V.  Leach,  27  Vt.  49L 
But  in  the  following  cases,  judgment-creditors  are  held  not  to  be  neces- 
sary parties.  Downer  v.  Fox,  20  Vt.  388;  Felder  v.  Murphy,  2  Rich. 
Eq.  58;  Mims  V.  Mims,  I  Humph.  425;  Van  Dyne  V.  Shaun,  41  N.  J. 

L.  3n. 

ssLockwood  V.  Benedict,  3  Edw.  Ch.  472;  Drury  v.  Clark,  16  How. 
Pr.  424;  Heyer  v.  Pruyn,  7  Paige  Ch.  465;  Andrews  v.  Steele,  22. N.  J. 
Eq.  478;  Wilkins  V.  Wilkins,  4  Port.  245;  Shaw  v.  Hoadley,  8  Blackf. 
165;  Heyman  v.  Lowell,  23  Cal.  106;  Dickerman  t;.  Lust,  66  Iowa  444. 
But  see  Bigelow  v.  Bush,  6  Paige  Ch.  343 ;  Buchanan  v.  Munroe,  22 
Texas  557.  Nor  are  purchasers  of  the  equity  of  redemption  necessary 
or  proper  parties  after  they  have  assigned  it.  Soule  V.  Albee,  31  Vt. 
142;  Lockwood  v.  Benedict,  3  Edw.  Ch.  472;  Hall  v.  Yoell,  45  Cal.  584. 

88  Dickerman  v.  Lust,  56  Iowa  444. 

87  Walsh  V.  Vanhorn,  22  111.  App.  170. 

88  Farmer  v.  Curtis,  2  Sim.  466;  Bradshaw  v.  Outram,  13  Ves.  234; 
Wood  V.  Moorhouse,  1  Lans.  405;  Graham  v.  Carter,  2  Hen.  &  M.  6; 
Worthington  V.  Lee,  2  Bland  Eq.  678;  Mayo  v.  Tomkins,  6  Munf.  52; 
Boyce  v.  Bowers,  11  Rich  Eq.  41;  Averett  v.  W^ard,  Busb.  Eq.  192; 
Mclver  v.  Cherry,  8  Humph.  713;  Bissell  v.  Marine  Co.,  55  111.  165; 
Shively  v.  Jones,  6  B.  Mon.  274;  Byrne  v.  Taylor,  46  Miss.  95;  Slaugh- 
ter V.  Foust,  4  Blackf.  379;  Hogden  v.  Heidman,  66  Iowa  645;  Richards 

398 


en.    XI.]  REMEDIES   INCIDENT   TO    MORTG.VGES.  §    274 

§  274.  Parties  to  foreclosure  —  Contintied. —  All  persons  — 
such  as  joint  mortgagees,  assignees,  etc.,  whether  their  interest 
be  legal  or  equitable — who  are  interested  in  the  mortgage 
or  mortgage-debt,  should  join  in  the  suit  as  parties  plaintiff. 
But  if  any  should  refuse  they  must  be  made  defendants."" 
One  not  interested  in  the  mortgage  which  is  to  be  foreclosed 
cannot  be  a  party  plaintiff.  A  junior  judgment-creditor  can- 
not compel  the  foreclosure  of  the  senior  mortgage.  His  only 
remedy  is  the  redemption  of  the  mortgage.""  Where  the 
mortgagee  has  assigned  the  mortgage  and  debt  absolutely,  the 
assignee  is  the  proper  party  to  bring  the  suit,  and  the  mort- 
gagee need  not  join ;  but  he  is  a  necessary  party,  if  the  as- 
signment is  only  conditional."^  But  if  the  mortgagee  has 
only  assigned  one  of  two  or  more  debts,  secured  by  the  same 
mortgage,  he  can  institute  the  action,  making  the  assignee 
a  party  defendant,  if  he  refuses  to  join  as  party  plaintiff."^ 

r.  Thompson,  43  Kan.  209;  Weir  v.  Field  (^liss.),  7  So.  Rep.  355.  But 
in  Georgia  and  Missouri  the  personal  representatives  are  necessary  par- 
ties. Dixon  V.  Cuyler,  77  Ga.  248;  Magruder  v.  OfTut,  Dudley  227; 
Perkins  v.  Woods,  27  Mo.  547;  Hall  v.  Klepzig,  99  Mo.  83.  The  holder 
of  a  known  unrecorded  deed,  is  not  a  necessary  party,  to  a  suit  to 
foreclose,  in  California.  Hager  V.  Astorg,  145  Cal.  548,  79  Pac.  Rep.  68. 
But  see  contra,  Hodson  V.  Treat,  7  Wis.  263. 

80  Carpenter  v.  O'Dougherty,  58  N.  Y.  681;  Noyes  f.  Sawyer,  3  Vt. 
100;  Stucker  i'.  Stucker,  3  J.  J.  Marsh.  301;  Shirkey  f.  Hanna,  3 
Blackf.  403;  Goodall  V.  Mopley,  45  Ind.  355;  Johnson  v.  Brown,  31  N. 
H.  405;  Jenkins  v.  Smith,  4  Mete.  (Ky.)  380;  Bell  v.  Shrock,  2  B. 
Mon.  29;  Hartwell  v.  Blocker,  6  Ala.  581;  Graydon  v.  Church,  7  Mich. 
51;  Saunders  v.  Frost,  5  Pick.  259;  Wiley  v.  Pierson,  23  Texas,  486; 
Webster  v.  Vandeventer,  6  Gray  428;  Hopkins  V.  Ward,  12  B.  Mon.  185; 
Beals  V.  Cobb,  51  Me.  349;  Lambert  v.  Hyers,  22  HI.  App.  616.  But  in 
Rankin  r.  Major,  supra,  and  Thayer  v.  Campbell,  supra,  it  was  held 
that  the  holder  of  one  of  two  notes  secured  by  the  same  mortgage  may 
sue  alone. 

00  Kelly  V.  Longshore,  78  Ala.  203. 

01  Whitney  V.  McKinney,  7  Johns.  Ch.  144;  Miller  i".  Henderson,  10 
N.  J.  Eq.  320;  Newman  V.  Chapman,  2  Rand.  93;  Kittle  t;.  Van  Dyck, 
win,  9  Ves.  264;  Gage  r.  Stafford,  1  Vea.  Sr.  544;  Sowles'  Trustee  V. 
Buck  (Vt.),  20  Atl.  Rep.  146;  Smythe  V.  Brown,  25  S.  C.  89;  Haven  V. 
Lyons,  9  N.  Y.  S.  211 ;  Stigcr  v.  Bent,  111  111.  328. 

•2  Boone  v.  Clarke,  129  111.  466. 

399 


§    274  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART    I. 

But  whether  the  assignee  of  the  debt  can  bring  the  suit  in- 
dependently of  the  mortgagee  or  legal  holder  of  the  mort- 
gage, depends  upon  the  construction  given  by  the  courts  to 
the  effect  of  such  an  assignment.  At  common  law  the  holder 
of  the  legal  title  to  the  mortgage  must  institute  the  suit  as 
trustee  for  the  assignee  of  the  debt,  while,  under  the  lien 
theory  in  those  States,  where  the  assignment  of  the  debt  is 
held  to  work  an  equitable  assignment  of  the  mortgage,  the 
assignee  may  maintain  the  suit  in  equity  without  joining  the 
legal  owner  of  the  mortgage.  In  other  States,  where  the 
assignment  of  the  debt  is  held  to  transfer  the  legal  as  well 
as  the  equitable  title  to  the  mortgage,  the  assignee  may  main- 
tain all  suits,  both  in  law  and  equity."^  It  is  now  the  general 
rule  in  this  country,  that  upon  the  death  of  the  mortgagee 
the  mortgage  descends  with  the  debt  to  the  personal  repre- 
sentatives, and  they  must,  consequently,  be  the  plaintiffs  in 
a  suit  for  foreclosure.***  If  the  mortgage  be  given  to  two 
jointly  to  secure  a  joint  debt,  the  survivor  is  the  proper 
party  plaintiff,  and  the  deceased  mortgagee's  representatives 
are  not  necessary  parties.  But  if  the.  joint  mortgage  is  given 
for  two  separate  debts,  the  rule  is  different;  both  the  sur- 

i>3  Austin  r.  Burbank,  2  Day  476 ;  Stone  v.  Locko,  46  Me.  445 ;  Moore 
V.  Ware,  38  Me.  496;  Calhoun  V.  Tullass,  35  Ga.  119;  Story  Eq.  PI., 
Sees.  201-209;  Martin  v.  McReynolds,  6  Mich.  70;  see  ante.  Sees.  250, 
251.  And  in  the  Code  States  it  is  expressly  provided  that  all  actions 
should  be  prosecuted  in  the  name  of  the  real  party  in  interest.  Under 
this  provision,  whether  the  assignee  be  considered  a  legal  or  only  an 
equitable  owner  of  the  mortgage,  in  either  case  he  is  the  proper  party 
to  institute  the  suit  for  foreclosure.    2  Jones  on  Mort.,  Sec.  1370. 

04  Kinna  v.  Smith,  3  N.  J.  Eq.  14;  Dewey  V.  Van  Dusen,  4  Pick.  19; 
Worthington  V.  Lee,  2  Bland  678 ;  Eatliff  V.  Davis,  38  Miss.  107 ;  Grat- 
tan  r.  Wiggins,  23  Cal.  16;  Comp.  Laws  Mich.  (1871),  1393;  Rev.  Stat. 
Wis.  (1871),  1223;  Rev.  Stat.  Ohio,  Ch.  43,  Sec.  66;  Citizens'  Bank  v. 
Dayton,  116  111.  257.  Contra,  Etheridge  V.  Verney,  71  N.  C.  174;  Mc- 
Iver  V.  Cherry,  8  Humph.  713.  But  if  the  mortgagee's  heir  is  in  pos- 
session he  must  be  made  a  party.  Osborne  V.  Tunis,  25  N.  J.  L.  633; 
Huggins  V.  Hall,  10  Ala.  283;  Gilkerson  v.  Thompson,  210  Pa.  355,  59 
Atl.  Rep.  1114. 

400 


ClI.    XI.  J  REMEDIES   INCIDENT   TO    MORTGAGES.  §    2 .  > 

vivor  and  the  representatives  of  the  deceased  must  join  in 
the  suit,  and  either  may  institute  the  proceedings."^ 

§  275.  Effect  of  decree  in  foreclosure  upon  the  land. —  A 
decree  in  foreclosure  bars  the  interest  in  the  land  of  the 
mortgagor,  and  all  claiming  under  him  who  have  been  made 
parties  to  the  suit.  It  will  have  no  effect  upon  the  interest 
of  any  one  who  is  not  a  party,  and  as  to  him  the  ef^uity  of 
redemption  continues  to  exist.""  A  mortgagee  in  possession 
under  a  defective  foreclosure  is  not  in  any  sense  a  trespasser 
but  he  holds  the  possession  in  the  character  of  a  mortgagee.'"^ 
And  if  the  foreclosure  is  defective  because  one  who  had  a 
right  to  redeem  had  not  been  made  a  party,  the  only  remedy 
for  such  a  person  against  the  purchaser  is  an  action  for  re- 
demption. He  cannot  maintain  an  action  for  possession  be- 
fore redemption.®*  So,  also,  if  a  junior  incumbrancer,  non- 
resident, has  been  made  a  party  by  service  by  publication, 
without  receiving  actual  knowledge  of  the  pendency  of  the 
suit,  the  court  may  in  its  discretion  re-open  the  foreclosure 

«5  Blade  r.  Sanborn,  8  Gray  184;  Williams  r.  Hilton.  :5r)  Mc.  .147; 
Lannay  r.  Wilson,  30  Md.  536;  Milroy  r.  Stockwell,  1  Cart.  (Ind.)  35; 
Minor  v.  Hill,  58  Ind.  176,  26  Am.  Rep.  71.  Contra,  if  the  debt  is  sev- 
eral or  there  are  conflicting  claims.  Freeman  r.  Scofield,  16  N.  J.  Eq. 
28;  Vickers  V.  Cowell,  1  Beav.  529;  Mitchell  f.  Burnhani.  44  Me.  305; 
Burnett  f.  Pratt,  22  Pick.  556. 

f«  Packer  v.  Rochester,  etc.,  R.  R.,  17  N.  Y.  287;  Kershaw  c.  Thomp- 
gon,  4  .Johns.  Ch.  609;  DeHaven  t?;  Landell.  31  Pa.  St.  124;  Hindo  f. 
Allen,  34  Conn.  193;  Ritger  v.  Parker,  8  Cush.  149;  Watts  f.  Julian, 
122  Ind.  124;  Steinhardt  V.  Cunningham,  55  Hun  375;  France  r.  Arm- 
buster  (Neb.),  44  N.  W.  Rep.  481;  Glide  v.  Dwycr,  83  Cal.  477;  Barr 
V.  Van  Alstine,  120  Ind.  590.  A  bill  for  foreclosure  is  not  strictly  a 
proceeding  in  rem,  but  is  for  the  enforcement  of  a  contract  obligation 
against  specific  persons  and  to  foreclose  their  equity  of  redemption  and, 
hence,  the  decree  does  not  effect  those  not  made  parties  to  the  action. 
Lohmeyer  v.  Durbin,  213  111.  408,  72  N.  E.  Rep.  1118. 

OT  Blair  v.  Rivard,  19  111.  App.  477;  Cook  r.  Cooper,  18  Ore.   142. 

08  Evans  r.  Pike,  118  U.  S.  241.  For  equitable  relief  by  mortgagee 
who  had  failed  to  make  some  of  the  deceased  mortgagor's  heirs  parties 
to  suit  to  foreclose,  see,  Investment  Co.  r.  Adams  (Wasli.  1905),  79 
Pac.   Kep.  625. 

20  401 


§    275  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART   I. 

to  enable  him  to  redeem.^®  In  equitable  foreclosure  by  sale, 
some  of  the  statutes  require  that  a  certain  time  be  given  to 
the  mortgagor  after  the  sale  to  redeem  the  estate,  and  a  court 
of  equity,  in  the  exercise  of  its  discretion,  may,  in  the  ab- 
sence of  statute,  provide  for  such  a  period  of  redemption 
before  sale.^  In  such  a  case,  however,  it  is  held  that  the  mort- 
gagor can  redeem  the  land  on  paying,  not  the  amount  of  the 
mortgage  debt,  but  the  amount  of  the  bid,  for  which  the 
property  was  sold  under  foreclosure.^  And  where  there  is  a 
time  for  redemption  after  the  sale,  the  decree  must  not  di- 
rect a  delivery  of  the  deed  until  this  period  for  redemption 
has  expired.  But  a  certificate  is  generally  given  to  the  pur- 
chaser.^ Until  delivery  of  the  deed,  the  mortgagor  is  entitled 
to  the  rents  and  profits  of  the  land.  And  if  a  mortgagee  is 
permitted  to  enter  into  possession  before  the  expiration  of 
the  period  of  redemption,  he  takes  possession  in  his  character 
as  mortgagee.*  But  when  the  deed  is  delivered,  it  operates 
nunc  pro  tunc  from  the  date  of  the  sale,  and  bars  any  in- 
tervening attaching  rights.  And  although  the  decree  be  er- 
as Russell  r.  Giinn,  40  Minn.  463. 

1  Ferine  v.  Dunn,  4  Johns.  Ch.  140 ;  Durrett  v.  Whiting,  7  B.  Mon. 
547;  Harkins  r.  Forsyth,  11  Leigh  204;  Gaskell  V.  Viquesney,  122  Ind. 
244;  Nelms  v.  Kennon,  88  Ala.  329;  Willard  v.  Finnegan,  42  Minn. 
476;  Buchanan  V.  Reid,  43  Minn.  172;  Wood  v.  Holland  (Ark.),  13  S. 
W.  Rep.  739;  Emmons  r.  Sowden  (Mich.),  43  N.  W.  Rep.  1100;  John- 
son i:  Colder,  9  N.  Y.  S.  739. 

2  Williamson  v.  Dickerson,  66  Iowa  105.  In  Alabama,  California, 
Oregon,  Michigan,  Minnesota,  Wisconsin,  Tennessee,  Iowa  and  Illinois, 
there  are  statutes  regulating  the  right  of  redemption.  2  Washburn  on 
Real  Prop.  261-269,  note. 

sBoester  r.  Byrne,  72  111.  466;  Rhinehart  v.  Stevenson,  23  111.  524; 
Walker  V.  Jarvis,  16  Wis.  28;  Harlan  v.  Smith,  6  Cal.  173.  The  Illinois 
act  of  1872,  Sec.  30,  providing  for  a  forfeiture  of  all  rights  of  a  mort- 
gagee, who  fails  to  procure  a  master's  deed  in  foreclosure,  within  a 
certain  time  after  the  expiration  of  the  period  for  redemption,  is  held 
to  impair  the  obligation  of  the  contract  and  to  deny  due  process  of  law 
to  a  mortgagee,  whose  mortgage  antedated  the  act,  in  Bradley  v. 
Lightcap,  195  U.  S.  1,  49  L.  Ed.  65. 

4  Jones  V.  Rigby,  41  Minn.  530;  Clason  V.  Corley,  5  Sandf.  Ch.  447; 
Whalin  r.  White,  25  N.  Y.  464;  Whitney  v.  Allen,  21  Cal.  233. 
402 


CH.    XI.  J  REMEDIES   INCIDENT   TO   MORTGAGES.  §    275 

roneous  for  some  irregularity,  it  cannot  be  attacked  collater- 
ally, and  the  title  of  a  bona  fide  purchaser,  in  a  sale  during 
the  pendency  of  the  suit,  cannot  thereby  be  avoided,  not- 
withstanding the  decree  has  subsequently  been  reversed.''  In 
strict  foreclosure,  the  decree  makes  the  estate  absolute  in  the 
mortgagee.  His  title,  whatever  it  is  held  to  be  before  fore- 
closure, becomes  afterwards  a  legal  estate  in  lands  and  de- 
scends to  the  heirs,  instead  of  to  the  personal  representa- 
tives.* But,  in  some  of  the  States,  if  the  mortgagee  dies  be- 
fore a  suit  for  strict  foreclosure  has  been  instituted,  and  it 
is  brought  by  the  personal  representatives,  the  estate,  for  the 
purpose  of  distribution,  partakes  of  the  character  of  per- 
sonalty, and  the  title  vests  in  those  who  became,  by  the  death 
of  the  mortgagee,  entitled  to  the  mortgage-debt.'  The  de- 
cree in  a  foreclosure  suit  is  binding  upon  infant  holders  of 
the  equity  to  the  same  extent  as  adults,  except  that  if  the 
foreclosure  is  irregular  on  account  of  some  defect  in  the  pro- 
ceeding, he  may  take  advantage  of  such  error  within  a  rea- 
sonable time  after  arriving  at  his  majority.  And  this  is  the 
rule,  whether  the  foreclosure  is  in  equity  or  at  law;  but  for 
the  protection  of  his  interests,  it  is  generally  required  that 

6  Graham  r.  Bleakie,  2  Daly  55;  Homer  t*.  Zimmprman,  45  111.  14; 
Burford  v.  Rosenfeld,  37  Texas  42;  Torroms  v.  Hieks.  .32  Mich.  .307; 
Markel  V.  Evans,  47  Ind.  326;  Miller  V.  Sharp,  49  Cal.  2.3.3;  but  see 
Brindernagle  v.  German  Eef.  Church,  1  Barb.  Ch.  15.  A  failure  to  at- 
tach the  seal  of  the  court  to  an  order  of  sale  cannot  collaterally  be 
raised,  to  eflFect  the  sale  in  foreclosure.  Hajjcr  r.  Astorp,  145  Cal.  .")4S. 
79  Pac.  Rep.  68.  The  doctrine  of  bona  fide  purchasers,  is  held,  in 
Arkansas,  not  to  apply  to  a  purchaser  at  a  mortgage  foreclosure. 
Cooper  V.  Ryan  (Ark.  1904),  83  S.  W.  Rep.  328.  Mortgagees  and 
beneficiaries  in  trust  deeds  are  always  regarded  as  bona  fide  purchasers. 
Gilbert  V.  Lawrence  (W.  Va.  1904),  49  S.  E.  Rep.  155;  Walker  i\ 
Walker   (Iowa   1905),  102  N.  W.  Rep.  4.35. 

6  Brainard  r.  Cooper,  10  N.  Y.  359;  Goodman  r.  White,  26  Conn.  .322 r 
Bradley  v.  Chester  Val.  R.  R..  36  Pa.  St.  150;  Kendall  r.  Treadwell.  14 
How.  Pr.  165;  Farrell  r.  Parlier,  50  111.  274;  Osborne  v.  Tunis,  25  N.  J. 
L.  633;  Swift  r.  Edson,  5  Conn.' 531. 

T  Mass.  Gen.  Stat.,  Ch.  96,  Sees.  10,  1  B,  14;  Fifield  v.  Sperry,  20  N. 
H   338. 

403 


§    275  REMEDIES  INCIDENT   TO    MORTGAGES.  [PART    I. 

the  infant  be  represented  in  the  suit  by  a  guardian  ad  litem.^ 
So  also  is  the  decree  binding  upon  married  women,  if  their 
husbands  are  joined  with  them  as  parties  to  the  suit.  And 
the  failure  of  the  husband  to  defend  will  not  constitute  a 
ground  for  setting  aside  the  decree ;  at  least,  where  the  fore- 
closure is  by  a  sale  of  the  premises."  But  the  decree  only 
transfers  whatever  interest  is  claimed  by  or  through  the  mort- 
gagor. It  vests  that  interest  in  the  mortgagee  or  purchaser, 
but  cannot  bar  the  interests  held  by  persons  who  are  not 
privies  to  the  mortgagor.  The  decree,  therefore,  does  not 
affect  any  paramount  title  which  is  held  or  claimed  by  such 
persons,  even  though  they  have  been  made  parties  to  the  suit.^" 
Nor  does  the  decree  determine  the  priorities  of  the  junior 
mortgagees  and  their  relative  claims  to  a  share  in  the  surplus 
of  the  proceeds  of  sale."    Where,  however,  the  foreclosed 

8  If  it  be  a  strict  foreclosure,  the  infant  would  be  bound  by  the  de- 
cree, if  he  does  not  show  some  defect  in  the  foreclosure  proceeding 
within  a  reasonable  time  after  his  arrival  at  majority.  2  Cruise  Dig. 
199;  Mills  V.  Dennis,  3  Johns.  Ch.  367.  But  the  infant  is  bound  by  a 
sale  under  the  decree,  if  he  has  been  properly  made  a  party  to  the 
action  notwithstanding  the  irregularity.  Mills  r.  Dennis,  supra;  2 
Washburn  on  Real  Prop.  2.59.  Irregularities  in  the  appointment  of  a 
guardian,  ad  litem,  will  not  effect  the  title  of  a  purchaser  at  fore- 
closure sale,  in  New  York.  Bannister  v.  Demuth,  178  N.  Y.  630,  71  N. 
E.  Rep.   1128. 

»Mallack  v.  Galton,  3  P.  Wms.  352;  Mooney  v.  Maas,  22  Iowa  380; 
Mavrick  v.  Grier,  3  Nev.  52.  But  in  the  States  where  married  women 
hold  their  property  independent  of  their  husbands,  it  seems  unnecessary 
to  make  the  husband  a  party.  Somerset,  etc.,  Assn.  v.  Caniman,  UN. 
J.  Eq.  382;  Thornton  v.  Pigg,  24  Mo.  249.  And  the  same  rule  now  pre- 
vails in  Massachusetts  for  a  different  reason.  Davis  r.  Wetherell,  13 
Allen  62;  Newhall  v.  Sav.  Bk.,  101  Mass.  430. 

10  Concord,  etc.,  Ins.  Co.  i\  Woodbury,  45  Me.  447 ;  Eagle  F.  Ins.  Co. 
r.  Lent,  6  Paige  Ch.  635;  Grattan  v.  Wiggins,  23  Cal.  32;  Brvmdage 
r.  Missionary  Society,  60  Barb.  205;  Kinsley  v.  Scott,  58  Vt.  470;  Weil 
V.  Uzzett,  92  N.  C.  515;  Bozarth  v.  Sanders,  113  111.  181;  Ord  V.  Bart- 
lett,  83  Cal.  428.  A  purchaser  in  foreclosure  only  takes  such  title  as 
the  mortgagor  had.  Duncan  v.  Asphalt  Co.  (Ky.  1904),  83  S.  W.  Rep. 
124. 

"  Burchell  v.  Osborne,  119  N.  Y.  486.  The  purchaser  at  foreclosure 
404 


CH.    XI.]  REMEDIES   INCIDENT   TO    MORTGAGES.  §   276 

mortgage  covers  only  one  undivided  interest  in  a  joint-estate, 
the  plaintiff  may  secure  by  the  same  judgment  a  partition  of 
the  joint-estate.^-  This  statement  of  the  effect  of  the  decree 
in  foreclosure  is  true  in  all  technical  suits  for  foreclosure; 
but  where,  as  in  Maine  and  Massachusetts,  the  suit  for  fore- 
closure is  in  the  nature  of  an  action  at  law  for  the  recovery 
of  possession,  if  the  person  in  possession  holds  under  a  su- 
perior title,  it  would  be  necessary,  or  at  least  proper,  to  assert 
such  title.  But  this  is  'really  not  an  exception  to  the  rule 
above  cited,  since  wherever  the  mortgagee  may  maintain  the 
action  of  ejectment  the  question  of  a  paramount  title  might 
be  raised  by  the  party  in  possession,  if  he  is  not  the  mort- 
gagor.^^ 

§  276.  The  effect  of  foreclosure  upon  the  debt. —  If  the  suit 
be  for  strict  foreclosure,  all  actions  on  the  surplus  of  the 
debt  remaining  unsatisfied  are  barred  as  long  as  the  fore- 
closure is  upheld ;  ^*  but  if  the  mortgagee — in  the  ease  that 
the  value  of  the  property  is  not  sufficient  to  satisfy  the  entire 
debt — wishes  to  pursue  his  remedy  for  the  unsatisfied  bal- 
ance, it  will  re-open  the  foreclosure,  and  the  property  will 
or  may  be  sold  under  judicial  decree,  in  order  to  ascertain 
its  actual  value,  and  the  amount  of  the  judgment  to  be  en- 
tered up  against  the  debtor.^°  Where  the  decree  directs  a 
sale  of  the  premises,  the  proceeds  of  sale  are  applied  to  the 
liquidation  of  the  debt,  and  if  they  are  not  sufficient  to  pay 

Bale,  under  a  first  mortgage,  cuts  off  a  lease  given  bj*  the  mortgagor 
subsequent  thereto.    Strong  r.  Smith  (N.  J.  Ch.  1905),  60  Atl.  Rep.  66. 

12  Lyon  r.  Powell,  78  Ala.  351. 

"Hunt  f.  Hunt,  17  Pick.  118;  Johnson  v.  Phillips,  13  Gray,  198; 
Churchill  r.  Loring,  10  Pick.  465;  Wheelright  V.  Freeman,  12  Mete. 
154;   Whittier  v.  Dow,  14  Me.  208. 

i^Griesbaum  v.  Baum,  18  111.  App.  614. 

"Lovell  V.  Iceland,  3  Vt.  581;  Osborne  v.  Tunis,  25  N.  J.  L.  633; 
Spencer  V.  Harford,  4  Wend.  381;  Morgan  f.  Plumb,  9  Wend.  287; 
Andrews  V.  Scotton,  2  Bland,  666;  Edgerton  V.  Young,  43  111.  470;  Por- 
ter r.  Pillsbury.  36  Me.  278;  Patten  r.  Pearsen,  57  Me.  4.34;  Leland 
f.  Loring,  10  Mete.  122;  Lansing  v.  Goelet,  9  Cow.  346. 

405 


§    276  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART   I. 

the  whole  debt,  the  mortgagee  has  his  remedies  for  the  bal- 
ance, which  are  the  ordinary  actions  at  law  for  the  recovery 
of  a  debt.  It  is  usual,  however,  for  the  court  of  equity,  in 
rendering  a  decree  in  foreclosure  for  the  sale  of  the  mort- 
gaged premises,  to  give  judgment  for  the  unpaid  surplus 
against  the  mortgagor  and  others  who  may  be  jointly  liable 
with  him.'*  And  the  court  may  grant  this  judgment  for  the 
unsatisfied  surplus,  although  the  complaint  or  bill  in  fore- 
closure contains  no  such  prayer."  The  remedies  of  the  mort- 
gagee are  twofold:  first,  against  the  property  mortgaged, 
and  secondly,  on  the  personal  liability  of  the  mortgagor. 
These  remedies  are  independent  of  each  other,  and  although 
there  can  be  but  one  payment  of  the  debt,  the  prosecution 
of  one  of  these  remedies  does  not  bar  the  right  to  pursue  the 
other,  and  they  may  be  employed  simultaneously  in  separate 
proceedings.'^     But  in  some  of  the  States — notably  New  York 

isDunkley  r.  Van  Buren,  3  Johns.  Ch.  3.30;  Deare  r.  Carr,  3  X.  J. 
Eq.  513;  Pierce  f.  Potter,  7  Watts,  475;  Andrews  T.  Scotten,  2  Bland 
606;  Hale  r.  Rider,  5  Cush.  231;  Jones  r.  Conde,  6  Johns.  Ch.  77: 
Payne  r.  Harrell,  40  Miss.  498;  Stark  V.  Mercer,  3  How.  (Miss.)  377; 
Marston  c.  Marston,  45  Me.  412;  Drayton  r.  Marshall,  Rice  Eq.  S86; 
Shepherd  v.  Pepper,  133  U.  S.  626;  Weir  r.  Field  (Miss.),  7  So.  Rep. 
355 ;  Hilton  r.  Otoe  Co.  Bank,  29  Fed.  Rep.  202 ;  Shields  v.  Riopelle,  63 
Mich.  458;  Ohio  Central  R.  R.  Co.  r.  Central  Trust  Co.,  133  U.  S.  83. 
There  are  statutory  provisions,  for  rendering  a  judgment  for  any  unsat- 
isfied balance  in  the  foreclosure  suit,  in  Arkansas,  California,  Indiana, 
Michigan,  Minnesota,  New  York,  Missouri,  Texas  and  Iowa.  See 
Washburn  on  Real  Prop.  261-269,  note;  Estcs  r.  Fry,  166  Mo.  70,  65 
S.  W.  Rep.  746. 

17  Wat  kins  r.  Vrooman,  51  Hun  175. 

18  Booth  r.  Booth,  2  Atk.  343;  Hale  v.  Rider,  5  Cush,  231;  Jones  r. 
Conde,  6  Johns.  Ch.  77;  BumeJl  r.  Martin,  2  Dougl.  417;  Atty.-Gen. 
r.  Winstanley,  5  Bligh.  130;  Hughes  v.  Edwards,  9  Wheat.  487;  McCall 
C.  Lenox,  9  Serg.  &.  R.  302;  Oilman  V.  HI.  &  Miss.  Tel.  Co.,  91  U.  S. 
603;  Riblett  r.  Davis,  24  Ohio  St.  114;  Slaughter  V.  Foust,  4  Blackf. 
379;  Payne  v.  Hanel,  40  Miss.  498;  Baum  v.  Tomkin,  110  Pa.  St.  569; 
Shepherd  r.  Pepper,  133  U.  S.  626;  Blinne  v.  Kromer,  14  Okla.  366.  79 
Pac.  Rep.  215;  Ridgley  v.  Abbott  Min.  Co.  (Cal.  1905),  79  Pac.  Rep. 
833;  Daniels  r.  Mutual  Ben.  Ins.  Co.  (Neb.  1905),  102  X.  W.  Rep. 
4.58;  Stumpf  V.  Hallahan,  91  N.  Y.  S.  1062,  101  App.  Div,  383;  Twigg 
r.  James  (Wash.  1905),  79  Pac.  Rep.  959. 

406 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §   277 

— judgment  will  not  be  rendered  in  an  action  at  law  on  the 
debt,  while  a  suit  for  foreclosure  is  pending,  without  leave 
of  the  court  in  which  such  suit  is  filed.^®  This  rule  of  prac- 
tice, no  doubt,  rests  upon  the  ground  that  the  entry  of  judg- 
ment in  the  proceeding  at  law  would  be  useless,  since  in  the 
foreclosure  suit,  judgment  will  be  given  for  any  balance  re- 
maining unsatisfied. 

§  277.  Mortgages  with  power  of  sale. —  In  order  to  avoid 
the  burdensome  and  expensive  proceedings  for  foreclosure, 
the  idea  was  conceived  of  giving  to  the  mortgagee  the  power 
to  sell  the  mortgaged  premises  upon  the  breach  of  the  condi- 
tion, and  apply  the  proceeds  of  sale  to  the  liquidation  of  the 
mortgage-debt.  It  was  at  first  doubted  whether  such  a  power 
was  valid,  when  granted  either  in  the  mortgage  or  in  a  sepa- 
rate instrument.  It  was  considered  as  a  contemporaneous 
agreement,  which,  in  its  exercise,  curtailed  the  mortgagor's 
right  to  redeem,  and,  therefore,  was  void.  But  the  power 
of  sale  is  now  generally  held  to  be  good,  since  it  does  not 
abridge  or  take  away  the  ordinary  remedies  for  foreclosure, 
and  is  not  in  theory  a  means  of  foreclosing  the  mortgagor's 
equity  of  redemption.-**     It  is  a  power  coupled  with  an  in- 

i»  Williamson  c.  Champlin,  8  Paige  Ch.  70;  Suydam  v.  Bartle,  9 
Paige  Ch.  204;  3  Rev.  St.  N.  Y.  (1875)  198;  Mutual  L.  Ins.  Co.  v. 
Sn-.ith,  54  N.  Y.  Super.  Ct.  400;  Schultz  v.  Meade,  8  N.  Y.  S.  663;  U. 
S.  Life  Ins.  Co.  v.  Poillon,  7  N.  Y.  S.  834.  In  Michigan,  Iowa  and 
Indiana  the  same  statute  rules  prevail.  Mich.  Comp.  Laws  (1871), 
1549;  Code  of  Iqw»  (1873),  Sec.  3220;  '2  Ind.  Rev.  Stat.  (1876),  259; 
Shields  v.  Riopelle,  63  Mich.  458.  In  Minnesota  no  suit  at  law  on  the 
debt  may  be  instituted  until  the  foreclosure  suit  is  ended..  Johnson  v. 
Lewis,  13  Minn.  364,  See  also,  to  the  same  effect,  Anderson  v.  Pilgam, 
30  S.  C.  499.  The  purchaser  of  the  mortgaged  land,  at  foreclosure  sale, 
is  not  bound  to  comply  with  his  bid,  where  the  description  in  the  sale 
notice  is  too  indefinite  to  pass  a  good  title.  Jackson  v.  Binnicker,  106 
Mo.  App.  721,  80  S.  W.  Rep.  682. 

20  Wilson  V.  Troup,  7  Johns.  Ch.  25:  Smith  v.  Provin,  4  Allen  518; 
Kinsley  r.  Ames,  2  Mete.  29;  Calloway  r.  People's  Bk.,  54  Ga.  441; 
Longworth  v.  Butler,  3  Gilm.  32;  Wing  r.  Cooper,  37  Vt.  184;  Mann 
V.  Best,  62  Mo.  491;  Clark  V.  Condit,  18  N.  J.  Eq,  358;  Hyman  v.  Dev- 

407 


§    277  REMEDIES   INCIDENT   TO    MORTGAGES.  [PART   I. 

terest,  and  is,  therefore,  irrevocable  by  the  mortgagor.  It 
operates  as  the  appointment  of  a  use,  which  under  the  Stat- 
ute of  Uses,  becomes  executed  into  a  legal  estate  in  the  pur- 
chaser, and  has  all  the  characteristics  that  are  met  with  in 
ordinary  powers  of  appointment  under  that  statute.-^  It  is 
not  determined  by  the  death  of  either  party,  as  is  the  case 
with  common-law  powers  of  attorney ;  ^^  it  descends  to  the 
mortgagee's  heirs  at  his  death,^^  and  passes  to  the  assignee 

eraux.  63  N.  C.  624 ;  Bradley  v.  Chester  Valley  R.  R.,  36  Pa.  St.  141 ; 
Mitchell  V.  Bogan,  11  Rich.  L.  686;  Crowning  v.  Cox,  1  Rand.  306; 
Plum  r.  Stndebaker,  89  Mo,  162, 

21  Wilson  r.  Troup,  2  Cow.  236.  The  difficulty  of  the  courts  at  first, 
in  determining  the  validity  of  a  sale  under  the  power,  is,  nt)  doubt, 
traceable  to  a  failure  to  apply  to  that  case  the  doctrine  of  powers  of 
appointment  under  the  Statute  of  Uses,  The  ordinary  mortgage  is,  in 
form  and  effect,  a  deed  ot  bargain  and  sale,  and  the  grant  of  a  power 
of  sale  therein  may  be  construed  as  the  limitation  of  a  use.  See  post, 
Chapter  XVI.  on  Powers.  But  in  most  of  the  States,  where  mortgages 
with  power  of  sale  are  in  common  use,  they  are  expressly  authorized 
by  statute,  and  there  is  no  need  of  this  construction  in  order  to  estab- 
lish their  validity. 

22  0hnsburg  V.  Turner,  87  Mo.  127;  Benneson  v.  Savage,  130  111.  352. 

23  When  it  is  stated  in  the  text  that  the  power  of  sale  passes  to  the 
heirs  of  the  mortgagee,  reference  is  only  had  to  those  States  where  the 
mortgage  itself  descends  to  the  heir.  But  in  most  of  the  States  the 
power  of  sale  descends  with  the  mortgage  to  the  personal  representa- 
tives, and  may  be  exercised  by  them,  although  the  power  is  expressly 
limited  to  the  "  heirs  and  assigns."  Demarest  v.  Wynkoop,  3  Johns. 
Ch.  125;  Berry  v.  Skinner,  30  Md.  573;  Harnickle  v.  Wells,  50  Ala.  198. 
In  Missouri  and  Illinois,  and  perhaps  in  other  States,  upon  the  death 
of  the  mortgagee  the  sheriff  may  be  directed  to  execute  the  power,  or  a 
new  trustee  can  be  appointed  upon  the  application  of  any  one  interested 
therein.  Hickman  r.  Dill,  32  Mo.  App.  509.  The  power  of  sale  vested 
in  a  trustee  in  a  trust  deed  is  a  power  coupled  with  an  interest,  and 
hence  is  not  revoked  by  the  death  of  the  grantor.  The  power  of  sub- 
stitution of  a  new  trustee  granted  in  a  trust  deed  to  the  beneficiary  is. 
a  power  coupled  with  an  interest,  and  hence  's  not  revoked  by  the 
death  of  the  grantor.  So  held  in  Frank  v.  Colonial  &  U.  S.  Mortg.  Co. 
Limited,  38  So.  Rep.  340  (Mi?s.  May  1,  1905),  citing  Jones  on  Mort- 
gages (6  ed.),  Sec.  1792,  97  Ga.  5fi6,  25  S.  E.  Rep.  485.  See  also.  Mark- 
well  V.  Markwell.  157  Mo.  326,  57  S.  W.  Rep.  1078;  Kelsay  r.  Bank, 
166  Mo.  157,  05  S.  W.  Rep.  1007;  Curtis  V.  Moore,  162  Mo.  442,  63  S. 
W.  Rep.  80. 

408 


CH.   XI.]  KEMEDIES   INCIDENT   TO    MORTGAGES.  §    278 

of  the  mortgage,  except  where  only  a  part  of  the  mortgage- 
debt  is  assigned.  The  power  is  indivisible,  and,  therefore, 
in  a  partial  assignment,  remains  in  the  mortgagee,  who  must 
exercise  it  for  the  benefit  of  both  parties.-*  If  the  donee  of 
the  power  is  a  corporation,  the  power  may  be  exercised  by  its 
duly  authorized  agent.-'*  The  power  of  the  sale  need  not 
be  limited  to  the  estate  of  the  mortgagee.  While  the  mort- 
gage may  only  cover  a  life  estate,  the  power  might  authorize 
a  sale  of  the  fee.-"  And  the  power  of  sale  would  be  valid 
as  a  security,  although  no  estate  in  the  mortgaged  property  be 
given  to  the  creditor.  The  power  of  sale  would  in  that  case 
be  a  naked  power. '^^ 

§  278.  Character  of  the  mortgagee  in  relation  to  the  power. 
—  As  donee  of  the  power,  the  mortgagee  assumes  the  char- 
acter of  trustee  for  himself  and  the  mortgagor,  and  all  other 
parties  having  interests  in  the  mortgaged  premises.  In  this 
capacity  he  is  under  the  ordinary  obligations  of  a  trustee, 
and  bound  in  his  actions  by  the  same  rules  of  duty.-**     In 

2<Doolittle  V.  Lewis,  7  Johns,  Ch.  45;  Wilson  v.  Traup,  2  Cow.  236; 
Jencks  r.  Alexander,  11  Paige  Ch.  619;  Beiger  V.  Bennett,  1  Caine's 
Cas.  1;  Slee  v.  Manhattan  Co.,  1  Paige  Ch.  48;  Harnickell  t'.  Oindoff, 
35  Md.  341;  Pickett  f.  Jones,  03  Mo.  195;  Strother  V.  Law,  54  HI.  413; 
Bush  r,  Sherman,  80  HI.  160;  Solberg  v.  Wright,  33  Minn.  224;  Holmes 
f.  Turner's  Falls  Lumber  Co.,  150  Mass.  535;  Sanford  V.  Kane,  24  111. 
App.  504;  reversed  127  111.  591.  But  see  Dameron  V.  Eskridge,  104  N. 
C.  621.  And  this  is  also  true  where  the  assignment  of  the  debt  works 
an  assignment  of  the  mortgage.  Such  an  assignee  may  exercise  the 
power  in  those  States  where  such  a  transaction  is  looked  upon  as  a 
legal  assignment.  See  cases  supra.  And  the  assignee  may  exercise  the 
power,  although  the  assignment  has  not  been  recorded.  Montague  f. 
D.iwes,  12  Allen  397 ;  s.  c.  14  Allen  373.  But  it  has  been  held  in  Mis- 
souri, that  the  power  must  be  expressly  limited  to  the  mortgagee  and 
afiaiyns,  in  order  that  the  assignee  may  exercise  the  power.  Dolbear  v. 
Worduft,  84  Mo.  619;  Axman  v.  Smith,  156  Mo.  286,  57  S.  W.  Rep.  105. 

25  Chilton  1-.  Brooks,  71  Md,  445. 

26  Sedgwick  v.  Laflin,  10  Allen  430;  Torrey  t?.  Cook,  116  Mass,  105. 
2TNeidig  r.  Eiffer,  18  Abb.  Pr,  353;  Parshall  t?,  Eggart,  52  Barb,  367; 

Holmes  r.  Hall,  8  Mich.  66;  Bousey  v.  Amee,  8  Pick.  230. 

28  Kelsay  c.  Farmers'  &  Traders'  Bank,  166  Mo.  157,  65  S.  W.  Rep. 

409 


§   278  REMEDIES  INCroENT  TO  MORTGAGES.  [PART  I. 

the  execution  of  the  power  he  must  exercise  the  most  scrupu- 
lous care  to  render  the  sale  of  the  premises  as  beneficial  as 
possible  to  all  parties  concerned.  And  he  will  be  liable  in 
damages  for  any  loss  to  such  parties  resulting  from  his  neg- 
ligence in  the  conduct  of  the  sale.-"  In  most  of  the  States 
where  mortgages  with  power  of  sale  are  in  common  use,  the 
execution  of  the  power  is  regulated  by  local  statutes.  But 
in  the  absence  of  statutory  regulations,  sales  under  the  power 
are  governed  by  the  same  rules  as  apply  to  the  sale  of  other 
trust  property.^"    A  failure  to  observe  the  statutory  require- 

1007;  Axman  v.  Smith,  156  Mo.  286,  57  S.  W.  Rep.  105.  The  trustee 
in  a  deed  of  trust  occupies  the  same  relation  as  the  mortgagee,  i.  e., 
he  is  agent  for  both  debtor  and  creditor.     Axman  f.  Smith,  supra. 

29  Tomlin  v.  Luce,  43  Ch.  Div.  191. 

30  Howard  V.  Ames,  3  Mete.  311;  Robertson  V.  Norris,  1  Giflf.  424; 
Jencks  v.  Alexander,  11  Paige  Ch.  624;  Ellsworth  v.  Lockwood,  42  N. 
Y.  89;  Leet  v.  McMaster,  51  Barb.  236;  Montague  v.  Dawes,  14  Allen 
369.  Mere  inadequacy  of  price  will  not  vitiate  the  sale,  but  if  the 
property  has  been  so  grossly  sacrificed  that  the  purchaser  may  be  pre- 
sumed to  know  of  it,  the  sale  will  be  avoided.  Vail  v.  Jacobs,  62  Me. 
130;  King  V.  Bronson,  122  Mass.  122;  Horsey  v.  Hough,  38  Md.  130; 
Landrum  v.  Union  Bk.  of  Mo.,  63  Mo.  48;  Hoodless  V.  Reid,  112  111. 
105;  Maxwell  V.  Newton,  65  Wis.  261;  Gross  v.  Janesok,  10  N.  Y.  S. 
541;  Chilton  v.  Brooks,  71  Md.  445;  Condon  v.  Maynard,  71  Md.  601. 
And  any  fraudulent  mismanagement  or  deception  practiced  upon  the 
mortgagor  will  avoid  the  sale,  if  the  purchaser  participates  in  it,  or 
is  cognizant  of  it.  Bnnta  v.  Maxwell,  12  How.  Pr.  479;  Lee  V.  Mc- 
Masters,  51  Barb.  230;  Bush  V.  Sherman,  80  111.  160;  Hurd  V.  Case,  32 
111.  45;  Jackson  V.  Crafts,  18  Johns.  110;  Mann  V.  Best,  62  Mo.  491. 
Notice  of  the  sale  to  the  parties  interested  in  mortgaged  premises  is 
not  necessary  to  validity  of  sale  in  absence  of  a  statutory  requirement. 
Carver  V.  Brady,  104  N.  C.  219.  The  action  to  set  aside  a  sale  under  a 
power  is  an  equitable  proceeding  to  redeem  the  property.  A  bill  to  set 
aside  the  sale,  without  offering  to  redeem,  will  not  be  entertained. 
Candee  v.  Burke,  1  Hun  546;  Vroom  V.  Ditmas,  7  Cow.  13;  Robinson  v. 
Ryan,  25  N.  Y.  320;  Schwartz  v.  Sears'"  Walk.  (Mich.)  170.  But  the 
bill  must  be  filed  within  a  reasonable  time  after  the  discovery  of  the 
fraud  or  other  equitable  claim.  Acquiescence  is  treated  as  a  waiver  of 
all  irregularities  in  the  sale.  Hamilton  v.  Lubukee,  51  111.  415;  Bush 
V.  Sherman,  80  111.  160;  Hoffman  v.  Harrington,  33  Mich.  392;  Landrum 
V.  Union  Bk.  of  Mo.,  63  Mo.  48;  Alexander  v.  Hill,  88  Ala.  487.  In 
sales  by  a  trustee,  under  deed  of  trust,  as  the  power  of  sale  is  a  per- 

410 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    278 

ments,  or  the  terms  of  the  power,  will  invalidate  the  deed  of 
conveyance  made  in  pursuance  of  the  sale,  even  in  the  hands 
of  a  purchaser  without  actual  notice.^^  There  must  be  a  sub- 
stantial compliance  with  such  regulations,  in  order  to  pass 
a  good  title  to  the  purchaser,  the  burden  of  proof  being  cast 
upon  the  purchaser  unless  the  recitals  show  a  compliance  with 
the  requirements  ot'  the  law.^^     The  sale  will,  however,  under 

Bonal  trust,  tlie  trustee  must  be  present  and  supervise  the  sale  and  act 
with  impartiality  to  protect  the  rights  of  both  debtor  and  creditor. 
Kelso  V.  Farmers'  Bank,  1G8  Mo.  157,  Co  S.  W.  Rep.  1007. 

31  The  provisions  of  a  mortgage,  in  regard  to  notice  of  sale,  on  de- 
fault, must  be  complied  with  or  the  sale  will  be  void.  Ford  v.  Nesbit 
(Ark.  1904),  79  S.  W.  Rep.  793;  Bausman  v.  Kelly,  38  Minn.  197,  8 
Am.  Rep.  661.  36  N.  W.  Rep.  333;  Welsh  v.  Cooley,  44  Minn.  446.  46 
N  .W.  Rep.  908. 

82  Smith  V.  Prodin,  4  Allen  518;  Roarty  v.  Mitchell,  7  Gray  243; 
Bradley  v.  Chester  Val.  R.  R.,  36  Pa.  St.  141;  John  v.  Bumpstead,  17 
Barb.  100;  Root  V.  Wheeler,  12  Abb.  Pr.  294;  Gibson  v.  Jones,  5 
Leigh,  370;  Ormsby  r.  Tarascon,  3  Litt.  404.  Tyler  v.  Herring  (Miss.), 
6  So.  Rep.  740;  Pierce  v.  Grunley  (Mich.)  43  N.  W.  Rep.  932. 
Among  others,  the  following  circumstances  have  been  deemed  sufficient 
to  set  aside  the  sale:  Neglect  to  give  the  required  notice  to  the  parties 
interested.  Low  v.  Purdy,  2  Lans.  422;  King  v.  Duntz,  11  Barb.  191; 
Randall  v.  Hazleton,  12  Allen,  422;  Green  r.  Cross,  45  N.  H.  594; 
Drinan  v.  Nichols,  115  Mass.  353;  Carpenter  v.  Black  Hawk,  etc.,  Co., 
65  N.  Y.  43;  Rutherford  V.  Williams,  42  Mo.  18;  Hoodlers  v.  Ried, 
112  111.  105;  Clark  V.  Simmons,  150  Mass.  357.  An  insufficient  publica- 
tion of  notice.  Lawrence  v.  Farmers'  Loan,  etc.,  Co.  13  N.  Y.  642; 
Elliott  V.  Wood,  45  N.  Y.  71;  Gibson  v.  Jones,  5  Leigh,  370;  Bush  v. 
Sherman,  80  111.  160;  Hubbell  t\  Sibley,  50  N.  Y.  468;  Calloway  v. 
People's  Bank,  54  Ga.  441;  Dickerson  v.  Small,  64  Md.  395;  Morse  V. 
Byam,  55  Mich.  594;  Bacon  v.  Kennedy,  56  Mich'.  329;  Magnasson  v. 
Williams,  111  111.  450;  Lester  v.  Citizens  Sav.  Bank  (R.  I.),  20  Atl. 
Rep.  231;  Williamson  v.  Stone,  27  111.  App.  214,  128  111.  129.  It  is 
not  usually  necessary  to  sell  the  property  in  parcels,  and  unless  it  is 
essentially  advantageous  to  the  mortgagor,  a  failure  to  do  so  will  not 
vitiate  the  sale.  Rowley  v.  Brown,  4  Binn.  61;  Chesley  r.  Cheslcy,  49 
Mo.  540;  8.  c.  54  Mo.  347;  Sumrall  v.  Chaffin,  48  Mo.  402;  Ellsworth 
V.  Lockwood,  42  N.  Y.  89;  Shannan  v.  Hay,  106  Ind.  589;  Willard  v. 
Finnegan,  42  Minn.  476;  Holmes  v.  Turner's  Falls  Lumber  Co.,  150 
Mass.  535;  see  statutes  in  New  York,  and  several  other  States  to  the 
same  effect.     A  sale  on  credit,  when  that  is  not  expressly  authorissed, 

411 


§    279  REMEDIES   INCIDENT   TO    MORTGAGES.  [PART   I. 

such  circumstances,  operate  as  an  equitable  assignment  of  the 
mortgage  and  pass  to  the  purchaser,  whatever  title  the  mort- 
gagee, as  such,  has  in  the  land,^'  And  whether  the  purchaser 
claims  title  as  assignee  of  the  mortgage  or  not,  the  subse- 
quent exercise  of  the  power  of  sale  in  foreclosure  is  in  no- 
wise affected  by  the  illegal  exercise  of  the  power.^* 

§  279.  Purchase  by  mortgagee  at  his  own  sale. —  Since  the 
mortgagee  as  donee  of  the  power  is  a  trustee  for  all  parties 
concerned,  he  will  not  be  permitted  to  purchase  at  his  own 
sale,  directly  or  indirectly,  unless  he  is  authorized  to  do  so  by 
statute  or  by  the  terms  of  the  mortgage.  And  such  a  pur- 
chase may  be  avoided  at  the  instance  of  the  mortgagor, 'even 
though  the  consideration  be  fair  and  adequate.^'  The  pur- 
is  invalid.  Olcut  v.  Bynum,  17  Wall.  44;  Mead  V.  McLaughlin,  42  Mo. 
198;  Arnold  v.  Green,  15  R.  I.  348;  see  2  Jones  on  Mort.,  Sees.  1868, 
1869.  But  he  may  give  credit  for  what  is  coming  to  him,  although 
not  authorized.  Strother  v.  Law,  54  III.  413.  A  sale  is  absolutely  void 
only  wliere  there  is  a  complete  failure  to  comply  with  an  essential 
requirement  (Bigler  v.  Waller,  14  Wall.  297)  ;  and  only  voidable  at  the 
election  of  the  parties,  when  the  exercise  of  a  discretion  as  to  the  man- 
ner of  compliance  is  irregular  or  unwise.  Ingle  v.  Culbertson,  43 
Iowa  265.  And  to  avoid  the  sale  in  the  hands  of  a  purchaser  for 
value,  notice  of  the  irregularity  must  be  brought  to  him.  Mann  V. 
Best,  62  Mo.  461;  Sternberg  v.  Dominick,  14  Johns.  435;  Montague  V. 
Dawes,  12  Allen,  397;  Hoit  V.  Russel,  56  N.  H.  559;  Hamilton  v. 
Lubukee,  51  111.  415;  Jackson  v.  Henry,  10  Johns.  185.  The  mere  fact 
that  land  is  sold  in  bulk,  instead  of  in  parcels,  will  not  vitiate  the 
mortgage  sale,  in  Missouri.  Benton  Land  Co.  v.  Zeitler,  182  Mo.  251, 
81  S.  W.  Rep.  193..  See,  also,  Anglo-California  Bank  v.  Cerf,  142  Cal. 
303,  75  Pac.  Rep.  902;  Bozarth  v.  Largent,  128  111.  95,  21  N.  E.  Rep. 
218;  Sowle  V.  Champion,  16  Ind.  165;  Nesbit  v.  Hanway,  87  Ind.  400; 
Brumbaugh  v.  Shoemaker,  51  Iowa,  148,  50  N.  W.  Rep.  493;  Dickert 
V.  Weise,  2  Utah,  350. 

33  Sawyers  v.  Baker,  77  Ala.  461. 

34  0hnsburg  v.  Turner,   87  Mo.    127. 

35  Downes  v.  Grazebrook,  3  Meriv.  207 ;  Davone  v.  Fanning,  5  Johns. 
Ch.  257;  Jackson  v.  Walsh,  14  Johns.  415;  Elliott  v.  Wood,  45  N.  Y. 
71;  Patten  f.  Pearson,  57  Me.  435;  Jcnnison  v.  Hapgood,  7  Pick.  1; 
Howard  v.  Ames,  3  Mete.  308;  Dyer  V.  Shurtlieff,  112  Mass.  165,  17 
Am.  Rep.  77;  Hall  v.  Bliss,  118  Mass.  560,  19  Am.  Rep.  475;   Waters 

412 


CH.   XI.]  REMEDIES   INCIDENT   TO    MORTGAGES.  §    280 

chase  by  the  mortgagee  without  express  authority  is,  however, 
only  voidable  at  the  election  of  the  mortgagor  and  his  privies. 
And  they  cannot  invalidate  the  sale,  if  the  property  in  the 
meantime  has  passed  into  the  hands  of  an  innocent  pur- 
chaser.'" 

§  280.  Extinguishment  of  the  power. —  The  power  is  ex- 
tinguished by  any  acts,  which  will  discharge  the  mortgage, 
such  as  payment  or  tender  of  payment,  and  the  exercise  of 
the  power  afterwards  will  not  vest  a  good  title  in  any  pur- 

r.  Groom,  11  Clark  &  F.  684;  Michaud  v.  Girod,  4  How.  .553;  Scott 
r.  Freeland,  7  Smed.  &  M.  418;  Roberts  V.  Fleming,  5.3  111.  IOC;  Par- 
menter  v.  Walker,  9  R.  I.  225 ;  Whitehead  v.  Hellen,  76  N.  C.  99 ;  Ben- 
ham  17.  Rowe,  2  Cal.  387;  Chilton  v.  Brooks,  71  Md.  601;  Bohn  r. 
Davis,  75  Tex.  24;  Nichols  r.  Otto  (111.),  23  N.  E.  Rep.  411.  Stat- 
utory provisions,  authorizing  the  mortgagee  to  purchase  at  his  own 
sale,  are  to  be  found  in  New  York,  Michigan,  Wisconsin,  Minnesota, 
Maryland.  2  Washburn  on  Real  Prop.  74;  2  Jones  on  Mort.,  Soc.  1740. 
It  is  not  necessary  to  show  fraud  or  unfair  dealing  in  order  to  avoid 
purchase  by  the  mortgagee.  Rutherford  v.  Williams,  42  Mo.  18;  Thorn- 
ton r.  Irwin,  43  Mo.  153;  Blockley  v.  Fowler,  21  Cal.  326.  Contra, 
Richards  V.  Holmes,  18  How.  143;  Howard  V.  Davis,  6  Texas,  174; 
Hamilton  v.  Lubukee,  51  111.  420.  When  the  sale  is  made  under  a 
judicial  decree,  or  by  a  public  officer,  when  that  is  permitted,  there  is 
no  restriction  upon  the  right  of  the  mortgagee  to  purchase.  Richards 
r.  Holmes,  18  How.  143;  Ma.xwell  v.  Newton,  65  Wis.  261.  Contra, 
Saines  v.  Allen,  58  Mo.  537.  The  common  law  rule  that  a  mortgagee 
could  not  purchase  at  the  foreclosure  sale,  is  not  generally  enforced 
at  the  present  day.  Hamilton  r.  Rhodes  (Ark.  1904),  83  S.  W.  Rep. 
351;  N.  Y.  Merc.  Co.  v.  Thurmond,  186  Mo.  410,  85  S.  W.  Rep.  333; 
Farm  Land  Co.  v.  St.  Raynor  (Neb.  1905),  102  N.  W.  Rep.  610; 
Mutual  L.  &  B.  Co.  v.  Hiss,  100  Ga.  Ill;  Ellenbarger  v.  Griffin,  55 
Ark,  268;  Knox  r.  Armstead,  87  Ala.  511,  13  Amer.  St.  Rep.  65. 

38  Dexter  v.  Shepard,  117  Mass.  480;  Burns  V.  Thayer,  115  Mass.  89; 
Robinson  v.  Cullom,  41  Ala.  693;  Rutherford  V.  Williams,  42  Mo.  18; 
McCall  r.  Mash  (Ala.),  7  So.  Rep.  770.  And  the  right  to  avoid  the  sale 
is  extingui.shed  by  ratification  of  the  mortgagor,  or  his  acquiesoonce 
therein  for  an  unreasonably  long  time.  Dobson  v.  Racey,  8  N.  Y.  216; 
Patton  V.  Pearson.  60  Me.  223;  Learned  r.  Foster,  117  Mass.  365;  Ber- 
gen r.  Bennett.  1  Caine's  Caa.  19;  Munn  V.  Burgess,  70  111.  604: 
Medsker  r.  Swaney,  45  Mo.  273;  Craddock  v.  Am.  Freehold,  etc.,  Co., 
88  Ala.  281.     The  doctrine  of  bona  fida  purchaser  does  not  apply  to 

413 


§   281  REMEDIES  INCIDENT  TO   MORTGAGES.  [PART  I. 

chaser,'^  unless  the  mortgragor  by  his  own  acts  is  estopped 
from  denying  the  validity  of  the  sale.  Thus,  for  example, 
if  the  mortgagor  is  present  at  the  sale  and  makes  no  protest, 
and  gives  no  notice  of  his  rights  to  the  bystanders,  he  will 
be  precluded  under  the  doctrine  of  estoppel  from  setting  aside 
the  sale  as  against  an  innocent  purchaser.^®  The  power  is, 
however,  unaffected  by  the  institution  of  an  action  for  fore- 
closure, as  long  as  the  foreclosure  has  not  been  effected.^" 

§  281.  Application  of  the  purchase  money. —  The  mortgagee, 
on  receiving  the  proceeds  of  sale,  must  apply  it  first  to  the 
expenses  of  the  sale,  and  then  to  the  satisfaction  of  the  mort- 
gage-debt. And  if  there  is  a  surplus  remaining,  he  holds  it 
in  trust  for  the  junior  incumbrancers,  and  lastly,  the  mort- 
gagor. Such  surplus  has  in  equity  all  the  qualities  of  real 
estate,  and,  if  the  mortgagor  has  died,  will  be  distributed 
among  the  widow  and  heirs,  instead  of  going  to  his  personal 
representatives.*'*     On  the  other  hand,  if  the  purchase-money 

a    purchaser    at    a    foreclosure   of   a   mortgage    sale.     Cooper    v.    Ryan 
(Ark.   1904),  83  S.  W.  Rep.  328. 

37  Cameron  r.  Irwin,  5  Hill,  272;  Charter  v.  Stevens,  3  Denio,  33; 
Burnet  r.  Dennister,  5  Johns.  Ch.  35;  Warner  v.  Blakeman,  36  Barb. 
501;  2  Jones  on  Mort.,  Sees.  886-893.  Tender  after  condition  broken 
does  not  at  common  law  extinguish  the  power.  Cranston  V.  Crane, 
97  Mass.  459;  Montague  V.  Dawes,  12  Allen  397.  But  in  most  of  the 
States,  payment  has  the  same  effect  after  as  well  as  before  condition 
broken.  Jenkins  v.  Jones,  supra;  Cameron  v.  Irwin,  supra.  Flower  v. 
Elwood,  66  111.  438;  Burnet  v.  Denniston,  5  Johns.  Ch.  35;  Whelora 
V.  Reilly,  61  Mo.  5G5;  see  2  Jone^  on  Mort.  Sec.  893;  and  ante,  Sec. 
247.  But  as  long  as  the  mortgage  remains  unsatisfied  on  the  records, 
a  sale  after  payment  would  be  upheld  in  favor  of  a  purchaser  for 
value  and  without  notice;  Elliott  v.  Wood,  53  Barb.  285;  Brown  V. 
Cherry,  65  Barb.  635;  Warner  V.  Blakeman,  56  Barb.  501. 

38  Cromwell  v.  Bank  of  Pittsburg,  2  Wall.  Jr.  569;  Smith  v.  Newton, 
38   111.  230. 

30  Jenkins  v.  International  Bank,  111  111.  462. 

«>  Buttrick  v.  Wentworth,  6  Allen,  79;   Andrews  v.  Fisa,   101   Mass. 

422;   Dunning  v.  Dean   Nat.   Bank,  61   N.  Y.   497;    19   Am.   Rep.  293; 

Sweezy   v.   Thayer,    1    Duer,   286;    Hawley   v.   Bradford,   9   Paige,   200; 

Pickett   V.   Buckner,   45   Miss.   226;    Hinchman   r.   Stiles,   9   N.   J.    Eq. 

414 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    282 

fell  short  of  a  settlement  of  the  mortgage  debt,  the  mortgagee 
may  recover  the  balance  of  the  debt  in  an  action  on  the  per- 
sonal obligation.*^ 

§  282.  Deeds  of  trust. —  Somewhat  similar  in  effect  to  mort- 
gages with  power  of  sale  are  deeds  of  trust,  in  which  the 
property  is  conveyed  to  a  trustee  in  trust  to  secure  the  cred- 
itor in  his  claim,  and  to  sell  the  property  for  the  satisfaction 
of  the  debt,  if  it  is  not  paid  at  maturity.  This  conveyance 
is  in  the  nature  of  a  mortgage,  and  is  very  often  used  to  se- 
cure an  issue  of  railroad  bonds,  so  as  to  avoid  the  necessity 
of  giving  a  mortgage  to  each  bond.  But  it  is  also  very  gen- 
erally used  in  some  of  the  Western  States  in  the  place  of  an 
ordinary  mortgage,  in  order  to  obviate  the  difficulty  of  se- 
curing a  valid  sale  of  the  premises,  which  is  so  often  experi- 

454;  Shaw  V.  Hoodley,  8  Blackf.  165;  Reid  v.  Mullins,  43  Mo.  306. 
In  Vermont  and  Michigan,  the  surplus  is  held  to  be  personalty,  and 
vests  in  the  personal  representatives  instead  of  the  widow  and  heirs. 
Varnum  v.  Meserve,  8  Allen,  158;  Smith  v.  Smith,  13  Mich.  258. 
The  surplus  is  distributed  among  the  claimants  according  to  the  priority 
of  their  respective  interests,  and  their  rights  in  case  of  a  dispute  may 
be  settled  by  a  suit  against  the  mortgagee  for  the  recovery  of  their  al- 
leged share  in  the  surplus.  Bevier  f.  Schoonmaker,  29  How.  Pr.  411; 
Cope  V.  Wheeler,  41  N.  Y.  303;  Stoever  r.  Stoever,  9  Serg.  &  R.  4.34; 
Matthews  v.  Duryea,  45  Barb.  69;  t^eynolds  v.  Hennessey,  15  R.  I. 
215.  Or  the  mortgagee  may  file  a  bill  of  interpleader,  and  compel  the 
adverse  claimants  to  settle  their  disputes.  Bleeker  v.  Graham,  2  Edw. 
Ch.  647;  The  People  V.  Ulster  Com.  Pleas,  18  Wend.  628;  Bailey  v. 
Merritt,  7  Minn.  159.  But  without  the  consent  of  the  mortgagor  the 
mortgagee  has  no  power  to  appropriate  the  money  to  any  debt  of  the 
mortgagor  which  is  not  secured  by  the  mortgage.  Johnson  v.  Thomas, 
77  Ala.  367.  In  Missouri,  the  surplus  would  go  to  the  administrator  of 
the  mortgagor.     Curtis  v.  Moore,  162  Mo.  442,  63  S.  W.  Rep.  80. 

<i  Shepherd  v.  May,  115  U.  S.  505.  See,  generally,  as  to  disposition 
of  surplus  proceeds,  after  sale,  Berner  v.  State  Bank,  125  Iowa,  438, 
101  N.  W.  Rep.  156;  Guenther  v.  Wisdom  (Ky.  1905),  84  S.  W.  Rep. 
771;  New  York  Store  Merc.  Co  v.  Thurmond,  186  Mo.  410,  85  S.  W. 
Rep.  333.  The  doctrine  of  the  text  is  not  applicable  to  preferential 
expenses  and  charges,  pending  foreclosure,  in  the  case  of  mortgages  by 
railroads  and  other  carriers.  Van  Frank  f.  St.  Louis  &  Cape  Girardeau 
R.  Co.,  89  Mo.  App.  489. 

415 


§    282  REMEDIES   INCIDENT   TO    MORTGAGES.  [PART   I. 

enced  when  the  mortgagee  exercises  the  power  of  sale.  It  is 
the  conveyance  of  a  legal  estate  in  trust  to  seenre  the  debt  and 
its  satisfaction  by  sale  upon  the  breach  of  the  condition.*- 
It  is  to  be  distinguished  from  an  assignment  for  the  benefit 
of  creditors  and  does  not  come  within  the  operation  of  laws 
which  prohibit  preferential  assignments.^'^  It  has  been  held 
that  the  mere  payment  of  the  debt  will  not  revest  title  in  the 
grantor. ••*  But  the  payment  or  tender  of  payment  will  ren- 
der the  trust  inoperative  so  far  as  the  subsequent  exercise  of 
the  power  is  concerned."  The  grantor  by  such  a  conveyance 
divests  himself  of  his  entire  legal  estate  in  possession,  and  has 
nothing  left,  against  which  execution  may  issue.  But  he 
has  a  reversionary  interest,  which  in  equity  may  be  reached 
by  a  creditor's  bill,  and  which  is  also  capable  of  alienation.^*" 
If  the  trustee  dies  or  refuses  to  execute  the  trust,  the  court 
will  appoint  another  to  take  his  place;  and  in  some  of  the 
States,  by  statute,  it  is  provided  that,  upon  the  death,  in- 
ability or  refusal  of  the  trustee  to  serve,  the  sheriff  will  be 

42  Devin  v.  Hendershott,  32  Iowa,  194;  Sherwood  v.  Saxton,  63  Mo. 
78;  Richard  v.  Holmes,  18  How.  147;  WoodVuff  v.  Robb,  19  Ohio  122; 
Chappell  V.  Allen,  38  Mo.  213.  See  Heard  v.  Baird,  40  Miss.  799; 
Lenox  v.  Reed,  12  Kan.  233;  Union  Nat.  Bank  v.  Bank  of  Kansas  City, 
136  U.  S.  223;  Plum  v.  Studebaker,  39  Mo.  162.  But  see  2  Am.  Law. 
Reg.   (N.  s.)   655.  , 

■»3  Union  Nat.  Bank  v.  Bank  of  Kansas  City,  136  U.  S.  223. 

**  Heard  v.  Baird,  40  Miss.  796.  But  the  weight  of  authority  is  in 
favor  of  holding  that  a  reconveyance  is  not  necessary,  although  a  satis- 
faction on  the  records  may  be  required.  Crosby  v.  Huston,  1  Texas,  239; 
Ingle  V.  Culbertson,  43  Iowa,  265;  McGregor  v.  Hall,  3  St.  &  P.  397; 
Woodruff  V.  Robb,  19  Ohio,  122;  Smith  v.  Doe,  26  Miss.  291. 

45  Thornton  V.  Boyden,  31  111.  210;  Heard  V.  Baird,  40  Miss.  796. 
The  trustee,  under  a  deed  of  trust,  is  vested  with  a  power,  coupled 
with  an  interest  which  survives  the  death  of  the  grantor.  Frank  v. 
Colonial  &  N.  S.  Mort.  Co.  (Miss.  1905),  38  So.  Rep.  340.  Jones  Mort. 
(6ed.)  Sec.  1792;  Markwell  v.  Markwell,  157  Mo.  326,  57  S.  W.  Rep. 
1078;  Kelsay  r.  Bank,  166  Mo.   157,  65  S.  W.   Rep.   1007. 

4«  Pettit  V.  Johnson,  15  Ark.  55;  Turner  V.  Watkins,  31  Ark.  429; 
Mclntyre  r.  Agric.  Bank,  1  Freem.  Ch.  105;  Heard  v.  Baird,  40  Miss, 
796;  Tyler  v.  Herring  (Miss.),  7  So.  Rep.  840;  2  Jones  on  Mort.,  Sec. 
1769. 

416 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    283 

authorized  to  execute  the  trust.  Or  the  deed  may  itself  pro- 
vide for  a  substitution  of  trustees.*^  But  without  express 
authority  the  trustee  can  in  no  case  delegate  his  power  to 
sell.*®  But  the  court  may,  if  they  deem  it  wise,  compel  the 
trustee  to  execute  the  trust  instead  of  appointing  another.*" 
If  there  are  two  or  more  trustees  named  as  joint  donees  of  the 
power,  the  sale  will  be  valid,  in  the  absence  of  direct  proof 
of  fraud  or  unfairness,  although  it  is  conducted  in  the  ab- 
sence of  one  of  them."**  This  class  of  deeds  of  trust  is  gov- 
erned by  the  same  equitable  rules,  which  are  applied  to  or- 
dinary trusts,  unless  there  are  statutory  provisions  intended 
to  supersede  them. 

§  283.  Contribution  to  redeem  —  General  statement. —  When 
one  of  two  or  more  persons  jointly  liable  on  a  debt  pays 

*7Lake  v.  Brown,  116  111.  83. 

48  Holden  v.  Stickney,  2  McArthur,  141;  Farmers'  Loan,  etc.,  Co.  V. 
Hughes,  11  Hun  130;  McKnight  v.  Winner,  38  Mo.  132;  Whittlesey  V. 
Hughes,  39  Mo.  13.  If  there  are  two  or  more  trustees,  upon  the  death 
of  one,  the  survivors  may  execute  the  power.  Peter  V.  Beverley,  10 
Pet.  565;  Franklin  v.  Osgood,  14  Johns.  527;  Hannah  V.  Carrington,  18 
Ark.  104.  The  trustee  is  agent  for  both  debtor  and  creditor.  Axnian 
V.  Smith,  156  Mo.  286,  57  S.  W.  Rep.  105.  The  trustee  must  be  per- 
sonally present  at  sales  under  the  power.  Kelsay  v.  Bank,  166  Mo. 
157,   6.J   S.   W.   Rep.    1007. 

*8LefIler  v.  Armstrong,  4  Iowa,  482;  Sargent  V.  Howe,  21  111.  148; 
Drane  v.  Gunter,  19  Ala.  731;  Bradley  v.  Chester  Val.  R.  R.,  36  Pa. 
St.  141.  Sales  under  the  power  are  watched  and  closely  scrutinized 
by  the  courts,  and  a  court  of  equity  will  at  any  time,  at  the  instance 
of  one  interested  in  the  property,  direct,  restrain  or  enforce  the  exercise 
of  the  power.  Goode  v.  Comfort,  39  Mo.  325 ;  Youngman  V.  Elmira, 
etc.,  R.  R.,  65  Pa.  St.  278;  Newman  v.  Jackson,  12  Wheat.  572; 
Brown  v.  Bartee,  10  Smed.  &  M.  275;  Kock  V.  Briggs,  14  Cal.  256; 
Reece  t'.  Allen.  5  Gilm.  236. 

so  Smith  V.  Black,  115  U.  S.  308.  On  the  death  of  a  trustee,  if  the 
trust  then  devolves  on  the  court,  it  appoints,  not  a  substituted  trustee, 
but  a  representative  of  the  court,  to  execute  the  trust.  In  re  Guental, 
90  N.  Y.  S.  138,  97  App.  Div.  530.  A  trustee  has  no  power  to  ap- 
point his  successor,  unless  this  power  is  expressly  conferred.  White- 
head V.  Whitehead  (Ala.  1904),  37  So.  Rep.  929;  Wilson  v.  Towle, 
36  N.  H.   129. 

KT  417 


§    283  '  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART    1. 

the  whole  debt,  he  has  the  right  to  call  upon  the  others  for 
contribution  towards  such  payment  in  proportion  to  their 
several  interests  in  the  debt.  This  liability  for  contribution 
is  an  incident  to  all  contractual  obligations,  and  the  same 
rules  of  construction  apply,  whatever  may  be  the  nature  or 
origin  of  the  debt.  In  the  present  discussion  the  liability 
for  contribution  arises  out  of  the  joint  obligation  of  several 
persons  to  answer  for  the  mortgage-debt,  either  in  their  person 
or  with  their  interests  in  the  mortgaged  premises.  It  has 
been  explained  that  when  a  person  is  entitled  to  redeem, 
and  is  interested  only  in  a  part  of  the  premises,  he  must 
pay  the  entire  debt,  and  as  against  the  others  jointly  inter- 
ested with  him,  he  becomes  subrogated  to  the  mortgagee, 
and  is  equitable  assignee  of  the  mortgage,  even  though  the 
mortgage  has  been  satisfied  on  the  records.  He  can  then,  in 
turn,  foreclose  the  mortgage  against  them  if  they  refuse  to  pay 
their  pro  rata  share  of  the  debt.  This  liability  constitutes  the 
right  to  contribution,  as  applied  to  mortgages.  It  is  not  a  per-, 
sonal  liability  resting  upon  the  persons  interested  in  the  mort- 
gaged premises;  their  interests  are  alone  liable.  Nor  can 
they  be  compelled  to  contribute;  they  have  the  right  to  re- 
fuse and  to  surrender  their  interests  to  forfeiture  under 
foreclosure.^^  This  liability  of  their  interests  depends  upon 
the  equality  or  inequality  of  their  respective  equities  in  re- 
gard to  the  mortgage  and  the  debt,  and  must,  therefore, 
vary  according  to  the  relation  of  the  parties  between  whom 
the  question  arises.     But  whatever  may  be  the  relation  of 

51  Cheeseborough  v.  Millard,  1  Johns.  Ch.  409 ;  Stevens  v.  Cooper, 
Ih.  425;  Lawrence  v.  Correll,  4  Johns.  Ch.  542;  Salem  v.  Edgerly,  33 
N.  H.  46;  Chase  v.  Woodbury,  6  Cush.  143;  Gibson  v.  Crehore,  5  Pick. 
146;  Briscoe  V.  Power,  47  111.  449;  Wilkes  v.  Vaughan  (Ark.  1904),  83 
S.  W.  Rep.  913;  Barrett  V.  Armstrong  (W.  Va.  1904),  48  S.  E.  Rep. 
140;  Blair  v.  Blair,  90  N.  Y.  S.  190,  97  App.  Div.  507.  Contribution 
will  not  lie  unless  the  payment  was  made  by  a  joint  debtor,  as  such. 
If  one  joint  debtor  buys  the  mortgaged  property  and  assumes  the  mort- 
gage debt,  as  a  part  of  the  consideration,  an  action  for  contribution 
will  not  lie.  Weidemeyer  v.  Landon,  66  Mo.  App.  520. 
418 


CH.    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    284 

these  parties  to  each  other,  the  mortgagee  cannot  be  com- 
pelled to  observe  the  equality  or  inequality  of  their  equities 
in  the  enforcement.  He  can  proceed  against  any  one  of  them, 
against  whom  he  has  a  claim  for  the  satisfaction  of  the 
mortgage,  whether  his  equity  was  inferior  or  superior.^- 

§  284.  Mortgagor  v.  his  assignees. —  Since  the  mortgagor  is 
personally  liable  to  pay  the  debt,  as  a  general  rule  he 
would  have  no  right  to  call  upon  his  assignees  to  contrib- 
ute, nor  could  his  heirs  or  devisees  claim  such  a  right. ''•'^ 
But  if  the  purchaser  assumed  the  mortgagor's  liability  as 
a  part  of  the  consideration  of  the  conveyance,  should  the 
mortgagor  be  afterwards  compelled  by  the  mortgagee  to 
pay  the  debt,  the  mortgagor  would  be  subrogated  to  the 
rights  of  the  mortgagee  under  the  mortgage,  and  could  en- 
force it  against  such  purchaser.***  Where  there  is  no  agree- 
ment on  the  part  of  the  purchaser  to  pay  the  debt,  if  the  mort- 
gage is  foreclosed,  the  purchaser  can  claim  from  the  mort- 
gagor exoneration  -for  the  full  amount  lost  by  foreclosure."* 
On  the  other  hand,  if  the  purchaser  of  the  mortgagor's  estate 
has  assumed,  in  whole  or  in  part,  the  payment  of  the  mort- 
gage-debt, he  cannot  claim  contribution  of  the  mortgagor,  as 
long  as  he  is  not  forced  to  pay  more  than  he  has  agreed  to 
pay.°" 

52  Palmer  v.  Snell,  111  111.  161. 

53Harbert'8  Case,  3  Rep.  11;  Chase  V.  Woodbury,  6  Cush.  143;  Allen 
V.  Clark,  17  Pick.  47;  Beard  v.  Fitzgerald,  108  Mass.  134;  Clowes  v. 
Dickinson,  5  Johns.  Ch.  235;  Lock  v.  Fulford,  52  111.  166;  2  Jones  on 
Mort.,  Sec.  1090. 

5<  Cox  V.  Wheeler,  7  Paige  Ch.  257;  Halsey  v.  Reed,  9  Paige  Ch.  446; 
Kinnear  v.  Lowell,  34  Me.  299;  Sweet  v.  Sherman,  109  Mass.  231; 
Lily  V.  Palmer,  51  111.  333;  Krueger  v.  Ferry,  41  N.  J,  Eq.  432;  Miller 
V.  Fasler,  42  Minn.  366;  Miller  t;.  Eisele,  42  Minn.  308;  Gerdine  v. 
Menage,  41  Minn.  417. 

65  Davis  V.  Winn,  2  Allen  111;  Downer  v.  Fox,  20  Vt.  388;  Young  f. 
Williams,  17  Conn.  393;  Burnett  V.  Denniston,  5  Johns.  Ch.  35;  Mc- 
Lean V.  Towle,  3  Sandf,  Ch.   119;  Gunst  v.  Pelham,   14  Tex.  586. 

56  Moore  f.  Shurtleff,  128  111.  370;  Gunst  r.  Pelham,  14  Tex.  580.  In 
a   purchase   of  the   mortgagor's  equity,   if  the  purchaser  assumes  the 

419 


§    285  REMEDIES   INCIDENT   TO    MORTGAGE  [PART   I. 

§  285.  Contribution  between  the  assignees  of  the  mortgagor 
—  Effect  of  release  of  one  of  them. —  If  the  mortgaged  prop- 
erty consists  of  two  or  more  parcels  of  land,  and  they  are 
simultaneously  conveyed  by  the  mortgagor  to  different  per- 
sons, and  one  of  the  parcels  is  sold  under  foreclosure  of  the 
mortgage,  the  assignee  or  grantee  of  that  parcel  has  the  right 
to  recover  from  the  assignees  of  the  other  parcels  their 
pro  rata  share  of  the  debt;  the  debt  being  divided  among 
them  in  proportion  to  the  value  of  their  respective  parcels. "^^ 
But  where  the  assignments  have  been  made  successively,  or 
at  different  times,  the  courts  have  delivered  contrary  opinions 
ki  respect  to  their  liability  for  contribution.  In  most  of  the 
States  the  rule  prevails  that  their  liability  for  contribution 
to  each  other  is  in  the  inverse  order  of  alienation;  in  other 
words,  that  the  equity  of  the  .prior  purchaser  or  assignee 
is  superior  to  that  of  the  subsequent  purchaser.  So,  if  the 
prior  purchaser  is  called  upon  to  redeem,  or  his  lot  or  parcel 
is  foreclosed,  he  becomes  an  equitable  assignee  of  the  mort- 
gage, and  may  enforce  it  against  the  subsequent  purchasers 
of  the  other  parcels,  who,  in  order  to  redeem,  must  contrib- 
ute to  the  full  value  of  their  estates  in  the  inverse  order  of 
their  alienation,  the  last  being  required  to  exhaust  his  entire 

mortgage  debt,  as  a  part  of  the  consideration,  lie  is  generally  held 
to  be  the  principal  debtor  thenceforth  and  the  mortgagor  becomes  his 
surety.  Nelson  v.  Brown,  140  Mo.  580;  Pratt  v.  Conway,  148  Mo. 
291;  Wagman  V.  Jones,  58  Mo.  App.  313.  As  to  eifeet,  upon  the  mort- 
gagor, as  to  the  statutes  of  limitations,  of  payments  subsequently  made 
by  his  assignee,  see  Reagan  v.  Williams,  185  Mo.  620,  84  S.  W.  Rep. 
959.     See  also  ante,  Sec.  253  and  note. 

57  Chase  v.  Woodbury,  6  Cush.  143;  Bailey  v.  Myrick,  50  Me.  171; 
Aiken  v.  Gale,  37  N.  H.  501;  Stevens  v.  Cooper,  1  Johns.  Ch.  425; 
Briscoe  r.  Power,  47  111.  448.  The  following  late  cases  discuss  and 
establish  the  legal  status  and  relation  of  successive  grantees,  who  assume 
the  mortgage  debt,  Stough  v.  Badger  Lumber  Co.  (Kan.  1905),  79  Pac. 
Rep.  737;  Grey  v.  Freeman  (Tex.  1905),  84  S.  W.  Rep.  1105;  Ray  V. 
Lobdell,  213  111.  389.  72  N.  E.  Rep.  1076;  Reagan  v.  Williams,  185 
Mo.  620,  84.  S.  W.  Rep.  959;  Germania  Ins.  Co.  v.  Casey,  90  N.  Y.  S. 
418,  98  App.  Div.  88;  Merriam  v.  Schmidt,  211  111.  263,  71  N.  E.  Rep. 
986;   Santee  v.  Keefe    (Iowa.   1903),  102  N.  W.  Rep.  803. 

420 


CH.   XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    285 

interest  in  the  mortgaged  property  before  there  can  be  any- 
right  of  contribution  against  a  prior  purchaser.  If,  there- 
fore, the  last  parcel  conveyed  is  sufficient  to  satisfy  the  debt, 
the  prior  purchaser  takes  his  estate  free  from  any  liability 
for  contribution.  The  inequality  of  their  equities  rests  upon 
the  doctrine  that  inasmuch  as,  after  the  first  assignment, 
the  estate  remaining  in  the  mortgagor  became  the  primary 
fund  for  the  satisfaction  of  the  debt,  the  second  and  other 
subsequent  purchasers  took,  in  respect  to  their  relative  liabil- 
ities under  the  mortgage,  only  such  equities  as  the  mortgagor 
had  at  the  time  of  the  successive  conveyances  to  them.°*  In 
a  few  of  the  States  it  is  held  that  the  equities  are  equal  be- 
tween assignees  of  the  mortgagor,  whether  the  alienations 
are  simultaneous  or  successive,  and  this  opinion  finds  strong 
support  in  Judge  Story."*®  But  it  is  believed  that  the  pre- 
ponderance of  authority  is  in  favor  of  the  former  theory, 
and  it  may  be  accepted  as  the  prevailing  rule  in  this  country. 
This  question  of  priority  is,  however,  always  subject  to  the 
agreement  of  the  parties.*"  But  if  the  mortgagee  should 
release  one  of  the  assigned  lots  from  the  lien  of  the  mort- 
gage without  the  consent  of  the  other  assignees  and  after 
the  assignment  of  the  other  lots  to  them,  it  would  discharge 

58  Gushing  V.  Ayer,  25  Me.  383;  Shepherd  v.  Adams,  32  Me.  64; 
Brown  r.  Simons,  44  X.  H.  475;  Lyman  r.  Lyman,  32  Vt.  79;  Bradley 
V.  George,  2  Allen,  392;  Gill  V.  Lyon,  1  Johns.  Ch.  447;  Jumel  v^ 
Jumel,  7  Paige  Ch.  591;  Patty  v.  Pease.  8  Paige  Ch.  277;  Nailer  v. 
Stanley,  10  Serg.  &  R.  450;  Henkle  v.  AUstadt,  4  Gratt.  284;  Jones  l?. 
Myrick,  8  Gratt,  179;  Stoney  v.  Shultz,  1  Hill  Ch.  (S.  C.)  500; 
Norton  v.  Lewis,  3  S.  C  25;  Mobile  Dock,  etc.,  Co.  v.  Kiider,  35  Ala. 
717;  Niles  v.  Harmon,  80  111.  396;  Beard  v.  Fitzgerald,  105  Mass.  134; 
Mason  v.  Payn^  Walk.  (Mich.)  459;  McCullom  v.  Turpie,  32  Ind.  146; 
Mahagan  v.  Meade,  63  N.  H.  570;  Moore  v.  ShurtleflF,  128  111.  370; 
Deavitt  v.  Judevine,  60  Vt.  695;  Case  Threshing  Machine  Co.  v. 
Mitchell    (Mich.),  42  N.  W.  Rep.   151,  74  Mich.  679. 

89  Green  v.  Ramage,  18  Ohio,  428;  Stanley  v.  Stocks,  I.  Dev.  Eq.  314; 
Barney  v.  Myers,  28  Iowa,  1;  Jobe  v.  O'Brien,  2  Humph.  34;  Dickey 
r.  Thompson,  8  B.  Mon.  312;  Story's  Eq.  Jur.,  Sec.  1233  b,  and  note. 
Huff  V.  Farwell,  67  Iowa  298. 

80  Vogel  V,  Shurtliff,  28  111.  App.  516. 

421 


§   286  REMEDIES   INCIDENT   TO   MORTGAGES.  [PART    I. 

the  other  lots  from  liability  under  the  mortgage,  on  the 
irround  that  the  rights  of  these  other  assignees  had  been 
i.ijuriously  affected  by  the  consequent  loss  of  their  claim 
against  the  assignee  who  had  been  released  for  contribution 
I  r  exonerations.  But  if  the  release  was  made  before  the  as- 
signment of  the  other  lots,  the  release  would  have  no  effect 
on  the  lien  of  the  mortgage  over  the  other  lots."^  So,  also, 
any  agreement  between  the  mortgagor  and  his  assignees,  in 
respect  to  the  partition  of  the  mortgage  liability  between 
them,  will  have  no  effect  on  the  mortgage  in  the  hands  of  the 
holder  of  the  mortgage,  unless  he  has  assented  to  such  par- 
tition.®'^ 

§  286.  Contribution  between  the  surety  and  the  mortgagor. 
—  Where  the  surety,  because  of  his  personal  liability,  pays 
the  mortgage  debt,  such  payment  will  operate  as  an  assign- 
ment of  the  mortgage  to  him,  and  he  can  enforce  the  mort- 
gage to  its  full  value  against  the  mortgagor,  his  heirs,  and 
even  his  assignees  for  value.  He  is  only  secondarily  liable, 
the  mortgagor,  and  with  him  the  mortgaged  premises,  being 
treated  as  the  primary  fund  out  of  which  the  debt  is  to 
be  satisfied,  and  until  they  have  been  exhausted  the  surety 
can  claim  complete  exoneration.®^  The  widow  who  releases 
the  dower  right  in  the  mortgaged  lands  is  so  far  considered 
a  surety  that  she  can  make  claim  of  exoneration  against  the 

eiLibbey  v.  Tufts  (N.  Y.),  24  N.  E.  Rep.  12;  Groesback  v.  Matti- 
son,  43  Minn.  547. 

0- DeHaven  v.  Musselman  (Ind.),  24  N.  E.  Rep.  171;  Groesbach  i". 
Mattison,  4.3  Minn.  547.  Where  it  is  a  part  of  the  consideration  of  the 
purchase  by  a  grantee  that  he  will  pay  the  debt,  the  mortgagee  can 
sue  him  direct  to  enforce  payment  thereof,  in  Illinois.  Merriam  l'. 
Schmidt,  211  111.  263,  71  N.  E.  Rep.  986. 

63  Cheesebrough  v.  Milliard,  1  Johns.  Ch.  409;  Hayes  r.  Ward,  4 
Johns.  Ch.  123;  Ottman  V.  Moak,  3  Sandf.  Ch.  431;  Root  r.  Bancroft, 
10  Mete.  48;  Mathews  v.  Aiken,  1  Comst.  595;  Bk.  of  Albion  v.  Burns, 
45  N.  Y.  170;  Burton  v.  Wheeler,  7  Ired.  Eq.  217;  Bk.  of  S.  C.  V. 
Campbell,  2  Rich.  Eq.  179;  RiHings  V.  Sprague,  49  111.  511;  McHenry 
V.  Cooper,  27  Iowa,  137;  Canaday  v.  Boliver,  25  S.  C.  547. 
422 


CH,    XI.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §   287 

estate  of  the  deceased  husband,  and  compel  the  enforcement 
of  a  chattel  mortgage  given  for  the  same  debt,  in  her  own 
behalf.®*  The  same  rule  applies  where  the  one  debt  is  se- 
cured by  two  mortgages  on  separate  pieces  of  property,  one 
of  which  only  is  given  by  the  primary  debtor,  the  other 
mortgage  is  in  the  nature  of  a  collateral  security,  and  the 
primary  debtor's  mortgage  must  exonerate  the  owners  of  the 
other  mortgaged  lands.®''  But  if  the  surety  be  also  the  mort- 
gagor and  the  other  co-debtor  the  principal,  and  the  latter 
pays  the  debt,  he  will  not  be  subrogated  to  the  rights  of  the 
mortgagee.  He  is  the  principal,  and  can  claim  contribution 
or  exoneration  of  no  one.®* 

§  287.  Between  heirs,  widow,  and  devisees  of  the  mortgagor. 
—  If  the  mortgagor  dies,  and  the  mortgaged  premises  descend 
to  his  widow  and  heirs,  or  are  devised  by  will  to  several 
parties,  their  equities  being  equal,  if  one  of  them  redeems,  the 
mortgage  will  be  assigned  to  him,  and  he  may  foreclose 
the  same  against  the  others  unless  they  contribute  their  pro 
rata  share  towards  redemption.  They  are  all  volunteers, 
whether  they  be  heirs  or  devisees,  and  it  is  likely  —  if  a 
part  of  the  mortgaged  premises  were  devised  and  a  part 
descended  to  the  heirs  —  there  would  be  a  right  in  favor  of 
the  devisee  to  contribution  from  the  heir,  and  vice  versa.'^'' 

«*GoTe  V.  Townsend,  105  N.  D.  228.  Where  payment  of  a  mortgafre 
is  necessary,  to  protect  the  homestead  of  the  widow,  she  is  entitled  to 
contribution  from  the  heirs,  and  equity  will  give  her  a  lien  on  the 
interest  of  the  heirs  for  their  share  of  the  mortgage  debt.  Dinsmoore 
V.  Rowse,  211  111.  .317,  71  N.  E.  Rep.  100.3.  But  see  as  to  payment 
by  the  heir  of  a  second  mortgagee,  of  a  first  mortgage,  with  reference 
to  his  right  to  proceed  against  the  owner  of  the  equity  of  redemption, 
who  has  not  agreed  to  pay  the  first  mortgage.  Brethauer  v.  Schorer, 
77   Conn.   575,   60   Atl.  Rep.    125. 

83  Canaday  v.  Boliver,  25  S.  C.  507. 

0"  Crafts  V.  Crafts,  13  Gray,  362;  Killborn  v.  Robins,  8  Allen,  471; 
Cherry  V.  Monro,  2  Barb.  Ch.  618;  Morris  Admr.  r.  Davis,  83  Va. 
297;  Germania  Ins.  Co.  v.  Casey,  90  N.  Y.  S.  418.  08  App.  Div.  88; 
Reagan  v.  Williams,  185  Mo.  020,  84  S.  W.  Rep.  059. 

«Carll   V.   Butman,   8   Me.    102;    Gibson   v.   Crehore,   5    Pick.    146; 

423 


§    288  REMEDIES  INCroENT  TO  MORTGAGES.  [PART  I, 

§  288.  Between  the  mortgaged  property  and  the  mortgagor's 
personal  estate. —  Upon  the  death  of  the  mortgagor,  leaving 
the  mortgage  unsatisfied,  a  claim  for  contribution  or  rather 
exoneration  sometimes  exists  against  the  mortgagor 's  personal 
estate  in  favor  of  the  real  estate  covered  by  the  mortgage. 
The  claim  is  founded  upon  the  doctrine  that  the  burden  was 
imposed  upon  the  real  estate  for  the  benefit  of  the  personal 
estate,  and  as  between  the  heirs  and  next  of  kin  the  latter 
should  bear  the  loss.**  Only  the  widow,  heirs  and  devisees 
can  claim  this  right  of  exoneration.  Purchasers  from  the 
heirs,  and  voluntary  purchasers  from  the  mortgagor,  cannot; 
nor  can  the  heir  or  devisee  exercise  the  right  if  they  have 
parted  with  the  equity  of  redemption,  notwithstanding  by 
the  terms  of  their  conveyance  they  are  bound  to  see  to  the 
payment  of  the  mortgage.*®  This  claim  is  more  clearly  con- 
ceded, where  the  same  debt  was  secured  also  by  a  mortgage 
of  the  personalty.''*  It  can  be  enforced  only  against  the  per- 
sonal representatives  and  residuary  legatees.  If,  therefore, 
the  personal  estate  has  been  bequeathed  to  others  in  the  shape 
of  general  or  specific  legacies,  the  right  to  exoneration  is 

Houghton  V.  Hapgood,  13  Pick.  158;  Swaine  v.  Ferine,  5  Johns.  Ch. 
490;  Foster  v.  Hilliard,  1  Story,  77;  Jones  v.  Sheward,  2  Dev.  &  B. 
Eq.  179;  Merritt  v.  Hosmer,  11  Gray,  296;  Bell  v.  Mayor  of  N.  Y.,  10 
Paige  Ch.  49;  Drew  V.  Rust,  36  N.  H.  343;  Eaton  v.  Simonds,  14  Pick. 
98;  Dinsmoor  V.  Rowse,  211  111.  317,  71  N.  E.  Rep.   1003. 

68  Cope  V.  Cope,  2  Salk.  449;  Patton  v.  Page,  4  Hen.  &  M.  449; 
Henagan  v.  Harllee,  10  Rich.  Eq.  285;  Trustees,  etc.,  v.  Dickson,  1 
Freem.  Ch.  494."  But  this  is  not  the  case,  where  the  mortgage  was 
executed  by  a  prior  owner,  and  the  ancestor  purchased  the  property 
subject  to  the  mortgage.  The  heir  or  devisee  must,  in  such  a  case, 
pay  the  mortgage.  Tweddle  v.  Tweedle,  2  Bro.  Ch.  101 ;  Cumberland 
r.  Codington,  supra;  Brethauer  v.  Schorer,  77  Conn.  575,  60  Atl.  Rep. 
125. 

«9  Goodburn  v.  Stevens,  1  Md.  Ch.  42 ;  Lupton  v.  Lupton,  2  Johns. 
Ch.  614;  Cumberland  r.  Codington,  3  Johns.  Ch.  229;  Lockhardt  V. 
Hardy,  9  Beav.  379;  Haven  v.  Foster,  9  Pick.  112;  Taylor  v.  Taylor, 
8  B.  Mon.  (Ky.)  419;  Claws  V.  Dickenson,  6  Johns,  Ch.  (N.  Y.)  236; 
3  Amer.  &  Eng.  Dec.  in  Eq.  206. 

70  Gore  v.  Townsend,  105  N.  C.  228. 
424 


CH.    XI.]  REMEDIES   INCIDENT   TO    MORTGAGES.  §    290 

lost.'^  Nor  odn  the  right  be  exercised  if  the  estate  of  the 
mortgagor  is  insolvent;  and  whether  the  estate  is  insolvent 
or  not,  it  cannot  be  enforced  against  property  which  has 
been  levied  upon,  nor  will  the  right  of  exoneration  in  any 
case  take  precedence  to  liens  held  by  creditors  upon  the 
personal  property."  In  New  York  there  will  be  no  such 
claim  for  exoneration,  unless  the  mortgagor  has  by  will 
expressly  made  the  payment  of  the  debt  a  charge  upon  the 
personalty." 

§  289.  Special  agn:eeineiits  aflfecting  the  rights  of  contribu- 
tion and  exoneration. —  If,  in  any  case  where  the  right  of 
contribution  or  exoneration  exists  by  law,  the  parties  to  the 
mortgage  agree  that  one  or  more  parcels  covered  by  the 
mortgage  should  be  released  from  the  incumbrance,  such 
agreement  will  be  enforced  between  the  parties  and  their 
subsequent  assignees.  But  in  no  case  will  it  be  permitted 
to  affect  or  alter  the  equities  of  parties  who  had  previously 
become  interested  in  the  mortgaged  property."*  And  if  the 
mortgagee  releases  one  part  of  the  mortgaged  premises,  after 
the  mortgagor  had  assigned  another  part,  the  mortgagee  can 
only  enforce  the  mortgage  against  the  assignee  to  an  amount 
determined  by  the  proportion  which  the  value  of  the  entire 
mortgaged  premises  bears  to  the  value  of  such  assigned  par- 
cel." 

§  290.  Marshalling  of  assets  between  successive  mortgagees. 
—  When  there  are  two  mortgages  upon  one  parcel  of  land, 

TiCope  V.  Cope,  2  Salk.  449;  Mansell's  Estate,  1  Pars.  Eq.  Cas.  367; 
Gibson  f.  McCormick,  10  Gill  &  J.  B.-i;  Torr's  Estate,  2  Rawle,  2.50. 

72  Gibson  v.  Crehore,  3  Pick.  475 ;  Church  v.  Savage,  7  Cush.  440. 

TsMoseley  V.  Marshall,  27  Barb.  42;  Rapalye  V.  Rapalye,  lb.  610; 
Wright  V.  Holbrook,  32  N.  Y.  587. 

74  Welsh  t".  Beers,  8  Allen,  151;  Bryant  V.  Damon,  6  Gray,  5(J4; 
Cheesebrough  V.  Milliard,  1  Johns.  Ch.  425. 

'"Stevens  v.  Cooper,  1  Johns.  425;  Stuyvesant  r.  Hall,  2  Barb.  Ch. 
151;  Parkham  v.  Welsh,  19  Pick.  231;  Inglehart  v.  Crane,  42  111.  261; 
Taylor  v.  Short,  27  Iowa  361,  1  Am.  Rep.  280. 

425 


§    290  REMEDIES   INCIDENT   TO    MORTGAGES.  [p^ART  I. 

and  the  first  mortgage  covers  another  parcel  which  is  not 
included  in  the  second,  if  the  parcel  included  in  both  mort- 
gages is  not  sufficient  to  satisfy  both  debts,  equity  gives  the 
junior  mortgagee  the  right  to  call  upon  the  senior  mortgagee 
to  exhaust  the  parcel  not  covered  by  both  mortgages,  before 
he  forecloses  against  the  other  parcel.  But  equity  will  not 
compel  the  first  mortgagee  to  satisfy  himself  in  that  manner, 
if  it  would  be  detrimental  to  his  interests  or  inconvenient 
to  him.  In  such  a  case,  however,  the  court  will  direct  him 
to  assign  his  mortgage  to  the  junior  mortgagee,  who  may 
then  foreclose  against  the  parcel  not  covered  by  his  own 
mortgage.'"  An  exception  to  this  rule  of  marshalling  of 
assets  between  two  mortgages  is  however  recognized  in  favor 
of  a  wife  who  joins  in  the  execution  of  one  mortgage  for 
the  purpose  and  with  the  intention  of  relinquishing  her 
homestead,  and  reserves  her  homestead  in  the  execution  of 
the  second  mortgage.  The  second  mortgagee  cannot,  on  the 
principle  set  forth  above,  claim  the  right  of  satisfying  his 
claim  against  the  homestead.''^  Not  only  is  this  the  case,  but 
the  first  mortgagee  can  be  required  to  exhaust  his  lien  on  the 
mortgaged  property,  which  is  not  covered  by  the  homestead 
claim,  before  he  is  permitted  to  enforce  such  lien  against  the 
homestead  estate.''* 

76  Lanoy  V.  Athol,  2  Atk.  446 ;  Evertson  v.  Booth,  19  Johns.  Ch.  486 ; 
Cheesebrough  v.  Milliard,  1  Johns.  Ch.  412;  Warren  V.  Warren,  30 
Vt.  530;  Eeilly  v.  Mayor,  12  N.  J.  Eq.  55;  Baine  v.  Williams,  10  Smed. 
&  M.  113;  Ingelhart  v.  Crane,  42  111.  261;  Swigert  v.  Bk.  of  Ky.,  17  B. 
Mon.  285;  Miami  Ex.  V.  U.  S.  Bank,  Wright  (Ohio)  249;  Conrad  v. 
Harrison,  3  Leigh,  532;  Bk.  of  S.  C.  v.  Mitchell,  Rice  Eq.  389;  Marr 
r.  Lewis,  31  Ark.  203,  25  Am.  Rep.  553.  So,  if  a  mortgagee,  has  a 
superior  lien  to  that  of  a  judgment  creditor,  he  will  be  compelled  to 
resort  first  to  the  fund  on  whioh  he  alone  has  a  lien.  Hall  v.  Stevenson, 
19  Oregon,  153;  Cheesebrough  v.  Milliard,  1  Johns.  Ch.  (N.  Y.)  409. 
And  the  converse  of  this  rule  is  also  enforced,  in  favor  of  the  mort- 
gagee, if  a  judgment  creditor  has  other  security.  Robison's  App.  117  Pa. 
628;    Bank  v.  North,  4  Johns.  Ch.    (N.   Y.)    370. 

"Mitchleson  v.  Smith  (Neb.),  44  N.  W.  Rep.  871;  Horton  v.  Kelly, 
40  Minn.   193;  McCreery  v.  Schaffer,  26  Neb.   173. 

"Horton  v.  Kelly,  40  Minn.  193;  McCreery  v.  Schaffer,  26  Neb. 
426 


CH.    XI.]  REMEDIES   INCIDENT   TO    MORTGAGES.  §    290 

173.  The  doctrine  of  marshalling  only  applies  between  creditors.  And 
between  debtor  and  creditor  the  right  does  not  exist.  A  mortgagor 
cannot  deprive  the  mortgagee  of  his  right  to  proceed  either  on  the  debt, 
or  against  the  land.  Rogers  v.  Myers,  68  111.  92.  And  if  the  mort- 
gage covers  both  homestead  and  other  property,  the  mortgagor  cannot 
compel  the  mortgagee  to  resort  first  to  the  other  security,  to  save  the 
homestead.  Plain  r.  Roth,  107  111.  588.  See,  generally,  for  late  cases, 
on  marshalling  assets,  between  mortgagees  and  others.  2  Amer.  &  Eng. 
Dec.  in  Eq.  429. 

427 


PART  II. 


EXPECTANT,  EXECUTORY  AND  EQUITABLE 
INTERESTS. 

Chapter  XII.  Reversions. 

XIII.  Remainders. 

XIV.  Uses  and  Trusts. 

XV.  Executory  Devises. 

XVI.  Powers. 

XVII.  Incorporeal  Hereditaments. 

XVIII.  Licenses. 


4e9 


CHAPTER  XII. 

"  REVERSION." 

Section   291.  Definition. 

292.  Reversion  —  Assignable  and  devisable. 

293.  Reversion  —  Descendible  to  whom. 

294.  Dower  and  curtesy  in  reversions. 

295.  Rights  and  powers  of  the  reversioner. 

§  291.  Definition. —  A  reversion  is  that  estate  which  re- 
mains to  an  owner  of  land  after  he  has  conveyed  away  a 
particular  estate.  It  is  a  vested  estate  of  future  enjoyment, 
the  possession  of  which  is  postponed  until  the  determination 
of  the  estate  granted.  There  is  always  a  reversion  as  long 
as  the  entire  fee  has  not  been  exhausted.  Thus,  after  any 
number  of  successive  estates  for  life  or  for  years,  there  is 
still  a  reversion  left  in  the  grantor.  So  also  is  there  a  re- 
version after  an  estate-tail,  although  there  was  none  after 
the  fee  conditional  at  common  law,  which  the  statute  **de 
donis  "  converted  into  an  estate-tail.^  But  where  one  grants 
a  base  or  determinable  fee,  since  what  is  left  in  him  is 
only  a  right  to  defeat  the  estate  so  granted  upon  the  hap- 
pening of  a  contingency,  there  is  no  reversion  in  him.  That 
is,  he  has  no  future  vested  estate  in  fee,  but  only  what  is 
called  a  naked  possibility  of  reverter,  which  is  incapable  of 
alienation  or  devise,  although  it  descends  to  his  heirs.''    But 

1  2  Washburn  on  Real  Prop.  737,  738;  2  Cruise  Dig.  335. 

2  2  Cruise  Dig.  335 ;  2  Washburn  on  Real  Prop.  739 ;  Ayres  v.  Falk- 
land. 1  Ld.  Raym.  326;  Cook  r.  Bisbee,  18  Pick.  529;  The  State  v.  Brown. 
27  N.  J.  L.  20.  Carving  out  a  part  of  the  estate  held  by  the  grantor 
gives  rise  to  the  terms  "  particular  "  estate,  as  applied  to  that  granted. 
and  the  right  reserved  to  have  the  rest  of  the  estate  "  revert,"  on  the 
termination  of  the  "particular"  estate  denominates  this  latter  estate 
the  "reversion."  Williams  Real  Prop.  241;  2  Bl.  Com.  165;  1  TifTuty 
Real  Prop.  Sec.  113,  p.  270. 

431 


§  291  REVERSION.  [part  IL 

where  the  particular  estate  is  an  estate  upon  limitation  and 
more  particularly  where  it  is  limited  by  the  life  of  a  person, 
or  by  a  contingent  event,  which  may  cause  it  to  last  during 
some  life,  the  estate  will  not  be  such  a  determinable  or  quali- 
fied fee  as  does  not  admit  of  a  reversion,  although  the  estate 
be  granted  to  A.  and  his  heirs.  Thus,  a  limitation  to  A. 
and  his  heirs  during  the  widowhood  of  B.  or  the  residence 
of  C.  in  Kome,  would  be  a  life-estate,  and  there  would  be  a 
reversion  left  in  the  grantor  instead  of  a  possibility  of  re- 
verter.^ A  grant  to  A.  and  his  heirs,  as  long  as  a  tree 
stands,  would  likewise  leave  a  reversion  in  the  grantor.*  But 
a  grant  to  A,  and  his  Iieirs  until  B.  returns  from  Rome 
would  be  a  fee  upon  limitation,  and  since  it  is  doubtful  if  the 
contingency  will  happen,  and  if  it  does  not,  the  estate  be- 
3omes  an  absoFute  fee  in  the  grantee,  the  grantor  has  only 
a  possibility  of  reverter,  and  not  a  reversion.^  And  a  re- 
version arises  where  there  is  a  particular  estate  created  by 
operation  of  law,  as  in  the  case  of  dower  or  curtesy."  Not 
only  is  there  a  reversion  in  the  case  of  an  owner  of  the  fee 
parting  with  a  portion  of  it,  but  it  ^ists,  whatever  may  be 

3  1  Prest.  Est.  442;  The  State  v.  Brown,  27  N.  J.  L.  20;  McKelway  v. 
Seymour,  29  N.  J.  L.  329. 

*  1  Prest.  Est.  440 ;  1  Washburn  on  Real  Prop.  90 ;  Com.  V.  Hackett, 
102  Pa.  St.  505. 

5  1  Washburn  on  Real  Prop.  90;  1  Prest.  Est.  441. 

8  It  is  so  far  a  reversion  that  if  the  reversioner  should  die  during 
the  life-time  of  the  tenant  in  dower  or  curtesy,  the  wife  or  husband, 
respectively,  of  the  reversioner  would  have  no  dower  or  curtesy  in  such 
lands.  Dos  de  dote  peti  non  debet.  Cook  V.  Hammond,  4  Mason,  485; 
Geer  v.  Hamblin,  1  Me.  54;  Dunham  v.  Osborn,  1  Paige  Ch.  634; 
Reynolds  v.  Reynolds,  5  Paige  Ch.  161;  SaflFord  v.  SaflFord,  7  Paige 
Ch.  259;  Co.  Lit.  31  a;  4  Kent's  Com.  65;  2  Washburn  on  Real  Prop. 
740.  But  if  the  widow  of  the  ancestor  has  not  had  her  dower  set  out, 
■when  the  widow  of  an  heir  demands  an  assignment,  the  latter  widow 
may  have  her  dower  set  out  in  all  the  property,  subject,  however,  to 
be  subsequently  defeated  pro  tanto  by  the  assignment  of  the  dower  to 
the  senior  widow.  1  Cruise  Dig.  164;  Hitchens  v.  Kitchens,  2  Vern. 
405;  Greer  r.  Hamblin,  supra;  Elwood  V.  Klock,  13  Barb.  50;  Robin- 
son r.  Miller,  2  B.  Mon.  288. 
482 


CH.   Xn.]  REVERSION.  §  292 

the  estate,  whether  in  tail,  for  life,  or  for  years,  out  of  which 
a  less  estate  has  been  carved/ 

§  292.  Reversion  assignable  and  devisable. —  The  reversion 
may  be  assigned  or  devised  as  freely  as  an  estate  in  posses- 
sion —  subject,  of  course,  to  the  prior  particular  estate.  It 
cannot  be  conveyed  by  the  common-law  conveyance  of  feoff- 
ment, since  the  reversioner  could  not  deliver  actual  seisin. 
But  it  may  be  transferred  by  grant  in  the  nature  of  a  release, 
or  by  any  of  the  deeds  operating  under  the  Statute  of  Uses.* 
But  the  statement  that  a  reversion  cannot  be  conveyed  by 
feoffment,  is  correct  only  when  the  particular  estate  already 
granted  is  a  freehold.  If  the  particular  estate  is  less  than  a 
freehold,  as  an  estate  for  years,  the  actual  seisin  is  in  the 
reversioner,  and  he  may  make  a  conveyance  of  his  estate  by 
feoffment.®  At  common  law  it  was  necessary  to  obtain  the 
consent  of  the  tenant  of  the  particular  estate  for  the  effective 
transfer  of  the  reversion.  This  was  called  the  attornment,  a 
mutual  obligation  upon  tenants  and  reversioner  which  prc- 

7  2  Washburn  on  Real  Prop.  730;  2  Cruise  Dig.  335,  336.  vVhere  land 
is  deeded,  upon  condition  that  it  shall  be  used  for  a  specific  purpose,  or 
revert  to  the  grantor,  upon  the  failure  to  so  use  it,  it  reverts  to  the 
grantor.  Green's  Admr.  V.  Irvine  (Ky.  1902),  66  S.  W.  Rep.  278.  A 
deed  conditioned  upon  the  support  and  maintenance  of  the  grantor, 
during  life,  is  a  conditional  deed,  on  breach  of  which,  the  land  re- 
verts to  the  grantor,  in  Missouri.  McAnaw  v.  Tiffin,  143  Mo.  667.  45 
S.  W.  Rep.  656.  A  deed  conditioned  for  the  support  of  tlie  grantor 
unless  apt  words  of  reverter  are  used,  on  breach  of  the  condition,  con- 
veys the  fee.  Studdard  v.  Wells,  120  Mo.  25,  25  S.  W.  Rep.  201.  For 
reverter  of  land  acquired  by  condemnation,  on  abandonment,  see, 
Remey  v.  Iowa  Cent.  Co.,  89  N.  W.  Rep.  218.  But  where  'the  legal 
eflfect  of  the  condemnation  is  to  vest  the  absolute  title  to  the  land  in 
the  company,  no  reverter,  on  abandonment,  results.  Wood  r.  Mobile 
Co.,  107  Fed.  Rep.  846,  47  C.  C.  A.  9.  For  reversions  in  grants  for 
eleemosynary  or  religious  purposes,  where  grant  provides  for  reverter 
on  failure  to  use  land  for  such  purposes,  see.  Gen.  Ass.  Presby.  Ch.  v. 
Alexander,  46  S.  VV.  liep.  503;  Green  r.  O'Connor  (R.  I.),  19  L.  R.  A. 
262;  WillB  V.  Davidson,  54  N.  J.  Eq.  659,  35  L.  R.  A.  113. 

8  2  Washburn  on  Real  Prop.  738. 

»Co.  Lit.  48  b;   Williams  on  Real  Prop.  242. 

28  433 


§  293  REVERSION.  [part  H. 

vailed  under  the  feudal  system.  But  it  was  abolished  by 
statute  in  the  reig:n  of  Queen  Anne.^"  But  a  reversion  cannot 
be  granted  to  commence  in  the  future,  any  more  than  an 
estate  in  possession,  except  by  way  of  a  future  use.*^  The 
reversion  might  be  carved  up  into  two  or  more  estates,  but 
each  estate  must  be  so  assigned  that  it  shall  take  effect  in 
possession  immediately  after  the  determination  of  the  pre- 
ceding estate. 

§  293.  Reversion  descendible  to  whom. —  Under  the  com- 
mon-law maxim  of  descent,  seisina  facit  stipitem  non  jus, 
the  reversion  can  only  descend  to  the  heirs  of  the  person 
who  was  last  seised  in  fact.  If  a  person  grants  a  life  estate 
or  other  freehold  estate  less  than  a  fee,  his  heirs  could  inherit 
the  reversion,  but  if  they  should  in  turn  die  before  the  de- 
termination of  the  particular  estate  of  freehold,  only  those 
who  can  trace  their  descent  as  heir  from  the  grantor  could  in- 
herit from  such  heirs.^^  If,  however,  the  reversion  is  assigned 
or  devised,  or  is  sold  under  levy  of  execution,  such  purchaser 

10  2  Washburn  on  Real  Prop.  738 ;  Williams  on  Real  Prop.  247.  This 
statute  is  generally  recognized  as  in  force  in  the  United  States.  See 
Burden  r.  Thayer,   13  Mete.  78;   Coker  v.  Pearsall,  6  Ala.  542. 

11  2  Washburn  on  Real  Prop.  738 ;  1  Prest.  Est.  89 ;  2  Cruise  Dig.  336 ; 
Jones  V.  Roe,  3  T.  R.  93.  A  conveyance  of  a  tract  of  land  to  one,  for 
life,  with  remainder  to  grantor's  heirs,  leaves  an  absolute  power  of 
disposition  in  the  grantor,  as  to  the  reversion,  since  he  is  the  first 
reversioner,  in  order  of  time.  Akers  v.  Clark,  184  111.  136,  56  N.  E. 
Rep.  296.  An  execution  sale  of  property,  while  in  possession  of  the 
grantee,  who  was  to  use  the  land  for  a  specific  purpose,  with  reversion 
to  the  grantor  on  failure  to  so  use  it,  does  not  divest  the  reversion,  in 
Arkansas.  Pettitt  v.  Norman  Institute,  67  Ark.  430,  55  S.  W.  Rep. 
485.  A  mortgage  by  a  lessor  on  his  reversionary  interest  in  the  de- 
mised premises,-  imposes  no  limitation  on  his  rights.  Bradley  &  Co. 
V.  Peabody  Coal  Co.,  99  111.  App.  427.  A  lessee  purchasing  a  mort- 
gage of  the  fee,  can  hold,  possession,  as  against  a  reversioner,  until 
payment  of  his  mortgage,  as  he  is  considered  a  mortgagee  in  possession, 
in  New  York.     Barson  v.  Mulligan,  73  N.  Y.  S.  262,  66  App.  Div.  486. 

12  2  Washburn  on  Real  Prop.  740,  741;  4  Kent's  Com.  385;  Williams 
on  Real  Prop.  100,  101;  3  Cruise  Dig.  142;  Cook  v.  Hammond,  4  Mason, 
467;  Miller  v.  Miller,  10  Mete.  393. 

434 


CH.    XII.]  REVERSION.  §  294 

or  devisee  would  constitute  a  new  stock  of  descent,  and  his 
heirs  would  take  the  reversion  as  if  it  had  been  an  estate  in 
possession."  The  above  rule  only  applies  where  the  particu- 
lar estate  is  a  freehold.  If  it  be  a  term  of  years — as  will  be 
more  fully  explained  in  treating  of  remainders — the  tenant 
holds  the  possession  as  a  quasi-hailee  of  the  reversioner,  the 
latter  is  deemed  to  be  actually  seised;  and  so  also  would  be 
his  heirs  before  the  expiration  of  the  estate  for  years.^*  But 
this  common-law  doctrine  has  been  abrogated  in  most,  if  not 
all,  the  States  of  this  country,  so  that  it  possesses  at  present 
but  little  practical  importance.^'' 

§  294.  Dower  and  curtesy  in  reversions  and  remainders. — 

The  wife  or  husband  of  the  reversioner  will  not  have,  respec- 
tively, dower  or  curtesy  in  the  reversion  unless  the  particu- 
lar estate  is  less  than  a  freehold,  or  unless  it  determines  dur- 
ing the  life-time  of  the  reversioner.  The  vesting  of  these  es- 
tates requires  actual  seisin  in  the  husband  or  wife,  and,  as 
has  been  shown  in  the  previous  paragraph,  the  reversioner  is 
not  a<3tually  seised  when  the  particular  estate  is  a  freehold.'" 

13  1  Wushbiirn  on  Real  Prop.  741;  Williamson  Real  Prop.  100,  101;  4 
Kent's  Com."  386.  But  see,  Pettitt  v.  Norman  Inst.,  67  Ark.  430,  55 
S.   VV.   Rep.   485. 

"Co.  Lit.  15  a;  2  Washburn  on  Real  Prop.  741. 

15  2  Washburn  on  Real  Prop.  741.  See  post.  Chapter  on  Title  by  De- 
vise. 

10  2  Washburn  on  Real  Prop.  741;  2  Cruise  Dig.  338;  4  Kent's  Com. 
39;  Brooks  v.  Everett,  13  Allen,  458;  Robinson  v.  Codman,  1  Sumn. 
1.30;  Dunham  v.  Osborn,  1  Paige  Ch.  634;  Durando  p.  Durando,  23  N. 
Y.  331;  Shoemaker  v.  Walker,  2  Serg.  &.  R.  556;  Arnold  V.  Arnold,  8 
B.  Mon.  202.  And  if  the  husband  sells  his  reversion  during  the  con- 
tinuance of  the  prior  freehold  estate,  the  wife  loses  all  possibility  of 
acquiring  the  dower  right  by  the  determination  of  the  particular  es- 
tate. Gardner  v.  Greene,  5.  R.  I.  104;  Apple  v.  Apple,  1  Head.  348. 
As  to  remainders.  Watson  r.  Watson,  150  Mass.  84.  Under  the  New 
York  statute,  dower  will  not  attach  to  a  contingent  remainder,  ex- 
pectant upon  a  life  estate.  Ward  v.  Ward,  131  Fed.  Rep.  940;  .Jack- 
son V.  Walters,  83  N.  Y.  S.  096,  86  App.  Div.  470.  The  statute  of 
limitations  would  not  begin  to  run  against  heirs  of  a  married  woman, 

435 


§  295  REVERSION.  [part   IT. 

§  295.  Rights  and  powers  of  the  reversioner. —  It  may  be 
generally  stated,  that  the  reversioner  has  all  the  powers  and 
rights  which  the  tenant  of  an  estate  in  remainder  would  have. 
He  can  maintain  his  action  for  waste  against  strangers  as 
well  as  against  the  tenant  of  the  particular  estate,  and  has  a 
right  to  receive  rents  accruing  from  such  tenant ;  and  so  will 
his  assignee,  if  the  rent  is  not  reserved  or  granted  away  to 
another."  The  same  doctrine  of  merger  applies,  if  the  par- 
ticular estate  and  the  reversion  become  united  in  the  same  per- 
son. And  if  the  tenant  of  the  particular  estate  is  disseised,  it 
will  have  no  more  effect  upon  the  reversion  than  it  would 
have  upon  a  remainder.  For  any  further  explanation  of  the 
rights  and  powers  of  reversioners,  reference  may  be  had  to  the 
chapter  on  Remainders.  The  subject  is  there  presented  in  de- 
tail as  to  remainder-men,  and  as  the  rights  and  powers  of  re- 
mainder-men and  reversioners  are  identical,  it  requires  but 
one  statement  of  them.^^ 

in  favor  of  a  grantee  of  tlio  husband,  under  a  deed  to  his  estate,  until 
the  death  of  the  husband  and  the  consequent  end  of  his  estate  by 
curtesy.  Wilson  v.  Frost,  186  Mo.  311,  85  S.  W.  Rep.  375.  See,  also, 
Dickinson  V.  Bank,  111  111.  App.  183;  Ousler  v.  Robinson  (Ark.  1904), 
80  S.  W.  Rep.  227.  In  Illinois,  dower  will  not  attach  to  a  remainder, 
unless  the  particular  estate  terminates  during  coverture.  Kirkpatrick 
V.  Kirkpatrick,  197  111.  144,  64  N.  E.  Rep.  267.  A  vested  fee-simple 
estate  in  remainder  is  such  "  property  belonging  to  the  wife,"  as 
to  give  her  husband,  on  her  death  without  issue,  a  life  estate,  as  ten- 
ant by  curtesy,  under  the  Maryland  statute.  Snyder  v.  Jones,  99  Md. 
693,  59  Atl.  Rep.  118. 

"Co.  Lit.  143  a;  2  Washburn  on  Real  Prop.  742-744 ;  Jesser  v.  Gif- 
ford,  4  Burr.  2141;  Simpson  V.  Bowden,  33  Me.  549;  Livingston  v. 
Haywood,  1 1  Johns.  429 ;  Burden  V.  Thayer,  3  Mete.  76 ;  Wood  v.  Griffin, 
46  N.  H.  239;  Ripka  V.  Sergeant,  7  Watts  &  S.  9.  See  ante,  Sees.  137, 
148,  149. 

IS  See  post,  chap.  XIII.  Apart  from  the  diflference  in  the  manner, 
in  which  the  remainder  and  the  reversion ,  are  created,  Mr.  Williams 
says:  "A  remainder  chiefly  differs  from  a  reversion  in  this, —  that 
between  the  owner  of  the  particular  estate  and  the  owner  of  the  re- 
mainder (called  the  remainder-man)  no  tenure  exists.  They  both  de- 
rive their  estates  from  the  same  source,  the  grant  of  the  owner  in  fee 
simple;  and  one  of  them  has  no  more  right  to  be  lord  than  the  other." 
436 


CH.    Xn.]  REVERSION.  §  295 

Williams  on  Real  Prop.  250.  Until  actual  entry  for  breach  of  a 
condition,  the  grantee  of  an  estate  upon  condition  holds  the  legal  title 
as  against  the  reversioner.  Little  Falls  Water  Power  Co.  v.  Mahan,  69 
Minn.  253,  72  N.  W.  Rep.  69;  Donnelly  v.  Eastes,  94  Wis.  390,  69  N. 
W.  Rep.  157.  The  remedy  for  the  enforcement  of  the  grantor's  right, 
to  recover  possession,  on  breach  of  a  condition  subsequent,  in  a  deed, 
is  at  law  and  not  in  equity,  Mourat  v.  Seattle  and  C.  R.  Co.,  16 
Wash.  84,  47  Pac.  Rep.  233.  A  reversioner,  entitled  to  re-enter  on 
breach  of  a  condition  subsequent,  cannot  re-enter  after  a  conveyance 
of  his  interest.  Lewis  v.  Lewis,  76  Conn.  586,  57  Atl.  Rep.  735.  The 
owner  of  the  reversion  is  entitled  to  rents  only  from  the  death  of  the 
life  tenant  and  the  burden  is  on  him  to  show  the  termination  of  the 
life  estate,  in  a  suit  for  rents  due  him.  McKee  i".  Dail  (Tenn.),  1 
Tenn.  Ch.  689.  For  cause  of  action  for  damages  for  injury  to  the 
reversion,  from  acts  amounting  to  waste,  see  Palmer  v.  Young,  108 
111.  App.  252;  Champ  Spring  Co.  v.  Roth  Tool  Co.  (Mo.  1903),  77 
S.  W,  Rep.  344.  Injury  must  be  to  inheritance  to  give  reversioner 
right  to  sue.    Watson  v.  Harrigan,  112  Wis.  278,  87  N.  W.  Rep.  1079. 

437 


CHAPTER  XIII. 

REMAINDERS. 

Section      I.  Of  remainders  in  general  and  herein  of  vested 
remainders. 
II.  Contingent  remainders. 
III.  Estates  within  the  rule  in  Shelley's  Case, 

SECTION  I. 

OP  REMAINDERS  IN  GENERAL  AND  HEREIN  OF  VESTED  REMAINDERS. 

Section  296.  Nature  and  definition  of  remainders. 

297.  Kinds  of  remainders. 

298.  Successive  remainders. 

299.  Disposition  of  a  vested  remainder. 

300.  Relation  of  tenant  and  remainder-man. 

301.  Vested   and   contingent   remainders   further   distinguished 

—  Uncertainty   of   enjoyment. 

302.  Same  —  Remainder  to  a  class. 

303.  Same  —  After  the  happening  of  the  contingency. 

304.  Cross  remainders. 

§  296.  Nature  and  definition  of  remainders. —  It  will  have 
been  already  observed  from  the  preceding  pages,  that  at 
common  law  the  only  mode  of  transferring  freehold  estates  in 
possession  was  by  a  ceremony  known  as  livery  of  seisin,  and 
that  there  could  be  but  one  actual  seisin,  which  always  ac- 
companied the  freehold  estate  in  possession.^  The  livery  of 
seisin  being  a  manual  delivery  of  possession,  and  the  title 
passing  in  prcesenti  by  virtue  of  such  delivery,  it  is  but  a  nat- 
ural consequence  that,  according  to  the  common  law,  no  free- 
hold estate  can  be  created  to  commence  in  futuro,  conveying 

iSee  ante,  Sec.  24. 
438 


CH.    XIII.]  REMAINDERS.  §  296 

a  present  title  to  the  same.  We  have  seen,  though,  in  the  pre- 
ceding chapter  on  Reversions,  that  an  estate  in  possession  less 
than  a  fee  may  be  granted,  leaving  a  reversion  in  the  grantor, 
which  he  could  subsequently  assign  by  deed  of  grant.^  The 
difficulty  experienced  at  common  law  in  creating  future  es- 
tates lay  in  the  fact,  that  they  had  no  mode  of  conveyance 
which  did  not  operate  by  transmutation  of  possession.  It  was 
necessary  that  immediate  possession  should  accompany  the 
creation  or  transfer  of  the  title.'  In  fact,  livery  of  seisin 
was  nothing  more  than  the  delivery  of  the  possession  of  a  free- 
hold. If,  therefore,  a  particular  estate  in  possession  had  al- 
ready been  granted,  or  was  conveyed  at  the  same  time  with 
the  future  estate,  the  obstacle  in  the  way  of  creating  the  lat- 
ter was  removed.  If  the  particular  estate  was  granted  by  a 
prior  deed,  the  future  estate  was  a  reversion  in  the  grantor 
which  could  afterward  be  conve,yed  by  grant.  But  if  it  was 
granted  at  the  same  time  as  the  future  estate,  and  by  the  same 
deed,  the  future  estate  was  called  a  remainder.  A  remainder 
is,  therefore,  a  future  estate  in  lands,  which  is  preceded  and 
supported  by  a  particular  estate  in  possession,  which  takes  ef- 
fect in  possession  immediately  upon  the  determination  of  the 
prior  estate,  and  which  is  created  at  the  same  time  and  by  the 
same  conveyance.*  It  follows,  therefore,  from  this  definition, 
that  a  remainder  can  only  be  acquired  by  purchase ;  it  never 
vests  by  descent.'^     Nor  can  a  remainder  be  supported  by  an 

2  See  ante,  Sec.  292. 

3  See  post.  Sees.  535,  536,  357 ;  2  Washburn  on  Real  Prop.  536,  538, 
539;  Co.  Lit.  217  a. 

*  2  >Vashburn  on  Real  Prop.  539 ;  2  Bla.  Com.  163 ;  Co.  Lit.  143.  See 
also  Doe  V.  Considine,  6  Wall.  474;  Brown  v.  Lawrence,  3  Cush.  390; 
Booth  V.  Terrell,  16  Ga.  20. 

6  Dennett  v.  Dennett,  40  N.  H.  504 ;  see  Langdon  v.  Strong,  2  Vt. 
254.  In  the  same  manner,  there  must  be  a  conveyance  of  the  prior 
particular  estate.  A  man  cannot  grant  a  remainder,  reserving  to  him- 
self a  prior  estate  for  life.  The  grant,  if  it  took  effect  at  all,  would 
create  in  the  grantee  a  springing  use  and  not  a  remainder.  Bisscll  V. 
Grant,  35  Conn.  297.  See  also  post,  Chap,  on  Springing  Uses,  Chapter 
XIV. 

439 


§  296  REMAINDERS.  [PART   II. 

estate  which  is  created  by  operation  of  law.  The  future  es- 
tate, which  vests  in  the  heirs  upon  the  determination  of  the 
widow's  dower,  or  the  husband's  curtesy,  is  not  a  technical 
remainder,  but  a  reversion."  If  the  future  estate  does  not 
take  effect  in  possession  immediately  upon  the  expiration  of 
the  prior  or  partieulai*  estate  (the  prior  estate  is  called 
particular,  derived  from  the  latin  particula,  part  or  parcel), 
it  is  not  a  remainder,  and  if  it  cannot  take  effect  as  an  as- 
signed reversion,  a  future  use  or  an  executory  devise — which 
will  be  explained  hereafter  ^ — it  will  be  void,  and  the  con- 
veyance will  fail.*  But  the  refusal  of  a  devisee  to  accept  a 
particular  estate  will  not  defeat  that  devise  of  the  remainder- 
man. The  remainder-man  would  in  such  a  case  take  from  the 
death  of  the  testator,  the  devise  of  the  particular  estate  being 
treated  as  having  lapsed.  Nor  will  the  disaffirmance  by  an 
infant  tenant  for  life  have  any  effect  upon  the  validity  of  the 
remainder.  But  if  the  particular  estate  is  void,  through  some 
quality  annexed  to  the  estate  in  its  inception  as,  by  entry  of 
the  grantor  for  condition  broken,  the  remainder  will  also  fail, 
if  it  cannot  then  take  effect  in  possession.® 

0  Greer  V.  Hamblin,  1  Me.  54 ;  Cook  V.  Hammond,  4  Mason  485, 
Reynolds  v.  Reynolds,  5  Paige,  1G7;  Safford  f.  Safford,  7  Paige  Ch. 
259;  Robinson  v.  Miller,  2  B.  Mon.  288;  Elwood  v.  Klock,  13  Barb.  50; 
Hitchens  f.  Hitchens,  2  Vern.  405;  1  Cruise  Dig.  164;  4  Kent's  Com. 
65,  Co.  Lit,  31a.     See  ante,  Sec.  291. 

f  See  post,  Sees,  on  Contingent,  Springing  and  Shifting  Uses  in 
Chapter  XIV. 

8  2  Washburn  on  Real  Prop.  540;  1  Brest.  Est.  217;  Williams  on  Real 
Prop.  249-251;  Wilkes  v.  Lion,  2  Cow.  333.  A  remainder  cannot 
exist  without  a  particular  estate  to  support  it  and  if  the  particular 
estate  expires  before  the  remainderman  is  qualified  to  take  possession, 
the  remainder  expires  with  it.  Accordingly,  a  remainder  limited  to 
the  grandchildren  of  testator  or  their  issue,  with  a  cross  remainder 
to  testator's  son  and  his  issue,  is  defeated  by  the  death  of  all  the  re- 
maindermen and  their  issue,  prior  to  the  determination  of  the  par- 
ticular estate,  and  it  is  held,  in  Iowa,  that  the  title  to  the  land  would 
revert  to  the  heirs  of  the  testator.  Archer  V.  Jacobs,  125  Iowa  467, 
101  N.  W.  Rep.  195. 

»  2  Washburn  on  Real  Prop.  555 ;  Co.  Lit.  298  a ;  Thompson  v.  Leach. 

440 


CH.    Xra.]  REMAINDERS.  §  297 

§  297.  Kinds  of  remainders. —  Remainders  are  divided  into 
two  classes,  vested  and  contingent.  A  vested  remainder  is  a 
present  vested  right  to  the  future  enjoyment  of  the  land.  In 
a  vested  remainder  only  the  possession  is  postponed.  It  is, 
therefore,  a  vested  and  executory  estate."  A  contingent  re- 
mainder is  one  in  which  both  the  title  and  the  possession  are 
postponed.  The  vesting  of  the  title  depends  upon  the  hap- 
pening of  an  uncertain  event  which  may  not  happen  at  all,  or 
at  a  time  subsequent  to  the  determination  of  the  particular 
estate.  The  possession  depends  upon  the  vesting  of  the  title, 
and  as  the  estate  must  take  effect  in  possession  immediately 
upon  the  expiration  of  the  particular  estate,  it  will  fail  if  the 
contingency   does   not    occur   before   that   event.^^    And   at 

2  Salk.  576;  Prescott  V.  Prescott,  7  Mete.  141;  Macknet  v.  Macknet,  24 
N.  J.  Eq.  277;  Lawrence  V.  Hebbard,  2  Bradf.  250;  Goodall  V.  Mc- 
Lean, 2  Bradf.  ,306;  Yeaton  V.  Roberts,  28  N.  H.  459;  Augustus  V. 
Seabolt,  3  Mete.  161;  Archer  v.  Jacobs,  125  Iowa  467,  101  N.  W.  Rep. 
195.  But  the  statement  in  the  text,  that  the  entry  of  the  grantor,  for 
the  breach  of  a  condition  annexed  to  the  particular  estate,  would  de- 
feat the  remainder,  applies  only  to  common-law  remainders.  A  limi- 
tation to  take  effect  upon  the  breach  of  a  condition  may  be  valid  as  an 
executory  devise  or  as  a  shifting  use.  See  ante,  Sec.  211,  and  post. 
Sees.  313,  391,  392. 

loCroxall  v.  Sherard,  5  Wall.  288;  Doe  v.  Considine,  6  Wall.  474; 
Brown  r.  Lawrence,  3  Cush.  390;  Blanchard  V.  Blanchard,  1  Allen  227; 
Hill  r.  Baton,  106  Mass.  578;  Leslie  v.  Marshall,  31  Barb.  564;  Moore  W. 
Lyons,  25  Wend.  119;  Gourley  V.  Woodbury,  42  Vt.  395.  Mr.  Preston's 
definition  is :  "  It  is  the  present  capacity  of  taking  eflFect  in  possession, 
if  the  possession  were  fallen."    1  Prest.  Est.  70. 

11  2  Washburn  on  Real  Prop.  542 ;  Doe  V.  Morgan,  3  T.  R.  764 ;  Pure- 
foy  V.  Rogers,  2  Lev.  39;  Hawley  v.  James,  5  Paige  Ch.  466;  Moore  v. 
Lyons,  25  Wend.  144;  Williamson  t".  Field,  2  Sandf.  Ch.  553;  Price  v. 
Sisson,  13  N.  J.  L.  176;  Archer  v.  Jacobs,  125  Iowa  467,  101  N.  W.  Rep. 
195.  There  have  been  various  tests  suggested  for  determining,  whether 
in  a  given  case  a  future  estate  is  a  vested  or  contingent  remainder,  and 
the  more  common  one  is  that  given  by  Mr.  Fearne,  viz. :  "  The  present  ca- 
pacity of  taking  effect  in  possession,  if  the  possession  were  to  become 
vacant,  .  .  .  distinguishes  a  vested  remainder  from  one  that  is  con- 
tingent." Feame  Cont.  Rem.  216;  2  Cruise  Dig.  200.  This  was  a  relia- 
ble test,  if  it  was  understood  that  it  mattered  not  in  what  way  or  by 
what  means  the  prior  particular  estate  is  determined,  whether  by  for- 

441 


§  297  REMAINDERS.  [PART  H. 

common  law  a  remainder  to  a  child  en  ventre  sa  mere  would 
be  defeated  if  it  was  not  born  before  the  termination  of  the 
particular  estate.  This  rule,  however,  has  now  in  most  of  the 
States  been  changed  by  statute,  and  an  unborn  child  after 
conception  is  considered  as  sufficiently  a  living  being,  in  order 
to  take  an  estate.^^  A  contingent  remainder  is  both  contin- 
gent and  executory.  As  long  as  there  is  some  one  in  being 
who  can  'take  and  hold  the  actual  seisin,  no  violation  of  the 
common-law  rule,  which  requires  an  ascertained  tenant  of  the 
prcecipe,  will  be  committed,  whether  the  title  to  the  remainder 
vests  immediately  or  whether  its  vesting  is  postponed  to  some 
future  time.^'     In  this  way  is  the  validity  of  a  contingent 

feiture,  merger,  or  disseisin,  or  by  the  natural  termination  of  the  estate. 
But  since  at  the  present  day,  in  most  of  the  States,  the  defeat  of  the 
prior  estate  in  any  other  way,  except  by  this  natural  termination,  will 
not  avoid  the  contino;ent  remainder  depending  upon  it,  this  test  is  no 
longer  reliable  and  another  must  be  found.  The  following  is  suggested 
as  a  reliable  test,  viz..  the  present  capacity  to  convey  an  absolute  title 
to  the  remainder.  This  test  would,  however,  give  rise  to  a  qualification, 
where  the  remainder  is  to  a  class,  and  some  of  the  class  are  not  yet 
in  esse.  The  remainder,  so  far  as  those  in  esse  are  concerned,  is  held 
to  be  vested  (see  post.  Sec.  302),  while  such  remaindermen  could  not 
convey  an  absolute  title,  thus  excluding  the  after-born  members  of  the 
class  from  their  right  in  the  remainder,  although  they  can  convey  an 
absolute  title  to  their  oicn  interest  in  it.  In  New  York,  Michigan,  Wis- 
consin, Minnesota,  California,  Dakota,  it  is  provided  by  statute  that  no 
contingent  remainder  shall  fail  if  the  contingency  does  not  occur  before 
the  termination  of  the  particular  estate,  and  that  such  remainder  shall 
take  effect  in  possession  after  the  termination  of  the  prior  estate,  when- 
ever the  contingency  happens.  This  practically  abolishes  the  distinction* 
between  contingent  remainders  and  executory  devises. 

12  Reeve  v.  Long,  1  Salk.  227 ;  4  Kent's  Com.  249.  Statutes,  changing 
the  common  law  in  this  respect,  are  to  be  found  in  Arkansas,  California, 
Georgia,  Maryland,  Massachusetts,  Missouri,  New  York,  Ohio,  Virginia 
and  Wisconsin.  2  Washburn  on  Real  Prop,  595;  Crissfield  v.  Storr,  36 
Md.  129,  11  Am.  Rep.  480;  Cowles  V.  Cowles   (Conn.),  13  Atl.  Rep.  414. 

18  If  the  estate,  limited  by  way  of  a  remainder,  is  an  equitable  estate, 
instead  of  a  legal  estate,  no  failure  of  the  remainder  would  result  from 
a  termination  of  the  particular  estate,  before  the  happening  of  the  con- 
tingency, for  the  seisin  would,  in  contemplation  of  law,  be  in  the  trustee 
and  would  not  be  effected  by  the  particular  estate.  Feame  Con.  Rem. 
303;  1  Tiffany,  Real  Prop.,  Sec.  123,  p.  293. 
442 


CH.    XIU.]  REMAINDERS.  §  297 

remainder  explained.  The  contingency  may  be  the  birth  of 
the  person  who  is  to  talce,  as  well  as  any  other  uncertainty. 
But  for  the  support  of  a  contingent  remainder  the  particular 
estate  must  be  a  freehold;  while  in  the  case  of  a  vested  re- 
mainder the  particular  estate  may  be  only  a  term  of  years. 
The  reason  for  this  difference  lies  in  the  fact  that  the  tenant 
for  years  has  only  a  chattel  interest,  the  possession  of  which 
he  acquires  as  a  quasi-bailee  of  the  tenant  in  reversion.  He 
does  not  take,  and  cannot  hold,  the  actual  seisin  in  his  own 
right.  If  the  remainder  is  contingent  there  is  no  definitely 
ascertained  person  who  can  take  the  legal  seisin,  which,  to- 
gether with  the  actual  possession  of  the  tenant  for  years,  as 
his  bailee,  will  constitute  the  complete  and  lawful  seisin  to  the 
land.^*  An  apparent  exception  to  this  rule  requiring  the 
particular  estate  to  be  a  freehold,  is  met  with  in  limitations 
like  the  following :  An  estate  is  given  to  A.  for  eighty  years, 
if  he  shall  so  long  live,  with  a  contingent  remainder  at  his 
death.  This  has  been  held  to  be  a  good  contingent  re- 
mainder, since  it  is  so  extremely  unlikely  that  A.  will  live 
out  the  term  that  it  may  be  considered  as  practically  an  estate 
for  life.  No  particular  n;miber  of  years  is  required  to  sup- 
port this  kind  of  limitation,  and  it  is  apprehended  that  the 
required  number  would  vary  in  each  case  according  to  the 
chances  of  life  of  the  tenant  of  the  particular  estate,  a  greater 
number  being  required  if  the  tenant  of  the  particular  estate 
is  a  young  person  than  if  he  is  old.^'    Any  particular  estate 

i*Co.  Lit.  143  a;  Fearne  Cont.  Rem.  285;  2  Washburn  on  Real  Prop. 
538,  543;  Williams  on  Real  Prop.  252;  Doe  v.  Considine,  6  Wall.  474; 
Brodie  v.  Stephens,  2  Johns.  289;  Corbet  v.  Stone,  T.  Raym.  151;  2  Bla. 
Com.  171.  In  New  York,  Michigan,  Wisconsin,  and  Minnesota,  it  is  pro- 
vided by  statute  that  a  contingent  remainder  may  be  limited  to  take 
eflFect  at  the  termination  of  an  estate  for  years.  2  Washburn  on  Real 
Prop.  594,  595.  And  in  very  many  of  the  States  terms  for  years  of  long 
duration  are  now  declared  by  statute  to  have  all  the  properties  of  a 
freehold  estate.  1  Washburn  on  Real  Prop.  463.  And  see,  as  to  remain- 
ders in  equitable  estates,  where  the  seisin  is  in  a  trustee,  supra. 

18  2  Cruise  Dig.  243 ;  2  Washburn  on  Real  Prop.  585 ;  Napper  v.  Sand- 
ers, Hutt.  118;  LethieuUier  f.  Tracy,  Amb.  204;  ».  o.  3  Atk.  774;  Doe 

443 


§  298  REMAINDERS.  [pART  U. 

for  years  is  sufficient  if  the  contingent  remainder  is  not  a 
freehold.  In  that  case  the  seisin  is  still  in  the  grantor.^®  But 
the  particular  estate  must  in  no  case  be  less  than  an  estate  for 
years.  A  tenancy  at  will,  at  sufferance,  or  from  year  to  year, 
will  not  support  a  remainder ;  such  estates  are  too  uncertain  as 
to  their  duration. 

§  298.  Successive  remainders. —  As  long  as  the  entire  fee  is 
not  granted  away,  there  may  be  an}'  number  of  estates  limited 
in  remainder,  following  one  after  another,  provided  they  are 
so  granted  that  one  will  vest  in  possession  immediately  upon 
the  termination  of  the  preceding  remainder.  If  any  time  be 
allowed  to  elapse  between  their  vesting  in  possession,  the  es- 
tates cannot  take  effect  as  remainders.  Thus  the  conveyance 
may  be  to  A.  for  life  or  for  years,  to  B.  for  life  or  years,  to  C, 
and  so  on  indefinitely,  provided  no  one  is  given  the  fee  in  re* 
mainder.^''  As  soon,  however,  as  the  fee  is  assigned — there 
being  nothing  in  the  nature  of  an  estate  left  in  the  grantor — 
he  can  create  no  more  remainders.  It  is,  therefore,  a  cardinal 
rule  that  no  remainder  can  be  limited  after  a  fee ;  or,  in  other 
words,  where  there  is  no  reversion  there  can  be  no  remainder.^* 
Such  a  limitation  could,  however,  take  effect  as  an  executory 
devise,  if  it  appeared  in  a  will.^"  But  if  the  first  devisee  has 
an  absolute  power  of  disposal,  and  the  limitation  over  is  to 
operate  only  upon  what  is  left  at  his  death,  the  limitation 
cannot  take  effect  either  as  a  contingent  remainder  or  as  an 

V.  Ford,  2  E.  &  B.  970 ;  Weale  v.  Lower,  Pollexf.  67 ;  Fearne  Cont.  Rem. 
20-22;    1  Prest.  Est.  81. 

16  2  Cruise  Dig.  244;  Fearne  Cont.  Rem.  285;  Corbet  v.  Stone,  T. 
Rayin.  151;  2  Washburn  on  Real  Prop.  585,  586. 

17  2  Washburn  on  Real  Prop.  555. 

18  1  Eq.  Cas.  Abr.  185;  2  Cruise  Dig.  203;  Atty.-Gen.  v.  Hall,  Fitzg. 
314;  McLean  v.  McDonald,  2  Barb.  534;  Jackson  v.  Delancy,  13  Johns. 
657;  Bowman  v.  Lobe,  14  Rich.  Eq.  271. 

19 Doe  V.  Glover,  1  C.  B.  448;  Nitingale  r.  Burrell,  15  Pick.  104,  111; 
Andrews  v.  Roye,  12  Rich.  544;  Marks  r.  Marks,  10  Mod.  423;  Purefoy 
V.  Rogers,  2  Wms.  Saund.  388a,  note;  Hatfield  r.  Sueden,  42  Barb.  65 j 
8.  c.  54  N.  Y.  285;  Brightman  v.  Brightman,  100  Mass.  238. 
444 


CH.    Xin.]  REMAINDERS.  §  298 

executory  devise.-*  A  careful  analysis  of  these  cases  will, 
however,  reveal  the  fact  that  in  most  of  them  the  first  limi- 
tation has  been  enlarged  into  a  fee,  under  the  operation  of  the 
rule  in  the  law  of  powers  (see  post,  chapter  XVI,  on  Powers), 
that  an  unlimited  power  of  disposal  annexed  to  a  devise  gen- 
eral of  the  estate  without  words  of  limitation,  will  enlarge 
the  estate  devised  into  a  fee,  or  an  estate  in  fee  is  expressly 
given,  and  in  either  case  the  limitation  over  is  precatory  in- 
stead of  being  mandatory,  AVhere  the  prior  limitation  is  ex- 
pressly for  life,  or  the  limitation  over  is  explicit  and  manda- 
tory, not  in  the  nature  of  a  request,  that  the  devisee  in 
prcesenti  shall  leave  what  he  has  not  disposed  of  to  the  per- 
sons, it  will  not  only  be  a  good  limitation  over,  but,  if  the 
prior  limitation  is  an  estate  for  life  or  any  other  estate  less 
than  a  fee,  it  will  be  a  vested  remainder.  ^^     There  must  be  a 

20  Ide  V.  Ide,  5  Mass.  500 ;  Ramsdell  v.  Ramsdell,  21  Me.  288 ;  Jones 
V.  Bacon,  68  Me.  34,  28  Am.  Rep.  1;  Smith  V.  Bell,  6  Pet.  68;  Sears 
V.  Russell,  8  Gray  100;  Burbank  v.  Whitney,  24  Pick.  146;  Hale  V. 
Marsh,  100  Mass.  468;  Jackson  f.  Bull,  10  Johns.  19;  Jackson  V.  Robins, 
15  Johns.  169;  s.  c.  16  Johns.  568;  McKenzie's  Appeal,  41  Conn.  607, 
19  Am.  Rep.  525 ;  Newland  V.  Newland,  1  Jones  L.  463 ;  McRee's  Admrs. 
V.  Means,  34  Ala,  349;  Doe  v.  Stevenson,  1  C.  B.  448;  Bourn  V.  Gibbs, 
1  Russ,  &  M,  615;  Rona  r.  Meier,  47  Iowa  607,  29  Am.  Rep.  493;  Out- 
land  V.  Bowen  (Ind.),  17  N.  E.  Rep.  281;  Giles  v.  Auslow,  128  111.  187; 
O'Boyle  v.  Thomas,  116  Ind.  243;  McClellan  v.  Larcher,  45  N.  J.  Eq.  17; 
Griswold  v.  Warner,  51  Hun  12;  Leggett  V.  Firth,  53  Hun  152;  Roden- 
fels  V.  Schumann,  45  N.  J.  Eq.  383.  The  statement  in  the  text  was  fol- 
lowed by  the  Supreme  Court  of  Missouri,  in  an  able  opinion  by  Ch,  Jus, 
Gantt,  after  a  review  of  the  leading  cases  cited  above,  in  Cornwall  v. 
Wulflr,  148  Mo.  559,  et  mb.  See  also,  4  Kent's  Com,  (12  ed,)  270; 
Brown  v.  Rogers,  125  Mo.  398;  Van  Home  v.  Campbell,  100  N.  Y.  287; 
Foster  V.  Smith,  156  Mass.  379;  Fisher  v.  Wister,  154  Pa.  St.  65; 
Wolfer  V.  Humner,  144  111.  554;  Howard  v.  Canersi,  109  U.  S.  725;  2 
Redfield  Wills  278.  But  see,  for  critcism  of  Cornwall  v.  WulflF,  supra, 
in  separate  opinion  of  Marshall,  J,,  Walton  v.  Drumtra,  152  Mo,  489. 

21  Gibbins  v.  Shepard,  125  Mass.  541 ;  Burleigh  v.  Clough,  52  N,  H. 
267,  13  Am,  Rep,  23;  Mandlebaum  V.  McDonnell,  29  Mich.  78,  18  Am. 
Rep.  61;  Joslin  f.  Rhoades,  150  Mass.  301;  Mitchell  v.  Knapp,  54  Hun 
500;  Peckham  v.  Lego,  57  Conn.  553;  Von  Axte  v.  Fisher,  117  N.  Y.  401; 
Wells  V.  Leeley,  47  Hun  109;  Stevens  V.  Fowler   (N,  J,),  19  Atl,  Rep. 

445 


§  298  REMAINDERS.  [PART   II. 

power  to  dispose  in  any  ease,  in  order  that  the  estate  of  tenant 
for  life  may  be  enlarged  into  a  fee.  The  tenant  cannot  claim 
a  fee,  because  the  will  provides  that  "all  of  the  estate  re- 
maining" at  her  death,  shall  go  to  her  children.  The  tenant 
nevertheless  takes  only  a  life  estate.--  The  remainder  has 
under  such  circumstances  been  held  to  be  contingent.^^  In 
many  of  the  States  a  remainder  can  now  be  limited  to  take 
effect  after  a  fee  or  in  abridgment  of  the  preceding  estate. 
It  is  also  true,  that  no  remainder  can  be  limited  after  a  fee, 
even  though  the  fee  be  base  or  qualified,  as  in  the  case  of  a 
fee  upon  condition.  There  is  left  in  the  grantor  after  such  an 
estate  only  a  possibility  of  reverter,  which  cannot  be  assigned, 
either  as  a  reversion  or  as  a  remainder.-*  But  if  the  prece- 
dent estate  is  an  estate  upon  limitation  terminating  upon  the 
happening  of  a  contingency,  which  must  happen,  the  grantor 
is  held  to  have  a  reversion,  and  not  a  mere  possibility,  and 
hence  a  remainder  can  be  limited  to  take  effect  after  such  an 
estate.-^  And  so,  also,  where  a  remainder  is  given  to  trustees 
and  their  heirs,  since  the  duration  of  the  trustee's  estate  is 
always  limited  by  the  requirements  and  necessities  of  the 
trust,  if  the  performance  of  the   trust  does  not  require  a 

777;  Park's  Admr.  v.  Am.  Home  Missionary  Soc.  (Vt.),  20  Atl.  Rep. 
107;  Crozier  v.  Bray,  120  N.  Y.  3G6;  Miller's  Admr.  v.  Potterfield 
(Va.),  11  S.  E.  Rep.  486;  Pritcharo  v.  Walker,  22  111.  App.  286;  s.  c. 
121  111.  221;  Sanborn,  62  N.  H.  631;  Lewis  v.  Pitman  (Mo.),  14  S.  W. 
Rep.  52;  Glover  v.  Reid  (Mich.),  45  N.  W.  Rep.  91;  Jenkins  V.  Comp- 
ton  (Ind.>,  23  N.  E.  Rep.  1091;  Cashman's  Estate,  28  111.  App.  346; 
Kibler  v.  Huver,  10  N.  Y.  S.  375;  Hood  v.  Haden,  82  Va.  588;  Mumo 
V.  Collins,  95  Mo.  33;  Thomas  V.  Wolford,  49  Hun  145;  Walker  v. 
Pitchard,  121  111.  221;  Harbison  v.  James,  90  Mo.  411;  Spencer  v.  Strait, 
38  Hun  228. 

22Cresap  v.  Cresap,  34  W.  Va.  310;  Stone  V.  Littlefield  (Mass.),  24 
X.  E.  Rep.  592.  See  Walton  v.  Drumtra,  152  ]Mo.  504,  and  dissenting 
opinion  of  Marshall,  J.,  in  Cornwall  v.  Wulff,  148  Mo.  559. 

23  Simpson  v.  French,  6  Dem.  Sm,    (N.  Y.)    108. 

-•*  2  Washburn  on  Real  Prop.  540,  541;  Doe  v.  Selby,  2  B.  &  C.  930; 
Willion  V.  Burkley,  Plowd.  235;  Seymour's  Case,  10  Rep.  97;  Wimple  V. 
Fonda,  2  Johns.  288;    Buist  r.  Dawes,  4  Strobh.  Eq.   37. 

25  Com.  V.  Hackett,  102  Pa.  St.  505.     See  ante,  Sec.  291. 
446 


CH.    Xin.]  REMAINDERS,  §  299 

fee,  and  the  estate  is  therefore  determinable,  a  remainder  may 
be  limited  to  take  effect  after  the  determination  of  the  trust- 
estate.  This  constitutes  an  exception  to  the  general  rule,  and 
is  only  applicable  to  remainders  in  trust.-®  Estates  are  some- 
times created  to  take  effect  after,  or  in  derogation  of  the  pre- 
ceding estate  in  fee,  but  they  are  not  common  law  remainders. 
At  common  law  such  estates  are  impossible;  they  are  called 
conditional  limitations,  and  operate  under  the  Statute  of  Uses 
as  a  shifting  use,  or  under  the  Statute  of  Wills  as  an  execu- 
tory devise.^^  So  also  was  it  impossible  to  create  a  remainder 
after  a  fee  conditional  at  common  law.  But  wherever  that  es- 
tate has  been  converted  into  a  fee  tail,  a  remainder  is  possible, 
as  has  been  explained  in  the  chapter  on  Reversions.-* 

§  299.  Disposition  of  a  vested  remainder. —  A  vested  re- 
mainder is  capable  of  alienation  by  any  mode  of  conveyance 
which  does  not  require  livery  of  seisin,  and  even  with  livery, 
where  the  particular  estate  is  not  a  freehold,  and  the  consent 
of  the  tenant  to  entry  upon  the  land  for  that  purpose  is  ob- 
tained. It  may  be  devised,  or  assigned  in  whole  or  carved  up 
into  a  number  of  smaller  estates,  and  may  be  conveyed  upon 

2«  Lethieullier  r.  Tracy,  3  Atk.  774.  A  vested  remainder  which  is  to 
take  effect  on  the  termination  of  a  trust  estate,  under  the  Connecticut 
statute  passes  to  a  trustee  in  bankruptcy,  under  Bank  Law,  July,  1898. 
Loomer  v.  Loomer,  76  Conn.  522,  57  Atl.  Rep.  167.  See  post,  Sec.  IV, 
Chapter  XIV. 

^7  2  Washburn  on  Real  Prop.  544,  545;  1  Prest.  Est.  91;  Cogan  V. 
Cogan,  Cro.  Eliz.  360;  Proprietors  Brattle  Sq.  Church  v.  Grant,  3  Gray 
149;  Horton  V.  Sledge,  29  Ala.  495.  See  post,  Chapter  XIV,  Sec.  Ill, 
and  Chapter  XV. 

28  2  Washburn  on  Real  Prop.  546 ;  Wilkes  v.  Lion,  2  Cow.  393 ;  Hall  v. 
Priest,  6  Gray  18.  The  remainder  after  an  estate  tail  was  liable  to  be 
defeated  by  the  common  recovery,  instituted  by  the  tenant  in  tail  for 
the  purpose  of  cutting  off  the  entail.  Williams  on  Real  Prop.  253;  1 
Spence  Eq.  Jur.  144;  2  Prest.  Est.  460;  Page  V.  Hayward,  2  Salk.  570. 
The  remainder  after  an  estate  tail  has  this  further  peculiarity,  that  the 
estate  tail  will  not  merge  in  it  if  the  two  should  come  together  in  the 
tenant  in  tail.  Wiscot's  Case,  2  Rep.  61;  Roe  v.  Baldwere,  5  T.  R.  110; 
Poole  V.  Morris,  29  Ga.  374. 

447 


§  300  REMAINDERS.  [PART   II. 

trusts,  or  made  to  vest  upon  some  future  contingency,  pro- 
vided no  estate  is  thereby  made  to  commence  in  future,  with- 
out a  preceding  estate  to  support  it.-"  If  the  remainder-man 
dies  without  having  disposed  of  his  estate,  the  remainder  will 
descend  to  his  heirs,  in  the  same  manner  as  an  estate  in  pos- 
session.^"* 

§  300.  Relation  of  tenant  and  remainder-man. —  It  is  said 
that  there  is  no  tenure  existing  between  the  remainder-man 
and  the  tenant  of  the  particular  estate.  But  while  that  may- 
be true  as  a  general  rule,  a  life  tenant  cannot  set  up  against 
the  remainder-man  any  superior  title  which  he  may  have  ac- 
quired by  purchase.     A  release  to  the  life  tenant  enures  to  the 

29  2  Washburn  on  Real  Prop.  553 ;  1  Prest.  Est.  75 ;  Pearce  v.  Savage, 
45  Me.  101;  Blanchard  v.  Brooks,  12  Pick.  47;  Fearne  Cent.  Rem.  216; 
Williams  on  Real  Prop.  252;  Bunting  v.  Speek,  41  Kan.  424;  Swett  v. 
Thompson,  149  Mass.  302;  Loreng  v.  Games,  148  Mass.  223.  In  Ala- 
bama, New  York,  Michigan,  Wisconsin,  Minnesota,  Indiana,  Iowa,  Miss- 
issippi, Missouri,  Texas,  Virginia,  Kentucky,  Illinois,  a  legal  estate  may 
be  created  by  deed  to  commence  in  the  future,  without  a  preceding  estate 
to  support  it.  2  Washburn  on  Real  Prop.  502,  593.  In  those  States, 
therefore,  a  future  estate  may  be  disposed  of  in  such  a  manner,  that  it 
is  to  vest  in  the  purchaser  at  some  future  day,  and  in  the  meanwhile 
remain  vested  in  the  original  remainder-man.  Independently  of  statute, 
an  estate  of  freehold  may  be  created  to  commence  in  the  future,  with- 
out being  supported  by  a  preceding  estate,  but  the  future  estate  in  that 
case  would  be  a  springing  use  and  not  a  legal  estate  until  the  Statute  of 
Uses  executed  it.  See  post,  Sees.  355,  543.  A  vested  remainder  passes 
to  a  trustee  in  bankruptcy,  under  an  adjudication  under  the  Federal 
law  of  1898.  In  re  Haslett,  116  Fed.  Rep.  680;  In  re  Mosier,  112  Fed. 
Rep.  138.  A  vested  remainder  is  the  subject  of  an  execution  sale  for 
debts,  in  Kentucky.  Roach  v.  Dance,  80  S.  W.  Rep.  1097.  There  can 
be  no  partition  between  life  tenant  and  remainder-men,  in  Virginia. 
Turner  r.  Barraud,  46  S.  E.  Rep.  318;  Stansberry  v.  Inglehart,  9 
Mackey  134.  See  also.  Smith  v.  Runnell,  97  Iowa  55,  65  N.  W.  Rep. 
1002;  Love  V.  Blauw,  01  Kan.  496,  59  Pac.  Rep.  1059,  48  L.  R.  A.  257; 
Seiders  v.  Giles,  141  Pa.  St.  93,  21  Atl.  Rep.  514. 

30  King  V.  Scoggin,  92  N.  C.  99;  Van  Camp  v.  Fowler,  59  Hun  311; 
Lepps  {•.  Lee  (Ky. ),  16  S.  W.  Rep.  346.  It  is  not  essential  that  the 
remainder-man  take  actual  possession  of  the  property,  on  the  death  of 
the  life  tenant,  in  order  to  complete  his  title  to  the  property.  Morrison 
f.  Fletcher  (Ky.  1905),  84  S.  W.  Rep.  684. 

448 


CH.    Xin.]  REMAINDERS.  §  300 

remainder-man.'^  The  tenant  can  have  no  claim  on  the  lat- 
ter for  any  improvements  made  by  him.  If  the  improvement 
is  not  of  such  a  nature  as  to  give  him  the  right  of  removal 
under  the  law  of  fixtures,  it  becomes  a  part  of  the  soil,  and 
passes  with  it  to  the  remainder-man  upon  the  termination  of 
the  particular  estate.^^  The  tenant  cannot  do  anything  to 
defeat  a  vested  remainder;  a  disseisin  of  the  tenant  affects 
the  remainder  in  no  manner.  Nor  can  the  possession  of  the 
tenant  be  deemed  adverse  to  the  remainder-man,  either  for 
the  purpose  of  preventing  the  latter  from  conveying  his  in- 
terest, or  with  a  view  to  defeat  it  under  the  Statute  of  Limi- 
tations, unless  the  possession  be  continued  after  the  termina- 
tion of  the  particular  estate.  The  Statute  of  Limitations  does 
not  begin  to  run,  until  the  remainder  takes  effect  in  posses- 
sion.^^ And  if  the  tenant  or  a  stranger  commits  waste  upon 
the  land,  or  does  any  injury  to  the  inheritance,  the  remainder- 

31  Co.  Litt.,  Sees.  452,  453,  67  b;  Allen  V.  DeGroodt,  98  Mo.  159; 
Whitney  v.  Slater,  30  Minn.  103;  Stewart  v.  Matheny  (Miss.),  5  So. 
Rep.  387;  Pruett  v.  Hallen,  73  Ala.  369. 

32  2  Washburn  on  Real  Prop.  554;  Elwes  v.  Mawe,  3  East  38;  s.  c.  2 
Smith's  Ld.  Cas.  212;  Madigan  v.  McCarthy,  108  Mass.  376,  11  Am. 
Rep.  371;  Ford  v.  Cobb,  29  N.  Y.  344;  Tifft  v.  Horton,  53  N.  Y.  377,  13 
Am.  Rep.  537;  Thurston  V.  Dickinson,  2  Rich.  Eq.  317;  Elam  v.  Park- 
hill,  60  Texas  581;  see  ante,  Sec.  16.  Nor  can  the  tenant  of  the  particu- 
lar estate  enter  into  any  agreement  in  respect  to  the  property,  which 
will  bind  the  remainder-man.    Hill  V.  Roderick,  4  Watts  &  S.  221. 

33  2  Washburn  on  Real  Prop.  555;  see  Grout  f.  Townsend,  2  Hill  554; 
Crawley  v.  Blackman,  81  Ga.  775;  Doherty  v.  Matsell,  54  N.  Y.  Super. 
Ct.  17,  119  N.  Y.  646,  23  N.  E.  Rep.  994.  A  right  of  action  for  the  re- 
covery of  land  by  a  remainder-man  does  not  generally  accrue,  until  the 
death  of  the  life  tenant,  as  no  estate  is  vested  until  that  event.  Turner 
V.  Hause,  199  111.  464,  65  N.  E.  Rep.  445.  But  see,  under  Mo.  statute. 
Utter  V.  Sidman,  170  Mo.  284,  70  S.  W.  Rep.  702.  The  statute  of 
limitations  does  not  begin  to  run  against  a  remainder-man,  until  the 
termination  of  the  particular  estate.  Joyner  v.  Futrell,  136  N.  C.  301, 
48  S.  E.  Rep.  649;  Woodrief  v.  Wester,  136  N.  C.  162,  48  S.  E.  Rep.  578; 
Collins  V.  Lumber  Co.  (Ark.  1905),  84  S.  W.  Rep.  1044;  Thomas  t;. 
Black,  113  Mo.  66;  Kesterson  v.  Bailey,  80  S.  W.  Rep.  97;  Charleston 
Ry.  Co.  V.  Reynolds,  69  S.  C.  481,  48  S.  E.  Rep.  476;  Graham  r.  Staf- 
ford, 171  Mo.  692,  72  S.  W.  Rep.  507. 

20  449 


§  300  REMAINDERS.  [PART   II. 

man  has  his  own  action  for  damages  against  the  wrong-doer."  * 
Upon  the  termination  of  the  particular  estate,  the  property 
passes  to  the  remainder-man  with  all  its  appurtenances,  and 
if  the  building  had  been  destroyed  by  fire  during  the  con- 
tinuance of  the  particular  tenancy,  the  insurance  money 
would  go  with  the  land  to  the  remainder-man. •''° 

34  Chase  v.  Hazelton,  7  N.  H.  176;  Van  Deuscn  v.  Young,  29  N.  Y.  9; 
Brown  v.  Bridges,  30  Iowa  145.  But  no  one,  whose  reversionary  interest 
is  a  contingent  remainder  or  an  executory  devise,  can  maintain  a  legal 
action  of  waste  against  the  tenant  of  the  particular  estate,  although  his 
interest  in  the  estate  may  be  protected  by  injunction  from  destruction 
by  the  waste  of  the  particular  tenant.  Hunt  v.  Hall,  37  Me.  363.  And, 
unless  changed  by  statute,  the  remainder-man  can  maintain  the  tech- 
nical action  of  waste,  only  when  he  has  the  immediate  estate  in  re- 
mainder. If  there  is  an  immediate  estate  in  remainder  between  him  and 
the  tenant  of  the  particular  estate,  he  could  only  maintain  an  action  on 
the  case  in  the  nature  of  waste.  Williams  v.  Bolton,  3  P.  Wms.  298 ;  Co. 
Lit.  218  b,  n.  122;  1  Washburn  on  Real  Prop.  154.  But  the  distinction 
between  trespass  and  case  has  been  abolished  in  many  of  the  States,  and 
certainly  in  all  the  States  which  have  adopted  the  code  of  New  York. 
And  for  acts  of  waste  by  strangers,  the  tenant  of  the  particular  estate 
may  be  held  liable  to  the  remainder-man  or  reversioner,  if  the  waste  re- 
sults through  his  negligence  in  protecting  the  estate  from  the  trespasses 
of  strangers.  Co.  Lit.  54  a;  Attersol  V.  Stevens,  1  Taunt.  198;  Fay  v. 
Brewer,  3  Pick.  203 ;  Wood  V.  Griffin,  46  N.  H.  237 ;  Cook  v.  Champlain 
Trans.  Co.,  1  Denio  91;  Austin  v.  Hudson  R.  R.  Co.,  25  N.  Y.  341.  A 
life  tenant  who  is  bound  to  discharge  a  mortgage  on  the  entire  estate  to 
protect  his  interest,  is  entitled  to  be  subrogated  to  the  extent  of  the 
debt  chargeable  to  the  remainder,  as  against  the  remainder-man.  Wild- 
er's  Exec.  v.  Wilder  (Vt.  1903),  53  Atl.  Rep.  1072.  Where  a  life  tenant 
persistently  refuses  and  fails  to  pay  taxes  upon  the  property,  the  re- 
mainder-man is  entitled  to  a  receiver  to  collect  so  much  of  the  rent  as 
may  be  necessary  to  pay  the  taxes.  Sage  v.  Gloversville,  60  N.  Y.  S. 
791,  43  App.  Div.  254.  Although  the  life  tenant  should  pay  taxes  ac- 
cruing during  his  life,  if  the  taxes  are  unpaid,  the  remainder-man  will 
take  the  estate  charged  with  the  lien  of  such  taxes,  on  his  death,  in 
Kentucky.  Joyes  v.  Louisville,  82  S.  W.  Rep.  432*  Morrison  v.  Fletcher, 
84  S.  W.  Rep.  548.  A  purchase  of  the  life  estate  at  a  tax  sale,  by 
remainder-men,  is  upheld,  in  Iowa,  as  against  other  remainder-men. 
Crawford  v.  Meis,  123  Iowa  610,  99  N.  W.  Rep.  186,  66  L.  R.  A.  154. 

86Clybum  V.  Reynolds   (S.  C),  9  S.  E.  Rep.  973. 

450 


CH.    Xin.]  REMAINDERS.  §  301 

§  301.  Vested  and  contingent  remainders  further  distin- 
guished—  TJncertainty  of  enjoyment. —  No  uncertainty  of  en- 
joyment will  render  the  remainder  contingent.  The  contin- 
gent or  vested  character  of  the  remainder  is  only  determined 
by  the  uncertainty,  which  attends  the  vesting  of  the  right 
to  the  estate.**  But  sometimes  it  is  difficult  to  determine 
whether  the  contingency  refers  to  the  enjoyment  or  to  the 
vesting  of  the  title.  Thus,  in  a  devise  to  A.  and  B.  for  eight 
years,  remainder  to  the  testator's  executors  until  H.  B.  ar- 
rives at  twenty-one  years,  and  when  he  should  come  of  age, 
then  that  he  should  enjoy  the  same  to  him  and  his  heirs  for- 
ever. H.  B.  died  during  minority.  It  was  held  that  only 
the  enjoyment  was  postponed  to  his  arrival  at  majority,  and 
that  the  remainder  was  vested  and  descended  to  his  heirs.^^ 

3« "  The  present  capacity  of  taking  eflfect  in  possession,  if  the  pos- 
session were  now  to  become  vacant,  and  not  the  certainty  that  the  pos- 
session will  become  vacant  before  the  estate  limited  in  remainder  de- 
termines, universally  distinguishes  a  vested  remainder  from  one  that  is 
contingent."  Fearne  Cont.  Rem.  216.  See  also,  4  Kent's  Com.  202; 
Croxall  V.  Shererd,  5  Wall.  288;  Pearce  v.  Savage,  45  Me.  101;  Brown 
V.  Lawrence,  3  Cush.  390;  Williamson  v.  Field,  2  Sandf.  Ch.  533;  Allen 
V.  Mayfield,  20  Ind,  293;  Marshall  v.  King,  24  Miss.  90;  In  re  Jennings, 
1  N.  Y.  S.  565. 

87  Boraston's  Case,  3  Eep.  19;  Manning's  Case,  8  Rep.  187  b;  Good- 
title  V.  Whiteby,  1  Burr.  233;  Tomlinson  v.  Dighton,  1  P.  Wms.  17;  Doe 
V.  Lea,  3  T.  R.  41.  See  also.  Doe  v.  Moore,  14  East  601;  Furness  V. 
Fox,  1  Cush.  134;  Blanchard  V.  Blanchard,  1  Allen  223;  Manice  V. 
Manice,  43  N.  Y.  380;  Kemp  v.  Bradford,  61  Md.  330;  Johnes  f.  Beers, 
57  Conn.  295;  Hoover  v.  Hocver,  116  Ind.  498;  Wedekind  v.  Hallenberg 
(Ky.),  10  S.  W.  Rep.  368;  Goebel  v.  Wolf,  113  N.  Y.  405;  Wills  v.  Wills, 
85  Ky.  486;  Dowling  v.  Reber,  65  Miss.  2.59;  Shadden  v.  Hembree,  17 
Ore.  14;  Legwin  v.  McRee,  79  Ga.  430;  Dorr  v.  Lovering,  147  Mass.  530; 
Goerlitz  r.  Malawesta,  56  Hun  120;  Siddons  v.  Cockrell  (III.),  23  N.  E. 
Rep.  586;  Hamon  v.  Dyer  (Ky.),  12  S.  W.  Rep.  774;  Pond  v.  Allen,  15 
R.  L  171;  Myers  v.  Adler,  6  Mackey  515;  Chaw  v.  Keller,  100  Mo.  362; 
Kingman  v.  Harmon  (111.),  23  N.  E.  Rep.  430;  Schwartz's  Appeal,  119 
Pa.  St.  337;  Williams  V.  Williams,  73  Cal.  99;  Davidson  v.  Bates,  111 
Ind.  391;  Davidson  v.  Hutchins  (Ind.),  4  N.  E.  Rep.  106;  Rhodes  v. 
Shaw,  43  N.  J.  Eq.  430;  Craig  v.  Ambrose  (Ga.),  4  S.  E.  Rep.  1; 
Weatherhead  v.  Stoddard,  58  Vt.  623;  Kouvalinka  v.  Geilbel,  40  N.  J. 
Eq.  443.     Where  a  life  estate  is  granted  to  a  woman  and  remainder  to 

451 


§  301  REMAINDERS.  [PART   II. 

Not  only  will  the  mere  uncertainty  of  enjoyment  not  make  the 
remainder  contingent,  but  the  remainder  will  be  a  good 
vested  one,  although  it  may  be  absolutely  impossible  for  the 
remainder-man  ever  to  enjoy  the  possession  of  it.  Thus  a 
grant  to  A.  for  one  thousand  years,  remainder  to  B.  for  life ; 
B.  is  sure  to  die  before  the  natural  expiration  of  A. 's  estate, 
but  the  remainder,  nevertheless,  is  good,  although  it  ends  with 
B.  's  death.  And  if  the  remainder  to  B.  were  in  fee,  although 
he  would  be  able  to  enjoy  it,  he  could  convey  it  to  others  or 
devise  it,  and  if  he  died  without  making  a  disposition  of  it,  it 
would  descend  to  his  heirs.^^  So,  also  would  this  be  the  case 
where  the  grant  was  to  A.  for  life,  remainder  to  B.  during 
the  life  of  A.  B.  could  only  enjoy  his  remainder  in  the  event 
that  A.'s  estate  was  destroyed  by  forfeiture,  escheat  or  mer- 
ger, and  it  may  not  be  defeated  at  all.  Nevertheless,  B. 's  es- 
tate is  a  vested  remainder.  But  wherever  the  title  vests  only 
upon  the  happening  of  a  future  contingency,  whatever  gen- 
erally may  be  that  contingency — whether  it  be  the  birth  of 
the  remainder-man  or  some  collateral  event — the  remainder 

her  children,  such  children  as  are  living  at  the  time  of  the  grant  take  a 
vested  remainder.  In  re  Haslett,  116  Fed.  Rep.  680.  Under  the,  Mis- 
souri statute,  converting  all  estates  tail  into  life  estates,  all  convey- 
ances or  devises  to  a  grantee  and  the  heirs  of  his  body,  passes  a  re- 
mainder to  such  heirs,  with  life  estate  to  the  grantee.  Tindall  v.  Tin- 
dall,  167  Mo.  218,  66  S.  W.  Eep.  1092;  Utter  v.  Sidman,  170  Mo.  284, 
70  S.  W.  Rep.  702.  A  conveyance  to  a  grantee  for  life,  remainder  to  his 
heirs,  vests  the  title  in  a  grandchild  of  such  grantee,  although  both 
parent  and  grandchild  died  before  the  grantee,  as  the  remainder  was 
vested  on  birth  of  the  grandchild  and  would  vest  in  his  father,  on  his 
death,  in  Michigan,  under  statute  of  that  State.  Porter  V.  Osmon,  98 
N.  W.  Rep.  859.  A  grant  to  the  heirs  of  a  life  tenant,  and,  on  fail- 
ure of  such,  to  the  heirs  of  a  living  third  person,  creates  a  vested  re- 
mainder in  the  heirs  of  such  life  tenant,  with  a  contingent  remainder  to 
the  heirs  of  such  third  person,  in  Minnesota.  Minnesota  Deb.  Co.  V. 
Dean,  85  Minn.  473,  89  N,  W.  Rep.  848. 

38  2  Washburn  on  Real  Prop.  547;  Williams  on  Real  Prop.  252;  Fearne 
Cont.  Rem.  216;  Parkhurst  v.  Smith,  Wiles  338;  Williamson  v.  Field,  2 
Sandf.  533;  Manderson  v.  Lukens,  23  Pa.  St.  31;  Kemp  V.  Bradford,  61 
Md.  330;  Kennard  V.  Kennard,  63  N.  H.  303. 
452 


CH.    XIII.]  REMAINDERS.  §  301 

is  contingent,  and  there  is  no  present  vested  right.  And  it 
has  been  held  by  the  New  Hampshire  courts  that  a  grant  to 
A.  for  life,  remainder  after  his  death  to  B.,  would  make  the 
remainder  to  B.  contingent,  since  by  the  terms  of  the  con- 
veyance B.  was  only  to  take  the  estate  after  the  death  of 
A.,  and  A.  's  estate  may  be  defeated  before  its  natural  termina- 
tion by  forfeiture,  or  merger  into  the  inheritance.^®  But  this 
view  is  generally  rejected  by  the  authorities,  which  hold  that 
an  express  and  explicit  reference  to  such  a  contingency  is 
necessary  to  make  the  remainder  contingent.*"     And  the  same 

39  Hall  V.  Nute,  38  N.  H.  422;  Hayes  v.  Tabor,  41  N.  H.  521;  Wil- 
lett's  Adnir.  f.  Putter's  Admr.,  84  Ky.  317;  Whittaker  v.  Whittaker,  40 
N.  J.  Eq.  33.  In  Hall  v.  Nute,  the  devise  was  to  Esther  Tuttle,  "to 
hold  as  long  as  she  lives  a  natural  life;  also  the  land  which  I  have 
given  to  .Esther  Tuttle  as  long  as  she  lives,  after  her  decease  I  give  and 
bequeath  the  same  to  my  son,  William  Tuttle,  as  long  as  he  lives  a 
natural  life,  and  no  longer;  and  after  his  decease,  I  give  and  bequeath 
the  same  to  his  heirs  and  assigns."  The  court  say:  "William  Tuttle, 
under  the  devise,  could  not  take  the  estate  limited  to  him  in  remainder 
until  the  death  of  Esther  Tuttle.  If  her  estate  were  destroyed  during 
life,  by  forfeiture,  or  by  surrender  and  merger  in  the  inheritance,  the 
remainder  limited  to  William  Tuttle  could  never  vest  in  possession, 
though  he  might  survive  his  mother,  because  there  would  be  no  par- 
ticular estate  to  support  the  remainder."  The  court  rest  their  opinion 
on  the  authority  of  Doe  v.  Holmes,  2  W.  Bl.  777,  in  which  the  devise 
was  '•  to  J.  S.  for  the  term  of  his  natural  life,  and  after  his  decease  to 
the  heirs  male  and.  female  of  J.  S."  This  was  to  be  a  contingent  re- 
mainder. But  it  is  readily  observed  by  the  reader  that  the  contingency 
arose  from  the  uncertainty  of  the  remainder-men,  being  described  as 
the  heirs  of  a  living  person.  In  White's  Trustee  r.  White  (Ky.),  7  S. 
W.  Rep.  26,  the  remainder  was  held  to  be  contingent,  where  it  was 
granted  to  the  children  of  life  tenant  surviving  her  and  to  the  repre- 
sentatives of  such  as  may  be  dead.  See  also,  to  same  effect.  Overman  t?. 
Simo,  96  N.  C.  451;  Larmour  v.  Rich  (Md.),  18  Atl.  Rep.  702;  Shanka 
V.  Mills,  25  S.  C.  356;  Roundtree  r.  Roimdtree,  26  S.  C.  450;  Kinnan  v. 
Card,  4  Donio  (X.  Y.)  156;  Byrnes  t*.  Labagh,  38  Hun  623.  But  see, 
ootrtra,  Boykin  r.  Boykin,  21  S.  C.  513. 

«'4  Kent's  Com.  202;  Carter  r.  Hunt,  40  Barb.  89;  Williamson  v. 
Field,  2  Sandf.  Ch.  533;  Moore  f.  Lyons,  25  Wend.  144;  De  Vaughn  v. 
Mcl^roy,  82  Ga.  087;  Mercantile  Bank  V.  Ballard,  83  Ky.  431;  Mitchell 
V.  Knapp.  54  Hun  500;  Brewer  v.  Cox  (Md.),  18  Atl.  Rep.  146;  Delany 
V.  Middleton    (Md.)     19  Atl.  Rep.   146;   Pond  v.  Allen,   15  R.   I.   171; 

453 


§  301  REMAINDERS.  [pART   II. 

ruling  has  been  adopted  by  a  case  in  New  Hampshire.*^ 
Wherever  there  is  a  doubt  as  to  whether  a  remainder  is  vested 
or  contingent,  the  courts  always  incline  to  construe  it  a  vested 
estate.*^'  Thus,  in  a  devise  to  A.  for  life,  remainder  to  the 
surviving  children  of  J.  S.,  there  being  a  doubt  whether  the 
surviving  refers  to  the  death  of  the  testator,  or  of  A.,  and 

Hudgens  v.  Wilkins,  77  Ga.  555;  Legwin  r.  McRee  (Ga.),  4  S.  E.  Rep. 
863;  Elkins  V.  Carsey  (Tenn.),  3  S.  W.  Rep.  828;  Chasey  V.  Gowdry, 
43  N.  J.  Eq.  95;  Railey  v.  Milam  (Ky.),  5  S,  W.  Rep.  367;  McDaniel 
V.  Allen,  64  Miss.  417;  Curtis  v.  Fowler  (Mich.),  33  N.  W.  Rep.  804; 
Harris  v.  Carpenter,  109  Ind.  640;  Gibbens  v.  Gibbens,  140  Mass.  102; 
Olmstead  v.  Dunn,  72  Ga.  850;  Fussey  v.  White,  113  }\\.  637.  The 
presumption  is  always  in  favor  of  the  remainder  being  vested,  and  es- 
pecially in  devises,  the  remainder  will  not  be  held  to  be  contingent, 
unless  it  is  the  apparent  intention  of  the  testator  that  the  remainder 
shall  be  contingent.  If  there  is  an  express  declaration  that  the  re- 
mainder-man shall  take  the  estate  at  the  natural  termination  of  the 
particular  estate,  and  at  no  other  time,  the  remainder  will  be  neces- 
sarily contingent.  See  Sinton  v.  Boyd,  19  Ohio  St.  57,  2  Am.  Rep.  469 
In  re  Paton  (N.  Y.),  18  N.  E.  Rep.  625;  Hawley  v.  Peavey,  128  111 
430;  Appeal  of  Com.  Title  Ins.  Co.,  126  Pa.  St.  223;  Mercantile  Trust 
etc.,  Co.,  V.  Brown  (Md.),  17  Atl.  Rep.  937;  Willett's  Admr.  84  Ky 
317;  Bates  v.  Gillett  (111.),  24  N.  E.  Rep.  611;  Robinson  v.  Female  Or 
phan  Asylum,  123  U.  S.  702;  Ferguson  v.  Thomasson  (Ky.),  9  S.  W 
Rep.  714;  Allsmiller  V.  Freutchenicht  (Ky.)",  5  S.  W.  Rep.  746;  Reich 
ard's  Appeal,  116  Pa.  St.  232;  Crane's  Appeal,  106  Pa,  St.  232;  Holmes 
Appeal,  116  Pa.  St.  232;  Kurst  V.  Paton,  4  Denio  (N.  Y.)  180;  Teets 
V.  Weise,  47  N.  J.  L.  154.  But  it  is  so  extremely  unlikely  that  the  tes- 
tator, in  a  will  like  the  New  Hampshire  case,  could  have  c-ontemplated 
the  possible  forfeiture  or  merger  of  the  peculiar  estates,  and  have  in- 
tended that  the  remainder-man  should  not  take  in  such  an  event,  that 
such  a  construction  would  be  maintained  only  upon  the  strongest  proof 
that  such  was' the  intention  of  the  testator.  See  Porter  v.  Osmon,  98 
N.  W.  Rep.  859;  Minnesota  Deb.  Co.  v.  Dean,  85  Minn.  473,  89  N.  W. 
Rep.  848.    . 

41  Crosby  v.  Crosby,  64  N.  H.  77. 

42  Doe  V.  Pcrryn,  3  T.  R.  484;  Doe  V.  Prigg,  8  B.  &  C.  231 ;  Duffield  V. 
Duffield,  1  Dow.  &  C.  311;  Croxall  v.  Shererd,  5  Wall.  287;  Fay  V.  Syl- 
vester, 2  Gray  171;  Doe  v.  Provoost,  4  Johns,  61;  Moore  v.  Lyons,  25 
Wend.  119;  Wills  v.  Wills  (Ky.),  3  S.  W.  Rep.  900;  Scofield  v.  Olcott, 
120  111.  362;  Anthony  v.  Anthony,  55  Conn.  256.  But  see  Ewing  v. 
Winters  (W.  Va.),  11  S.  E.  Rep.  718;  Atmore  v.  Walker,  46  Fed.  Rep. 
429. 

454 


CH,    Xm.]  REMAINDERS.  §  301 

the  latter  construction  would  make  the  remainder  contingent, 
the  court  held  that  it  referred  to  the  death  of  the  testator,  and 
that,  therefore,  the  remainder  was  vested.*^  And  very  often  a 
remainder  will  be  construed  to  be  a  vested  estate  upon  condi- 
tion subsequent,  liable  to  be  divested  by  the  happening  of  a 
contingency  rather  than  to  declare  it  a  contingent  remainder. 
For  example,  a  devise  was  made  to  E.  &  J.  for  their  lives  suc- 
cessively, and  after  the  death  of  the  longest  liver  of  them  to 
A.  B.,  if  he  lived  to  attain  the  age  of  twenty-one  years,  but 
if  he  died  before  that  age,  then  over  to  C.  B.  It  was  held 
that  the  remainder  to  A.  B.  was  vested,  but  was  liable  to  be 
defeated  by  the  death  of  A.  B.  during  his  minority.^*  The 
same  favor  towards  the  construction  of  a  remainder  as  vested 
is  displayed  in  the  case  where  an  estate  in  remainder  is  limited 
to  take  effect  in  default  of  the  exercise  of  a  power  of  appoint- 

43  Doe  V.  Prigg,  8  B.  &  C.  231;  Smither  r.  Willock,  n  Vcs.  233;  Eld- 
ridge  V.  Eldridge,  9  Cush.  516;  Moore  v.  Lyons,  2.")  Wend.  119;  Harris 
,v.  Carpenter,  109  Ind.  540;  Hoover  v.  Hoover,  116  Ind.  498;  Bunting  V. 
Speek,  41  Kan.  424;  King  v.  Trick  (Pa.),  19  Atl.  Rep.  951;  Lombard 
i;.  Willis  (Mass.),  16  N.  E.  Rep.  737;  Stone  v.  Lewis'  Admr.  (Va.),  5 
S.  E.  Rep.  282;  Vason  v.  Estes,  77  Ga.  352.  But  see  contra,  Roundtree 
V.  Roundtree,  26  S.  C.  450. 

•»*Bromfield  V.  Crowder,  1  Bos.  &  P.  N.  R.  313;  Doe  V.  Nowell,  1  M. 
&  S.  327 ;  Johnson  V.  Valentine,  4  Sandf.  36 ;  Maurice  v.  Maurice,  43  N. 
Y.  380;  Ross  V.  Drake,  37  Pa.  St.  373;  Bentley  v.  Long,  1  Strobh.  Eq. 
43;  Phillips  V.  Phillips,  19  Ga.  261;  In  re  Batione's  Estate,  136  Pa.  St. 
307;  Hills  V.  Barnard,  152  Mass.  67;  Camp  v.  Cronkright,  59  Hun  488; 
Lepps  V.  Lee  (Ky.),  16  S.  W.  Rep.  346;  Havens  v.  Seashore  Law  Co. 
(N.  J.),  20  Atl.  Rep.  497;  Kilgore  V.  Kilgore,  127  Ind.  276;  Dodd  v. 
Winship,  144  Mass.  461;  Gardner  V.  Hooper,  3  Gray  398;  Dorling  V. 
Blanchard,  109  Mass.  176;  McArthur  V.  Scott,  113  U.  S.  340;  I^nz  v. 
Prcscott,  144  Mass.  505;  Security  Co.  v.  Hardenburgh,  53  Conn.  169; 
Withers  v.  Sims,  80  Va.  651;  Re  Cogswell,  4  Denio  (N.  Y.)  248;  Mead 
V.  Maben,  14  N.  Y.  732.  See  contra,  Sinton  v.  Boyd,  19  Ohio  St.  51,  2 
Am.  Rep.  369.  See  Goldtree  v.  Thompson,  79  Cal.  613;  Hudgens  r. 
Wilkins,  77  Ga.  555;  Grossman's  Exr.,  1  N.  Y.  S.  103;  Silvers  V.  Canary, 
114  Ir.d.  129;  Schwartz's  Appeal,  119  Pa.  St.  3.37;  Churchman's  Ap- 
peal (Pa.),  12  Atl.  Rep.  600;  Strauss  v.  Rost,  67  Ind.  465;  Chamber- 
lain V.  Young's  Exr.  (Ky.),  5  S.  W.  Rep.  380;  In  re  Jobson,  44  Ch.  D. 
154;  Wood  V.  Mason  (R.  I.),  20  Atl.  Rep.  264. 

455 


§  302  REMAINDERS.  [pART   II. 

ment.     Such  a  remainder  has  been  held  to  be  a  vested  re- 
mainder, liable  to  be  defeated  by  the  exercise  of  the  power.^° 

§  302.  Same  —  Remainder  to  a  class. —  The  general  rule  is 
that  a  remainder  is  contingent,  if  the  persons  who  are  to  take 
are  not  in  esse,  or  are  not  definitely  ascertained.  But  where 
the  remainder  is  limited  to  a  class,  some  of  whom  are  not  in 
esse,  the  remainder  has  repeatedly  been  held  to  be  vested — 
liable,  however,  to  open  and  let  in  those  who  are  afterwards 
born  during  the  continuance  of  the  particular  estate.  It  is 
questionable  whether  a  simi>le  limitation  in  remainder  to  a 
class,  as  to  children,  will  open  to  let  in  after-born  chil- 
dren, if  there  are  some  in  esse  who  can  take.  And  the 
after-born  children  are  in  fact  excluded  from  participation 
in  the  remainder,  unless  the  intention  of  the  testator 
or  grantor  is  shown  by  the  context  to  be  otherwise.*®  But  if 
there  is  any  circumstance  connected  with  the  grant  or  devise 
which  indicates  such  an  intention  on  the  part  of  the  donor,  it 
can  and  will  have  that  effect.  Thus,  in  a  devise  to  A.  for 
life,  and  at  her  death  to  her  children,  the  remainder  would 
be  vested  in  the  children  who  are  in  esse  at  the  testator's 
death,  and  it  will  open  and  let  in  the  children  born  afterwards 
during  the  life  of  A.,  or  during  the  continuance  of  her  es- 
tate.*'    But  while  remainders  to  children  are  generally  held 

«  Sandford  V.  Blake,  45  N.  J.  Eq.  247 ;  De  Vaughn  v.  McLeroy,  82 
Ga.  687;  Phillips  v.  Wood  (R.  I.),  15  Atl.  Rep.  88;  Mutual  Life  Ins. 
Co.  V.  Shipman,  109  N.  Y.  19 ;  Grosvenor  v.  Bowen,  15  R.  I.  549 ;  Welsh 
V.  Woodbury,  144  Mass,  542;  Seofield  V.  Olcott,  120  111.  362;  Walker  V. 
Pritchard,  121  111.  221;  Harbison  V.  James,  90  Mo.  411;  Re  McClyment, 
16  Abb.  N.  C.  262;  Hardy  v.  Clarkson,  87  Mo.  171. 

<6  Parker  v.  Glover,  42  N.  J.  Eq.  559.  Where  a  remainder  is  granted 
to  take  eflFect  only  on  the  death  of  the  life  tenant,  then  to  go  to  the  re- 
mainder-men named,  as  a  class,  the  vesting  of  the  remainder  cannot  be 
accelerated  by  a  release  of  the  life  tenant,  since  it  is  impossible  to  de- 
termine who  would  take  the  remainder,  on  her  death.  Rogers  V.  Trust 
Co.,  55  Atl.  Rep.  679. 

47  Doe  V.  Prigg,  8  B.  &  C.  231;  Dod  v.  Perryn,  3  T.  R.  484;  Viner 
V.  Francis,  2  Cox  190*  Doe  v.  Considine,  6  Wall.  475;  Dingley  v.  Din^:- 
456 


CH.    XIII.]  REMAINDERS.  §  303 

to  be  vested  as  to  those  in  being  only  liable  to  open  and  let  in 
after-born  children,  this  is  not  always  the  case.  If  the  re- 
mainder is  limited  to  children  living  at  the  death  of  the  life 
tenant,  the  remainder  is  contingent  until  the  death  of  the  life 
tenant.  This  is  so,  although  it  may  be  provided  that  in  the 
event  of  the  prior  death  of  any  of  the  children,  the  share  of 
such  child  or  children  should  vest  in  his  or  their  issue.  The 
issue  would  in  that  case  take  as  purchasers,  and  not  as  heirs, 
unaffected  by  any  attempted  conveyance  of  the  remainder  bj' 
the  deceased  parent.**  Those  who  are  in  esse  do  not  take  an 
absolute  vested  estate.  They  cannot  bar  the  rights  of  those 
who  are  unborn  by  any  conveyance  they  may  make.  Their 
estate  is  vested,  but  is  liable  to  be  defeated  pro  tanto  by  the 
subsequent  birth  of  the  other.  And  so  strictly  are  the  rights 
of  the  unborn  guarded,  that  a  sale  by  the  guardian  of  the 
children  already  born  under  a  decree  of  court  was  held  not 
to  affect  the  title  of  the  after-born  children.*" 

§  303.  Same  —  After  the  happening  of  the  contingency. — 
But  whatever  distinction  may  exist  between  a  vested  and  a 
contingent  remainder  at  their  creation,  they  cease  to  be  distin- 
guishable when  the  uncertain  event  which  rendered  the  re- 
mainder contingent  has  happened.     After  that,  the  contingent 

ley,  5  Mass.  .53.5;  Ballard  v.  Ballard,  18  Pick.  41;  Moore  v.  Weaver,  16 
Gray  307;  Worcester  v.  Worcester,*  101  Mass.  132;  Yeaton  V.  Roberts, 
28  N.  H.  466;  Doe  v.  Provoost,  4  .Johns.  61;  Jenkins  V.  Freyer,  4  Paige 
Ch.  47.  See  Millicamp  v.  Millicamp,  28  S.  C.  12.5;  Gourdin  V.  Deas  (S. 
C),  4  S.  E.  Rep.  64;  Surdam  v.  Cornell,  116  N.  Y.  305;  Loring  v. 
Games,  148  Mass.  223 ;  Peckham  V.  Lego,  57  Ct.  553 ;  Dulany  V.  Middle- 
ton  (Ind.),  19  Atl.  Rep.  146;  Famam  V.  Farnam,  .53  Conn.  261;  Conger 
V.  Lowe  (Ind.),  24  N.  E.  Rep.  889;  Goodrich  v.  Pierce,  83  Ga.  781;  Toole 
V.  Perry  (Ga.),  7  S.  E.  Rep.  118;  Cowles  v.  Cowles  (Conn.),  13  Atl. 
Rep.  414;  Stockbridge  r.  Stockbridge,  145  Mass.  517;  Irvin  v.  Clark,  98 
N.  C.  437 ;  Ballentine  V.  Wood,  42  N.  J.  Eq.  5.52. 

48  Acker  v.  Osborne,  45  N.  J.  Eq.  377;  Dwight  v.  Eastman,  62  Vt. 
398;  but  see  Jones  V.  Beers,  57  Conn.  295;  Kansas  City  Land  Co.  v. 
Hill,  3  Pickle  589;  Rogers  v.  Trust  Co.,  55  Atl.  Rep.  679. 

40  Adams  V.  Ross,  30  N.  J.  513;  Graham  v.  Houghtalin,  30  N.  J.  L. 
558. 

457 


§  304  REMAINDERS.  [PART   H. 

remainder  is  vested,  and  has  all  the  characteristics  which  it 
would  have  had,  if  it  had  been  vested  ah  initio.  But  the 
vesting  of  a  contingent  remainder  must  take  place  at  or  before 
the  termination  of  the  particular  estate ;  if  it  occurs  after- 
wards, the  remainder  fails,  and  the  estate  reverts  to  the 
grantor  or  the  testator's  heirs,  as  the  case  may  be.'° 

§  304.  Cross-remainders. —  Where  particular  estates  are 
given  to  two  or  more  in  different  parcels  of  land,  or  in  the 
same  land  in  undivided  shares,  and  the  remainders  of  all  the 
estates  are  made  to  vest  in  the  survivor  or  survivors,  the 
future  estates  are  called  cross-remainders.  To  explain  by  ex- 
ample, an  estate  for  life  is  given  in  undivided  shares  to  A. 
and  B.,  remainder  to  the  survivor  and  his  heirs;  or  to  A.  and 
B.  in  tail,  remainder  of  A.'s  estate,  upon  failure  of  issue,  to 
B.,  in  fee,  and  remainder  of  B.'s  estate,  upon  failure  of  issue, 
to  A.°^  In  some  cases,  as  in  the  first  example,  the  limitations 
resemble  a  joint-tenancy  in  point  of  effect,  the  doctrine  of 
survivorship  being  practically  present.  But  in  the  case  of 
cross-remainders,  the  remainders  are  not  destroyed  by  a  par- 
tition, nor  is  it  necessary  that  they  should  have  present  in 
them  the  four  unities  of  time,  title,  estate  and  possession,  so 
essential  in  the  creation  of  a  joint-tenancy.  Although  it  is 
usually  the  case,  yet  it  is  not  necessary  that  the  particular  es- 
tates should  be  unah^ided  shares  in  the  same  land ;  and  if  they 
are,  that  they  should  be  equal  shares.  These  estates,  with 
their  remainders,  may  be  interests  in  altogether  different  par- 
cels of  land.     Cross-remainders  may  be  limited  by  deed  or  by 

50  1  Prest.  Est.  484 ;  2  Washburn  on  Real  Prop.  556 ;  Doe  V.  Perryn,  3 
T.  R.  484;  Doe  v.  Considine,  6  Wall.  475;  Wendell  V.  Crandall,  1 
Comst.  491;  Rogers  r.  Trust  Co.,  55  Atl.  Rep.  679. 

51  2  Washburn  on  R?al  Prop.  556,  557 ;  4  Cruise  Dig.  298 ;  1  Prest.  Est. 
94;  Co.  Lit.  195  b,  Butler's  note  1;  4  Kent's  Com.  201;  Rockwell  V. 
Swift  (Conn.),  20  Atl.  Rep.  200;  Dowling  v.  Raber  (Miss.),  3  So.  Rep. 
0.54;  Gorham  v.  Betts  (Ky.),  5  S.  W.  Rep.  465;  Rowland  v.  Rowland, 
93  N.  C.  214;  Simp.son  v.  Cherry  (S.  C),  12  S.  E.  Rep.  886;  Dana  v. 
Murray,  122  N.  Y.  604. 

458 


CH.   XIU.]  REMAINDERS.  ,  '  §  304 

will,  and  in  a  will  they  need  not  be  by  express  limitation; 
they  may  arise  by  implication.  But  in  a  deed,  in  conformity 
with  the  general  rule  of  construction  of  deeds,  they  can  only 
be  created  by  express  terms.'-  They  may  be  vested  or  con- 
tingent, and  may  be  made  to  vest  at  any  time,  provided  the 
contingency  is  not  to  happen  after  the  termination  of  the 
particular  estate.^^  Thej"^  may  be  limited  between  two  or  any 
greater  number  of  persons ;  '*  and  they  should  be  so  created 
that  upon  the  vesting  of  a  remainder  it  should  carry,  not 
only  the  original  estate  of  the  tenant  of  the  particular  estate, 
but  also  all  other  remainders  which  may  have  vested  in  him 
and  been  transmitted  to  him  from  the  others,  whose  particular 
estates  had  previously  terminated.'^''  In  fact,  this  is  the  most 
reliable  test  by  which  to  determine  the  existence  of  cross-re- 
mainders, viz. :  whether  the  entire  estate,  with  all  its  limita- 
tions, passes  from  one  to  another,  at  the  termination  of  the 
particular  estate  and  death  of  each,  until  the  whole  estate 
vests  in  the  heirs  of  the  survivor. ''*  But  if  the  grantor  or 
testator  does  not  manifest  an  intention  that  the  transfer  of 
one  co-tenant's  share  to  the  survivor  shall  carry  whatever  in- 
terests may  have  become  vested  in  him  through  the  previous 
death  of  some  other  co-tenant,  that  will  not  be  the  result  of 
his  death.     Upon  his  death  his  original  share  of  the  estate  will 

B2  Co.  Lit.  195  b,  note  82 ;  Watson  v.  Foxon,  2  East  36 ;  Doe  v.  Wors- 
ley,  1  East  416;  Cole  v.  Livingston,  1  Vent.  224;  Cook  v.  Gerrard,  I 
Wms.  Saund.  186  n;  Hall  v.  Priest,  6  Gray  18;  Fenley  v.  Johnson,  21 
Md.  117. 

63  But  this  is  subject  to  the  qualification  to  be  hereafter  stated  and 
explained  (see  post,  Sec.  312)  that  a  contingent  remainder  must  not  be 
too  remote.  The  same  rule  applies  to  cross- remainders.  Seaward  v. 
Willock,  5  East  206;  Wood  v.  Griffin,  46  N.  H.  23.5. 

'•<  It  was  once  doubted  that  cross-remainders  could  be  limited  to  more 
than  two,  Gilbert  v.  Witty,  Cro.  Jac.  656 ;  Twisdin  v.  Lock.  Ambl.  665 ; 
Wright  V.  Holford,  Cowp,  31.  But  it  has  now  been  definitely  settled 
that  there  can  be  more  than  two  cross  remainder-men.  Doe  v.  Webb,  1 
Taunt.  233;  Watson  v.  Foxon,  2  East  36;  Doe  v.  Worsley,  1  East  416; 
Hall  V.  Priest,  6  Gray  18;  Fenby  v.  Johnson,  21  Md.  117. 

58  2  Washburn  on  Real  Prop.  557 ;  Co.  Lit.  195  b,  note  82. 

86  Doe  V.  Webb,  1  Taunt.  233;  Fenby  v.  Johnson,  21*  Md.  117. 

459 


§  304  •  REMAINDERS.  [PART   II. 

go  to  the  survivor,  but  the  share  which  came  to  him  in  re- 
mainder on  the  death  of  some  other  co-tenant  will  pass  to  his 
heirs  at  law  as  an  ordinary  estate  of  inheritance."' 

BTMcGee  v.  Hall,  26  S.  C.  179.     See  Reynolds  17.  Crispin    (Pa.),  11 
Atl.  Rep.  236. 
460 


SECTION  II. 

CONTINGENT  REMAINDERS. 

Section  305.  Nature  and  origin  of  contingent  remainders 

306.  Classes  of  contingent  remainders. 

307.  Alienation  of  contingent  remainders. 

308.  Vested  remainder  after  a  contingent. 

309.  Same  —  Such  limitations  in  wills. 

310.  Alternate  remainders  in  fee. 

311.  Restrictions  on  contingency  —  Legality. 

312.  Same  —  Remoteness. 

313.  Same  —  Abridging  the  particular  estate. 

314.  How  contingent  remainders  may  be  defeated. 

315.  Same  —  1.  By  disseisin   of  particular  tenant. 

316.  Same  —  2.  By  merger. 

317.  Same  — 3.  By   feoffment. 

318.  Same  —  4.  By  entry  for  condition  broken. 

319.  Trustees  to  preserve. 

320.  Actions  by  remainder-nien. 

§  305.  Nature  and  origin  of  contingent  remainders. —  It  has 
been  contended,  with  much  show  of  reason,  that  the  ancient 
common  law  did  not  admit  of  the  creation  of  any  but  vested 
remainders.  And  until  the  reign  of  Henry  VI  no  case  ap- 
pears upon  record,  in  which  they  have  been  held  to  be  valid 
limitations."*  In  that  reign  it  was  held  that  in  the  convey- 
ance to  A.  for  life,  remainder  to  the  heirs  of  J.  S.,  the  re- 
mainder was  a  good  limitation,  which  remained  contingent 

»8  2  Washburn  on  Real  Prop.  560 ;  Williams  on  Real  Prop.  263.  The 
earlier  authorities,  on  the  contrary,  are  rather  opposed  to  such  a  conclu- 
sion. Williams  on  Real  Prop.  264.  Mr.  Williams  says  that  the  reader 
should  be  informed  that  the  assertion  is  grounded  only  on  the  writer's 
researches.  The  general  opinion  appears  to  be  in  favor  of  the  antiquity 
of  contingent  remainders  (p.  263,  note  d),  citing  3d  Rep.  of  Real  Prop. 
Oomm'rs  23. 

461 


§  305  CONTINGENT   REMAINDERS.  [PART    II. 

until  the  death  of  J.  S.,  and  was  defeated  if  he  did  not  die 
during  the  life-time  of  A.  The  heirs  of  J.  S.  would  take  the 
estate  in  fee  at  the  death  of  A.,  as  if  they  had  been  heirs  of 
A."®  It  was  also  involved  in  doubt,  in  early  times,  what  be- 
came of  the  fee  while  the  remainder  continued  to  be  contin- 
gent. Until  the  contingency  happened,  the  contingent  re- 
mainder was  deemed  a  mere  possibility — a  chance  of  getting 
an  estate,  rather  than  the  estate  itself.  It  was  considered  an 
executory  interest,  the  title  to  which  only  vested  when  the 
contingency  happened.  Some  of  the  older  authorities  held 
that  the  title  to  the  fee  remained,  to  use  their  quaint  expres- 
sions, in  nuhibus,  in  gremio  legis,  etc.  In  other  words,  the 
title  is  kept  in  abeyance  while  the  remainder  is  contingent."" 
But  the  modern  authorities  are  inclined  to  hold  that  it  re- 
mains in  the  grantor,  and  that  he  is  not  divested  of  the  title 
in  remainder  until  the  contingency  arrives,"^  In  conformity 
with  the  older  view  of  the  nature  of  a  contingent  remainder, 
it  was  formerly  held  that  it  was  not  capable  of  alienation,  nor 
could  it  be  devised.®^  But  it  is  now  definitely  settled  that,  al- 
though the  contingent  remainder  can  only  be  considered  as  a 
possibility,  or,  at  best,  only  an  estate  in  expectancy,"^  yet 
there  is  a  sufficient  present  right  to  it  upon  the  happening  of 
the  contingency,  as  to  be  capable  of  alienation  and  devise. 
The  conveyance  of  a  contingent  remainder  will  operate  as  an 
estoppel  or  as  an  assignment  in  equity,  unless  such  remainders 

5»  2  Washburn  on  Real  Prop.  560,  ,561 ;  2  Bla.  Com.  169-171 ;  Williams 
on  Real  Prop.  264.  An  estate  which  is  limited  to  take  effect  either  to 
a  dubious  and  uncertain  person,  or  on  a  dubious  or  uncertain  event,  is 
contingent  and  since  a  contingent  remainder  is  only  the  chance  of  hav- 
ing an  estate,  it  cannot  be  said  to  be  an  "  estate  "  in  land.  Taylor  e. 
Adams,  93  Mo.  App.  277, 

60  Williams  on  Real  Prop.  266;  Co.  Lit.  342  a;  1  Prest.  Est.  251;  2 
Prest.  Abst.  100-107. 

61  Williams  on  Real  Prop.  266;  Co.  Lit.  191a,  Butler's  note  78; 
Fearne  Cont.  Rem.  361;  Waters  v.  Bishop,  122  Ind.  161.  But  see  4 
Kent's  Com.  259. 

62  2  Washburn  on  Real  Prop.  562 ;  Williams  on  Real  Prop.  268. 
68  2  Washburn  on  Real  Prop.  560;  1  Prest.  Est.  75. 

462 


CH.    Xin.]  CONTINGENT   REMAINDERS,  §  305 

are  made  alienable  by  statute.  It  is  still  the  rule  of  law,  in 
the  absence  of  a  statute,  that  there  can  be  no  legal  conveyance 
of  a  contingent  remainder.**  But  it  was  always  possible  for  a 
contingent  remainder-man  to  release  to  one  in  possession. 
The  contingent  remainder  also  descends  to  the  heirs  of  the 
remainder-man  upon  his  death  before  the  contingency,  pro- 
vided the  contingency  does  not  arise  from  the  uncertainty  of 
the  person  who  is  to  take  the  remainder.*"*  Wliere  the  re- 
mainder-man is  uncertain,  no  grant  or  devise  can  be  made 
before  the  happening  of  the  contingency  which  will  have  any 
effect,  either  in  law  or  equity.*' 

64  1  Prest.  Est.  76;  2  Cruise  Dig.  333;  Fearne  Cont.  Rem.  551;  Rob- 
ertson V.  Wilson,  38  N.  H.  48;  Loring  v.  Eliot,  16  Gray  574;  Knight  r. 
Paxton,  124  U.  S.  552;  Doe  v.  Oliver,  10  B.  &  C.  181;  Roe  v.  Dawson,:? 
Ld.  Cas.  Eq.  651;  Roe  v.  Jones,  1  H.  Bl.  33;  Roe  v.  Griffiths,  1  VV.  Bl. 
606.  This  matter  is  now  regulated  by  statute  in  New  Jersey  and  other 
States.  Wilkinson  v.  Sherman,  45  N.  J.  Eq.  413;  Morse  v.  Proper,  82 
Ga.  13;  Taylor  v.  Stewart,  45  N.  J.  352;  GrilTin  V.  Shepard,  40  Hun  355. 
This  common  law  rule,  against  the  alienation  of  remainders,  contingent, 
has  been  abolished,  in  England,  by  8  &  9  Vict.,  Ch.  lOfi,  Sec  6,  making 
all  future  and  contingent  interests  in  real  estate  alienable.  Irrespec- 
tive of  a  definite  statute  upon  the  subject,  it  is  held,  in  Missouri,  that 
the  right  of  alienation  exists.  In  Goodman  v.  Simmons  (113  Mo.  130) 
the  Supreme  Court  held :  "  This  rule  of  the  common  law  seems  incon- 
sistent with  the  general  scope  of  our  statutes  regulating  the  disposal  of 
real  estate,  and  not  in  harmony  with  the  genius  and  spirit  of  our  insti- 
tutions, which  brooks  no  restraint  upon  the  power  of  the  citizen  to 
alienate  any  of  his  property.  The  spirit  and  genius  of  the  feudal  sys- 
tem and  the  common  law  were  exactly  the  reverse.  And  we  do  not 
think  this  now  almost  obsolete  common-law  rule  ought  to  obtain  in  this 
State." 

66  1  Prest.  Est.  76-89;  4  Kent's  Com.  262;  Williams  Real  Prop. 
277;  Roe  v.  Griffiths,  1  W.  Bl.  606;  Lampet's  Case,  10  Rep.  48  a; 
Marks  v.  Marks,  1  Strange  132.  See  Van  Camp  v.  Fowler,  59  Hun 
311. 

ce  2  Washburn  on  Real  Prop.  562.  This  arose  from  the  practical  in- 
ability of  a  conveyance,  when  it  is  not  ascertained  who  is  the  remainder- 
man. But  if  a  certain  individual  made  a  conveyance  of  the  land  by  a 
warranty  deed,  and  he  subsequently  became  the  vested  remainder-man, 
his  deed  would  certainly  operate  by  way  of  an  estoppel  to  bar  him 
of  any  claim  to  the  remainder,  as  against  his  grantee.  Walton  v. 
Follansbee,  131  HI.  147;  Stewart  v.  Neely  (Pa.),  20  Atl.  Rep.  1002. 

463 


§  306  CONTINGENT   REMAINDERS.  [PART   11. 

§  306.  Classes  of  contingent  remainders. —  Contingent  re- 
mainders may  be  divided  into  two  classes,  the  distinguishing 
element  being  the  character  of  the  event,  upon  the  happening 
of  which  is  made  to  depend  the  vesting  of  the  remainder. 
The  first  class,  according  to  this  classification,  would  include 
all  those  remainders  which  are  contingent,  because  the  persons 
who  are  to  take  are  not  ascertained,  or  are  not  in  being.  Such 
would  be  remainders  to  the  heirs  of  a  living  person  or  to  an 
unborn  child.  In  the  first  case  the  remainder  is  contingent, 
because  nemo  est  hceres  viventis;  the  heirs  cannot  be  ascer- 
tained until  the  death  of  the  ancestor,  and  the  remainder  will 
become  vested  only  upon  the  death  of  that  person.  In  the 
second  case,  the  remainder  is  contingent  until  the  child  is 
born.*^  If  the  remainder  is  to  a  class,  as  to  children,  it  will 
vest  in  the  first  child  born,  subject  to  be  opened  upon  the  birth 
of  a  second  to  let  it  in,  and  so  on.  If  the  particular  estate 
terminated  after  the  birth  of  the  first,  the  remainder  would 
vest  completely  in  that  child,  free  from  the  claims  of  any 
child  born  thereafter.***  The  second  class  would  include  all 
those  remainders  which  are  made  to  vest  upon  the  happening 
of  a  collateral  event,  and  may  be  subdivided  into  those  cases, 
where  the  event  is  sure  to  happen,  but  it  is  uncertain  whether 
it  will  happen  during  the  continuance  of  the  particular  es- 
tate, and  those,  in  which  it  is  doubtful  whether  the  collateral 

67  The  first  class,  according  to  this  classification,  corresponds  to  Mr. 
Fearne's  fourth  class.  Fearne  Cont.  Rem.  9;  Richardson  v.  Wheat- 
land, 7  Mete.  169;  Moore  v.  Weaver,  16  Gray  307;  Loring  v.  Eliot,  76. 
572.  See  Harrison  v.  Jones,  82  Ga.  599;  Preston  v.  Brant,  96  Mo. 
552;  Wallace  v.  Minor  (Va.),  10  S.  E.  Rep.  423;  Taylor  v.  Adams, 
93  Mo.  App.  277.  A  purchaser  of  a  grantee  of  a  life  estate  cannot  com- 
plain because  the  court  has  failed  to  adjudge  that  the  possibility  of 
issue  was  not  extinct  in  such  grantee.  Utter  v.  Sidman,  170  Mo.  284, 
70  S.  W.  Rep.  702. 

«8  Doe  V.  Considine,  6  Wall.  477 ;  Carver  v.  Jackson,  4  Pet.  90 ; 
Olney  v.  Hull,  21  Pick.  311;  Worcester  v.  Worcester,  101  Mass.  132; 
Jennings  v.  Freyer,  4  Paige  Ch.  47;  Coursey  v.  Davis,  46  Pa.  St.  25; 
Adams  v.  Ross,  30  N".  J.  L.  513;  Swinton  v.  Legare,  2  McCord  Ch. 
257.  See  ante,  Sec.  302. 
464 


CH.   Xm.]  CONTINGENT   REMAINDERS.  §  307 

event  will  happen  at  all.  Thus  in  a  grant  to  A.  for  life,  re- 
mainder to  B.  after  the  death  of  C,  C.  is  sure  to  die,  but  it 
remains  doubtful  whether  he  will  die  during  the  life-time  of 
A.,  which  is  necessary  for  the  vesting  of  the  remainder.  An 
example  of  the  second  subdivision  would  be  a  remainder  to 
B.  upon  C.  's  return  from  Rome ;  C.  's  return  from  Rome  is  un- 
certain; he  may  die  there,  in  which  event  the  contingent  re- 
mainder will  never  vest  and  will  fail."®  To  these  may  be 
added  a  third  class,  in  which  the  event  is  not  collateral,  but 
the  happening  of  which  is  contingent,  and  not  only  causes 
the  remainder  to  vest,  but  also  constitutes  the  natural  ter- 
mination of  the  particular  estate.  For  example,  an  estate 
to  A.  until  B.  returns  from  Rome,  then  over  to  C. ;  since 
B.  may  never  return  the  remainder  is  contingent.  In  such 
cases  the  remainder  vests  only  at  the  time  when  it  is  to  take 
effect  in  possession.'^''  This  division  into  classes  has  been 
criticised  by  different  authorities,  and  has  been  declared  to 
involve  a  useless  complication  of  details,"^  and  it  may  be  that 
the  only  natural  and  necessary  division  is  that  given  by  Black- 
stone,  into  two,  viz. :  where  the  person  who  is  to  take  is 
dubious,  and  where  the  event  is  uncertain.''*  But  the  presen- 
tation of  the  minuter  subdivisions  at  least  exhibits  the  various 
possible  forms  of  contingent  Remainders  and  the  different 
contingencies  upon  which  they  may  be  made  to  depend,  and 
for  that  reason  the  above  classification  is  useful,  if  not  neces- 
sary. 

§  307.  Alienation  of  contingent  remainders. —  The  rule  of 
the  common  law,  which  prevented  the  alienation  of  a  contin- 
gent remainder,  was  changed  in  England,  by  statute  (8'&  9 

«»Mr.  Fearne  divides  these  cases  into  two  classes,  and  they  constitute 
his  second  and  third  classes.  Fearne  Cont.  Rem.  8;  VVashbtirn  on  Real 
Prop.  564,  565. 

70  2  Washburn  on  Real  Prop.  563.  This  is  Mr.  Fearne's  first  class. 
Fearne  Cont.  Rem.  5. 

Ti  4  Kent's  Com.  208. 

"2  Bla.   Com.    169. 

30  465 


§  307  CONTINGENT   REMAINDERS.  [PART   II. 

Vict.,  Chap.  106,  Sec.  6),  providing  that,  ".  .  .  A  contin- 
gent, an  executory  and  a  future  interest  and  a  possibility, 
coupled  with  an  interest  in  any  tenements  or  hereditaments, 
of  any  tenure,  .  .  .  whether  immediate  or  future  and 
whether  vested  or  contingent,  .  .  .  may  be  disposed  of  by 
deed."  And  by  statute  in  New  York,  Michigan,  Minnesota 
and  Wisconsin,  similar  provisions  have  been  adopted,  making 
all  expectant  estates  alienable,  in  the  same  manner  as  estates 
in  possession.'^  A  contingent  remainder  is  not  an  estate  in 
land  and  hence  is  not  within  statutes  providing  for  the  con- 
veyance of  any  estate  in  lands,  since  it  is  only  the  chance  of 
having  an  estate ;  ''*  but  it  is  such  an  interest  in  lands  as  to 
come  within  statutes  authorizing  the  conveyance  of  any  in- 
terest in  lands  ^^  and  even  in  some  States  where  no  express 
statutory  provision  can  be  found,  changing  the  rule  of  the 
common  law,  on  account  of  the  inconsistency  of  such  rule  with 
the  general  scope  of  the  law  regulating  the  disposal  of  real 
estate  and  the  spirit  of  American  institutions,  which  brooks 
no  restraint  upon  the  power  of  the  citizen  to  alienate  his 
property,  the  owner  of  a  contingent  remainder  is  held  to  have 
the  right  of  disposition  ^®  and  the  rule  of  the  common  law, 
against  the  alienation  of  such  remainders,  is  discarded,  as  a 
"  relic  of  the  ancient  feudal  system."  ^^     In  many  States  the 

73  2  Washburn  on  Real  Prop,  Sec.  5,  p.  267 ;  In  re  Jackson's  deed,  4 
Keys   (N.  Y.)   569,  Finch's  Sel.  Cas.  Real  Prop.  899. 

74  Godman  v.  Simmons,  113  Mo.  p.  131;  Lackland  V.  Nevins,  3  Mo. 
App.  335.  A  contingent  remainder  is  held  to  be  a  proper  subject  of 
alienation,  in  the  following  cases-.  Archer  v.  Jacobs,  125  Iowa  467,  101 
N.  W.  Rep.  195;  Dixon  v.  Bentley  (N.  J.  Ch.  1905),  59  Atl.  Rep. 
1036. 

75  Ante.  idem. 

76 "  We  are  pre-eminently  a  trading  people ;  our  lands  are  our 
greatest  stock  in  trade  and  the  whole  tendency  of  our  laws  is  to  en- 
courage, not  to  restrain  their  alienation.  The  spirit  and  genius  of  the 
feudal  system  and  the  common  law  were  exactly  the  reverse.  And 
we  do  not  think  this  now  almost  obsolete  common  law  rule  ought 
to  obtain  in  this  State."  Godman  V.  Simmons,  113  Mo.  131;  Lackland 
r.  Nevins,  supra;  Rogers  v.  Graham,  146  Mo.  352. 

77  Williams,  on  Real  Prop.  257.  A  contingent  remainder  is  the  sub- 
466 


CH.    XIII,]  CONTINGENT   REMAINDERS.  §  308 

involuntary  alienation  of  such  interests  is  now  provided  for 
by  statute  and  sales  or  partition  of  contingent  remainders  are 
authorized  by  the  courts,  to  the  same  extent  as  similar  dis- 
positions of  vested  remainders/* 

§  308.  Vested  remainder  after  a  contingent. —  Because  the 
first  of  two  or  more  remainders  is  contingent,  it  does  not 
necessarily  follow  that  the  others  must  be  contingent  also. 
The  ulterior  remainders  are  continfent  only  when  the  con- 
tingency is  made  to  apply  to  the  vesting  of  the  whole  series 
of  limitations.     But  they  may  be  so  limited  that  the  contin- 

ject  of  alienation  in  Iowa  and  Missouri.  McDonald  v.  Bank,  123 
Iowa  413,  98  N,  W.  Rep.  1025;  Hayes  v.  McReynolds,  144  Mo.  348. 
But  see  contra.  Smith's  Admr.  v.  Smith-  (Ky.  1904),  79  S.  W.  Rep. 
223.  And  when  the  grant  is  an  abuse  of  fiduciary  relation,  see,  In  re 
Phillipp's  Est.,  205  Pa.  511,  55  Atl.  Rep.  212.  It  is  held,  under  the 
Virginia  statute,  that  a  deed  of  general  assignment,  for  benefit  of 
creditors,  passes  the  grantor's  interest  in  property  held  as  a  con- 
tingent remainder.  Wilson  v.  Langhorne,  102  Va.  631,  47  S.  E.  Rep. 
871.  A  contingent  remainderman  is  held  capable  of  making  a  valid 
mortgage  on  his  interest,  in  Kentucky.  Davis  v.  Wilson,  74  S.  W.  Rep. 
696. 

'8  The  Pennsylvania  Act  of  April,  1853,  providing  for  the  sale  of  a 
decedent's  estate,  so  as  to  divest  a  contingent  remainder,  is  a  valid  exer- 
cise of  legislative  power  and  an  order  of  sale  of  the  Orphans  Court, 
made  thereunder,  divests  the  contingent  remainder.  In  re  Smith's  Est., 
207  Pa.  004,  57  Atl.  Rep.  37.  The  mere  fact  that  the  owner  of  a 
contingent  remainder  is  an  infant,  will  not  prevent  an  order  of  sale 
for  such  interest,  under  the  New  York  statute.  In  re  Asch,  78  N.  Y. 
S.  561,  75  App.  Div.  486.  A  contingent  remainder  is  the  subject  of 
partition  by  decree  of  court,  in  Missouri.  Reinders  v.  Koppleman,  68 
Mo.  501;  Preston  v.  Brandt,  96  Mo.  552;  Hayes  v.  McReynolds,  144 
Mo.  348.  See,  also.  In  re  Clement,  (N.  J.  Ch.  1904),  57  Atl.  Rep.  724; 
Brillhart  v.  Mish  (Md.  1904),  58  Atl.  Rep.  28;  Springs  V.  Scott^ 
132  N.  C.  548,  44  S.  E,  Rep.  116.  A  contingent  remainder  cannot  be 
partitioned  in  Kentucky  or  West  Virginia.  Berry  v.  Lewis,  82  S,  W. 
Rep.  252;  Croston  V.  Male,  49  S.  E.  Rep.  136.  A  contingent  re- 
mainder cannot  be  sold  at  the  suit  of  creditors  of  a  possible  remainder- 
man, in  Virginia.  Howbert  v.  Cowthorn,  42  S.  E.  Rep,  683.  Soe» 
also,  Taylor  f.  Taylor  (Iowa  1902),  92  N.  W.  Rep.  71.  A  contingent 
remainder  is  not  the  subject  of  execution  sale,  in  Tennessee.  Nichols 
V.  Guthrie,  109  Tenn.  535,  73  S.  W.  Rep,  107. 

467 


§  308  CONTINGENT  REMAINDERS.  [PART  II. 

gency  refers  only  to  the  first  remainder,  and  the  others  are 
then  vested.  The  vesting  of  a  contingent  remainder  in  such  a 
case  only  postpones  the  enjoyment  of  the  others,  and  its  fail- 
ure only  accelerates  their  time  of  enjoyment.  Thus,  where 
the  limitations  are  to  A.  for  life,  remainder  to  his  first  and 
other  sons  in  tail,  remainder  to  B.  for  life,  remainder  to  his 
first  and  other  sons  in  tail,  neither  A.  nor  B.  had  sons  at  the 
time.  The  successive  remainders  to  their  sons  in  tail  were 
contingent,  but  the  remaifider  to  B.  not  being  made  to  depend 
upon  any  contingency — riot  even  the  vesting  of  the  remainder 
to  A. 's  sons  in  tail — was  vested,  notwithstanding  the  contin- 
gency of  the  preceding  remainder.^^  And  if  the  remainder 
to  A.  's  son  in  tail  failed  to  take  effect  because  A.  had  no  son, 
the  remainder  to  B.  would  take  effect  in  possession  upon  the 
death  of  A.,  the  failure  of  the  remainder  in  tail  only  having 
the  effect  of  accelerating  the  time  of  enjoyment  by  B.  And  if 
B.  had  sons  before  A.,  the  remainder  to  them  in  like  manner 
would  at  once  become  vested,  although  the  remainder  to  A.'s 
sons  is  still  contingent.^**  There  may  be  a  vested  remainder 
after  a  contingent,  even  where  the  contingency  refers  to  a 
collateral  event  instead  of  the  birth  or  uncertainty  of  the 
person  who  is  to  take,  provided  the  vesting  of  the  subsequent 
remainder  is  not  made  to  depend  upon  the  happening  of  the 
same  contingency.  Such  was  the  case  in  the  limitation  to  A. 
for  life,  remainder  to  B.  and  C.  for  eighty  years,  if  D.  and  E., 
his  wife,  so  long  lived;  if  E.  survived  her  husband,  then  to 
her  for  life ;  and  after  her  death  to  F.  in  tail,  with  remainders 
over  in  default  of  issue.  The  remainder  to  E.  is  contingent 
upon  her  surviving  her  husband;  but  the  subsequent  re- 
mainder to  F.  in  tail,  and  the  remainders  over,  are  vested.  If 
E. 's  remainder  does  not  vest,  F. 's  remainder  will  take  effect 

T»Uvedall  v.  Uvedall,  1  Rolle  Abr,  119;  Lewis  v.  Waters,  6  East. 
336;  Wright  V.  Stephens,  4  B.  &  Aid,  574;  Sims  v.  Conger,  39  Miss. 
232. 

80  Wright  V.  Stephens,  4  B.  &  Aid.  574;    Bradford  v.  Foley,  1  Doug. 
63;  Doe  V.  Brabrant,  3  Bro.  C.  C.  393;  Sims  ».  Conger,  39  Miss.  232, 
468 


CH.    Xin.]  CONTINGENT   REMAINDERS.  §   308 

in  possession  at  the  termination  of  the  remainder  to  B.  and 
C,  the  contingency  only  postponing  or  accelerating  the  time 
for  enjoying  the  subsequent  remainders.*^ 

81  Bradford  V.  Foley.  1  Doug.  63;  Napper  v.  Sanders,  Hiitt,  117; 
Lethieullier  v.  Tracy,  3  Atk.  774;  Doe  v.  Ford,  2  E.  &  B.  970;  Fearne 
Cont.  Rem.  233;  2  Washburn  on  Real  Prop.  572.  To  the  same  effect 
see  Vandewalker  r.  Rollins,  63  N.  H.  460;  Security  Co.  f.  Hardenburgh, 
53  Conn.  169.  Mr.  Fearne  divides  the  cases  involving  these  questions 
into  three  classes  (Fearne  Cont.  Rem.  233)  ;  and  although  it  is  not 
necessary  to  the  understanding  of  the  subject,  the  classification  is  here 
given  as  a  fair  example  of  the  almost  painful  refinements  of  the 
earlier  common-law  writers  on  the  law  of  real  property,  and  it  will 
assist  one  in  learning  the  subject  of  remainders,  if  the  trouble  is 
taken  to  master  the  distinctions.  Mr.  Fearne's  first  class  consists  of 
limitations  after  a  preceding  estate,  which  is  made  to  depend  upon 
a  contingency  which  never  takes  eflfect.  The  second  class  includes  all 
cases  of  limitation  over  upon  a  conditional  determination  of  the  pre- 
ceding estate,  and  such  preceding  estate  never  takes  effect.  The  third 
class  takes  in  those  remainders,  which  are  limited  to  take  effect  upon 
the  determination  of  a  preceding  estate  by  a  contingency,  which  never 
happens,  although  the  preceding  estate  docs  take  effect.  An  example 
of  the  first  class  would  be  a  devise  to  A.  for  life,  and  after  his  decease 
remainder  to  the  use  of  his  first  and  other  sons  by  any  future  wife  in 
tail  mail ;  but  if  A.  should  marry  any  woman  related  to  his  present 
wife,  the  limitation  will  be  void,  and  the  estate  shall  go  to  the  children 
of  B.  A.  did  not  marry  a  second  time,  and  the  question  was,  did  the 
children  of  B.  take  at  the  death  of  A.  without  issue  by  a  second  mar- 
riage. It  was  held  that  the  contingency  only  affected  the  limitation 
to  A.'s  issue,  and  that  the  remainder  to  the  children  of  B.  was  vested, 
and  therefore  took  effect,  notwithstanding  the  limitation  to  A.'s  issue 
by  a  second  marriage  faikd.  Bradford  v.  Foley,  1  Doug.  63.  See  Scat- 
terwood  V.  Edge,  1  Salk.  230  n;  Doe  v.  Brabant,  3  Bro.  C.  C.  393. 
The  second  class  may  be  demonstrated  by  the  following  ca.se:  A  devise 
to  A.  for  years,  remainder  to  the  first  and  other  sons  of  B.,  in  tail 
male  successively,  provided  they  should  take  the  name  of  the  testator; 
if  they  refuse  to  do  so,  or  they  die  without  issue,  then  to  the  first- 
born son  of  C.  in  tail  male,  with  remainders  over.  B.  never  had  any 
sons.  If  the  condition,  the  performance  of  which  had  to  precede  the 
vesting  of  the  estate  in  B.'s  son.  affected  the  remainder  to  C.'a  son, 
then  the  failure  of  issue  in  B.  would  defeat  the  remainder  to  C.'s 
•^on.  But  it  was  held  that  that  was  not  the  case;  that  the  remainder 
to  C.'s  son  was  independent  of  this  contingency,  and  took  effect,  what- 
f-cr  became  of  the   remainder  to  B.'s   sons.     Scatterwood   v.  Edge,    1 

469 


§  309  CONTINGENT   REMAINDERS.  [PART  H. 

§  309.  Same  —  Such  limitations  in  wills. —  Very  little  diffi- 
culty is  experienced  in  determining  whether  the  contingency 
affects  all  of  the  successive  limitations  in  remainder,  when 
they  appear  in  a  deed.  But,  on  account  of  the  frequently  in- 
accurate and  untechnical  language  of  testators,  such  limita- 
tions in  wills  often  give  considerable  trouble  in  the  interpre- 
tation and  construction  of  them.  And  it  may  be  laid  down 
as  the  universal  rule  that  the  determination  of  these  questions 
depends  upon  what  appears  to  be  the  intention  of  the  testator 
in  respect  to  them,  as  expressed  in  his  will.  If  the  intention 
appears  to  have  been  to  extend  the  contingency  to  all  the 
limitations,  it  will  have  the  effect  of  making  them  all  con- 
tingent; otherwise  the  subsequent  remainder  will  be  vested, 
whatever  may  be  the  strict  and  literal  meaning  of  the  terms 
used.*^  Thus  a  devise  was  limited  to  the  use  of  testator's  son 
for  life,  and,  on  his  decease,  remainder  to  the  use  of  his  first 
and  other  sons  by  any  future  wife  in  tail  male ;  provided  that 
if  the  son  should  marry  any  woman  related  to  his  present  wife 
the  US3S  to  the  issue  of  such  marriage  would  be  void  and  the 
estate  go  to  the  use  of  the  children  of  H.  The  son  did  not 
marry  at  all.  There  was  no  express  direction  as  to  how  the 
estate  should  go  if  the  son  died  without  issue.  But  it  was 
held  upon  the  construction  of  the  whole  will  that  the  intention 
of  the  testator  was  that  the  children  of  H.  should  take, 
whether  the  son  married  the  objectionable  person,  or  did  not 

Salk.  230.  The  following  is  an  example  of  the  third  class;  A.  de- 
vised to  his  son  in  tail  male,  remainder  to  B.  for  life,  remainder  to 
B.'s  sons  in  tail  male,  upon  condition  that  he  should  change  his 
name,  and  upon  his  refusal,  or  the  refusal  of  any  of  his  sons  to  do  so, 
the  estate  was  to  go  to  D.  B.  performed  the  condition,  and  died  with- 
out issue.  It  was  held  that  the  performance  of  the  condition  by  B. 
defeated  the  devise  over  to  D.,  for  the  latter  limitation  was  intended 
only  to  take  effect  upon  the  breach  of  the  condition.  Amherst  v.  Lyt- 
ton,  3  Bro.  P.  C.  486.  But  see  Luxford  v.  Cheeke,  3  Lev.  125.  See  2 
Washburn  on  Real  Prop.  572-575. 

82  2  Washburn  on  Real  Prop.  573,  575;  1  Pres.  Est.  88;  Fearne  Cent. 
Hem.  235;  Luxford  v.  Cheeke,  3  Lev.  125;  Doe  V.  Shipphard,  1  Doug. 
75;   Davis  V.  Norton,  2  P.  Wms.  390. 

470 


CH.    Xm.]  CONTINGENT   REMAINDERS.  §  309 

marry  at  all.*^  The  two  following  cases  will  show  how  close 
and  refined  the  construction  can  be,  and  how  dependent  the 
construction  is  upon  the  apparent  intention  of  the  testator. 
In  the  one  case  the  devise  was  to  A.  for  a  term  of  years,  re- 
mainder to  tlie  first  and  other  sons  of  B.  in  tail  male,  provided 
they  each  should  take  the  name  of  the  testator;  but  should 
they  refuse  to  do  so,  or  should  die  without  issue,  then  over 
to  C.  's  eldest  son  in  tail  male,  with  remainders  over.  A  strict 
construction  of  this  devise  would  make  the  remainder  to  C.'s 
eldest  son  in  tail,  as  well  as  the  other  remainders  over,  con- 
tingent upon  the  refusal  of  B. 's  sons  to  take  the  testator's 
name,  and  these  remainders  could  only  vest  upon  the  happen- 
ing of  this  contingency.  But  the  court  held  that  the  contin- 
gency only  referred  to  the  remainders  to  B.'s  sons,  and  if  B. 
had  no  son  the  remainder  to  C.'s  son  would  take  effect  just 
as  well  as  if  B.  had  had  a  son,  and  the  son  had  refused  to 
perform  the  condition  annexed  to  his  estate.^*  In  the  other 
case,  the  devise  was  to  the  testator's  son  in  tail  male,  re- 
mainder to  B.  for  life,  remainder  to  B.'s  sons  in  tail  male, 
upon  condition  that  he  should  change  his  name,  and  if  he, 
or  any  sen  of  his,  should  refuse  so  to  do,  the  estate  was  to  go 
to  D.  The  testator's  son  died  without  issue.  B.  changed  his 
name  and  then  died  without  issue.  It  was  held  that  D. 's  es- 
tate was  to  vest  only  in  case  B.  or  any  of  his  sons  should  re- 
fuse to  perform  the  condition,  and  since  B.  did  change  his 
name,  the  condition  was  performed,  and  his  death  afterwards 
without  issue  defeated  the  estate  in  D.*'     This  subject  has 

83  Bradford  v.  Foley,  1  Doug.  63,  If  life  tenants  under  a  legal  life 
estate,  take  by  will,  as  remaindermen,  the  two  estates  coalesce  and  a 
merger  occurs,  in  Maryland.     Graham  v.  Whitridge,  57  Atl.  Rep.  609. 

84  Scatterwood  V.  Edge,   1  Salk.  230. 

85  Amherst  v.  Lytton,  3  Bro.  P.  C.  486.  A  parallel  case  to  the  one 
cited  in  the  preceding  note,  in  which  the  court  reached  a  contrary 
decision,  is  that  of  Luxford  v.  Cheeke,  3  Lev.  125.  In  that  case  the 
testator  devised  to  his  wife  for  life;  but  if  she  married  again,  the  es- 
tate should,  upon  her  marriage,  vest  in  his  son  H.  in  tail  male,  with 
remainders  over.  The  wife  did  not  marry  again,  and  died.  It  was 
held,  that  from  a  consideration  of  the  whole  will,  it  was  the  apparent 

471 


§  310  CONTINGENT   REMAINDERS.  [PART   11. 

received  a  more  full  and  complete  treatment  by  Mr.  Fearne 
in  his  work  ou  contingent  remainders,  but  the  explanation 
here  given  will  suffice  for  all  practical  purposes. 

§  310.  Alternate  remainders  in  fee. —  Although  it  is  a  well 
established  rule  that  a  remainder  cannot  be  limited  after  a  fee, 
yet  estates  may  be  so  limited  that  the  remainder  in  fee  shall  go 
to  one  or  the  other  of  two  persons  upon  the  happening  or  not 
happening  of  a  certain  contingency.  This  is  called  a  fee  with 
a  double  aspect.  If  the  remainder  vests  in  one  the  other  re- 
mainder is  absolutely  void,  and  the  second  vests  only  when  the 
first  fails.  Thus  a  devise  was  made  to  A.  for  life,  and  if  he 
had  issue,  then  to  such  issue  in  fee ;  but  if  he  died  without  is- 
sue, then  to  B.  in  fee.  If  A.  died  without  issue,  then  the  re- 
mainder to  B.  would  vest  and  take  effect ;  but  if  A.  died  leaving 
issue,  B.  's  remainder  would  at  once  be  defeated.  B.  's  remain- 
der is  not  made  to  take  effect  upon  the  determination  of  the  re- 
mainder to  A.  's  issue.  If  it  had  been  limited  as  to  take  effect 
in  derogation  of  the  remainder  to  A. 's  issue,  after  it  had 
vested,  it  would  have  been  void  as  a  remainder,  although  it 
would  have  been  held  good  as  an  executory  devise.  But  the 
alternate  remainders,  in  order  to  be  good,  must  both  be  con- 
tingent. The  second  is  necessarily  contingent,  and  if  the  first 
is  vested  the  second  could  only  take  effect  by  defeating  or  de- 
stroying the  first,  and  this  would  make  it  a  remainder  limited 
after  a  fee,  and  therefore  void.^** 

intention  of  the  testator  that  his  son  H.  should  take  the  estate  in 
tail,  only  in  ease  the  testator's  wife  should  marry  again,  and  since 
she  remained  a  widow,  the  remainder  in  tail  was  defeated. 

86  Luddington  v.  Kime,  9  Ld.  Raym.  203;  Goodwright  v.  Dunham, 
1  Doug.  265;  Doe  v.  Shelby,  2  B.  &  C.  920;  Doe  v.  Challis,  2  Eng. 
Law  &  Eq.  215;  Dunwoodie  v.  Reed,  3  Serg.  &  R.  452;  Taylor  c.  Taylor, 
63  Pa.  St.  481;  3  Am.  Rep.  565;  2  Wasliburn  on  Real  Prop.  575-577. 
In  Luddington  v.  Kime,  which  may  be  taken  as  a  good  example  of  the 
rule,  the  devise  was  to  A.  for  life,  remainder  to  his  male  issue  in  fee 
simple,  remainder  over  to  T.  B.,  if  A.  should  die  without  male  issue. 
These  remainders  are  alternate,  one  of  which  alone  can  vest,  and  the 
vesting  of  one  and  the  defeat  of  the  other  are  to  take  place  at  the  same 
472 


CH.    Xm.]  CONTINGENT   REMAINDERS.  §  312 

§  311.  Restrictions  upon  the  nature  of  the  contingency  — 
Its  legality . —  The  contingent  event,  upon  the  happening  of 
which  the  remainder  is  to  vest,  must  not  be  illegal,  or 
against  good  morals  (contra  honos  mores).  Thus,  if  the  re- 
mainder is  limited  to  a  bastard  not  in  being,  it  would  be 
void.  And  such  would  be  the  case  whenever  the  contingency 
involved  was  against  public  policy.  This  is  only  a  reiteration 
of  the  rule,  by  which  the  legality  of  all  conditions  to  estates 
is  tested.*^ 

§  312.  Same  —  Remoteness. —  The  event  must  not  be  too 
remote,  so  as  to  suspend  the  power  of  alienation  beyond  the 
period  allowed  by  the  policy  of  the  law.  Lord  Coke,  and 
the  law  writers  of  his  day,  laid  down  the  rule  that  the  event 
must  be  a  common  possibility,  as  it  was  called ;  and  that  if  a 
double  possibility,  or  a  possibility  upon  a  possibility,  was  in- 
volved in  the  contingency,  the  remainder  would  be  void.  A 
remainder  to  an  unborn  son,  according;  to  this  rule,  would  be 
good;  but  a  remainder  to  A.,  the  unborn  son  of  B.,  would  be 
void,  because  it  involved  a  double  possibility:  First,  that  B. 
shall  have  a  son;  and  secondly,  that  his  name  shall  be  A. 
This  rule  has  long  since  been  discarded  by  the  courts  as  mis- 
leading, and  not  at  all  consonant  with  public  policy.     Such 

time,  viz.:  at  the  death  of  A.  If  the  remainder  to  T.  B.  had  been 
limited  on  another  contingency,  and  its  vesting  was  to  take  place  at 
some  other  time,  or  if  the  limitation  to  A.'s  issue  was  vested,  instead 
of  being  contingent,  the  remainder  to  T.  B.  would  be  a  remainder 
limited  after  a  fee.  See  some  late  cases  on  this  subject  in  Appeal  of 
Reiff,  125  Pa.  St.  14.5;  Barker  f.  Southerland  (N.  Y.),  6  Dem.  Sur. 
220;  Demill  v.  Reid  (Md.),  17  Atl.  Rep.  1014;  Bockley  v.  Lemngwcll, 
R7  Conn.  163;  Mercantile  Bank  v.  Ballard,  83  Ky.  481;  Webster  r. 
Ellsworth  (Mass),  18  N.  E.  Rep.  360;  Pryor  V.  Castleman  (Ky.),  7 
S.  W.  Rep.  892;  McCormick  r.  McElligott,  127  Pa.  St.  230;  West  v. 
Reynolds,  5  N.  Y.  Supp.  942;  Thackston  v.  Watson,  84  Ky.  206  j  Al- 
bert V.  Albert,  68  Md.  352;  Myar  v.  Snow,  49  Ark.  125;  Davis  r.  Wil- 
liams, 1  Pickle,  646;  Post  r.  Van  Houten,  41  N.  J.  Eq.  82;  Cornwall  v. 
Wueff,  148  Mo.  542. 
87  2  Washburn  on  Real  Prop.  580 ;  Williams  <m  Real  Prop.  272. 

473 


§  312  CONTINGENT   REMAINDERS.  [PART  H. 

a  remainder  would  now  be  held  good."*  It  has  never  received 
general  recognition  by  the  courts,  and  it  was  even  evaded  by 
the  authors  of  it  by  the  introduction  of  vital  exceptions.  For 
example,  Lord  Coke  tells  us  that  the  contingency  of  two  per- 
sons, presently  married  to  different  persons,  marrying  each 
other,  is  only  a  common  possibility;  while  the  possibility  that 
one  shall  have  a  son  named  A.  is  double.*"  But  while  this 
rule  no  longer  prevails,  it  does  not  follow  that  a  remainder 
will  be  good,  however  remote  the  contingency  may  be.  Some 
have  held  that  the  rule  of  perpetuities,  which  prevails  in  re- 
spect to  executory  devises  and  contingent  uses,  has  been  ap- 
plied to  contingent  remainders.  But  this  statement  is  mis- 
leading, without  words  of  qualification,  and  it  has  been  held 
to  be  fallacious.®"  On  account  of  the  fact  that  a  remainder 
must  take  effect  before  the  termination  of  the  preceding  life 
estate,  the  remainder  must  take  effect  if  at  all  within  a  life  in 
being,  it  matters  not  how  many  contingencies  affect  its  vesting, 
if  the  tenant  of  the  preceding  life-estate  is  in  being,  when  the 

88  2  Washburn  on  Real  Prop.  580;  Williams  on  Real  Prop.  273,  274; 
Cholmdey's  Case,  2  Rep.  51;  Cole  v.  Sewell,  4  Dur.  &  Warr.  27;  s.  c. 
2  H.  L.  Cas.  186.  In  Routledge  v.  Dorvil,  2  Ves.  Jr.  357,  a  remainder 
was  upheld,  the  vesting  of  which  depended  upon  four  contingencies;  that 
a  husband  and  wife  should  have  a  child,  that  the  child  should  have  a 
child,  that  the  grandchild  should  be  alive  at  the  decease  of  the 
survivor  of  the  grandparents,  and  if  it  is  a  grandson,  he  should  attain 
the  age  of  twenty-one,  and  if  a  granddaughter,  she  should  attain 
that  age  or  marry.  In  Col  V.  Sewell,  supra,  Lord  St.  Leonards  (Sir 
E.  Sugden)  says:  "As  to  the  question  of  remoteness,  at  this  time 
of  day  I  was  very  much  surprised  to  hear  it  pressed  upon  the  court, 
because  it  is  now  perfectly  settled  that  where  a  limitation  is  to  take 
effect  as  a  remainder,  remoteness  is  out  of  the  question;  for  the 
given  limitation  is  either  a  vested  remainder,  and  then  it  matters  not 
whether  it  ever  vests  in  possession,  because  the  previous  estate  may  sub- 
sist for  centuries,  or  for  all  time,  or  it  is  a  contingent  remainder,  and 
then,  by  the  rule  of  law,  unless  the  event  upon  which  the  contingency 
depends  happens  so  that  the  remainder  may  vest  eo  instanti,  the  pre- 
ceding limitation  determines,  it  can  never  take  effect  at  all." 

89  Williams  on  Real  Prop.  273;  2  Rep.  51  b;   10  Rep.  50  b. 

»o  Williams  on  Real  Prop.  273 ;   Rawle's  note ;  Seaves  V.  Fitzgerald, 
141   Mass.   401;    Farnam  v.   Farnam,   53   Conn.   261. 
474 


CH.    XIII.]  CONTINGENT   REMAINDERS.  §  312 

question  is  raised.  Therefore,  following  the  rule  of  perpetu- 
ity, with  this  explanation  of  its  application  to  remainders,  we 
find  that  the  only  restriction  imposed  upon  the  limitation  of 
contingent  remainders  is  that  there  can  be  no  limitation  to 
the  unborn  child  of  an  unbora  person,  where  tlje  latter  is  to 
take  the  preceding  remainder."^  In  abolishing  the  rule  that 
there  cannot  be  a  double  possibility,  the  courts  extracted  there- 
from its  essence,  and  formulated  it  in  the  above  rule.  A 
remainder,  therefore,  may  be  made  to  depend  upon  any  num- 
ber of  contingencies,  provided  the  person  who  is  to  take  is 
not  the  unborn  child  of  an  unborn  person  in  whom  is  vested 
the  preceding  remainder.  Thus,  in  a  remainder  to  A.,  an 
unborn  son,  for  life,  remainder  to  his,  A.  's  eldest  child  in  fee, 
the  remainder  to  A.  's  unborn  child  would  be  void.  But  in  a 
limitation  to  A.,  for  life,  remainder  to  the  eldest  grandchild 
of  B.,  the  remainder  would  be  good,  although  B.  has  as  yet  no 
child,  for  the  remainder  must  vest,  if  at  all,  during  the  life 
of  A.,  and,  therefore,  not  too  remote.  This  does  not,  of 
course,  prevent  the  limitation  of  an  estate  tail  to  an  unborn 
child.  And  when  a  testator  attempts  to  give  a  life  estate  to 
an  unborn  person,  with  remainder  in  tail  to  his  children,  the 
courts,  taking  note  of  the  general  intent  to  create  an  estate 
tail,  will  ccnstrue  the  estate  to  the  unborn  person  to  be  a  free 
tail,  Instead  of  declaring  void  the  remainder  in  tail  to  his 
children.*^  But  if  such  a  limitation  appeared  in  a  deed,  this 
construction  could  not  be  upheld,  and  the  remainder  would 
be  declared  void."' 

01  Hay  V.  Coventry,  3  T.  R.  86 ;  Brudenell  v.  Elwes,  4  East  452 ; 
Fearne  Cont.  Rem.  562,  565;  Monypenny  v.  Dering,  2  De  G.  M.  & 
G.  145;  8.  c.  16  M.  &  W.  428;  Cole  v.  Sewell,  2  H.  L.  Cas.  186;  Coun- 
den  V.  Gierke,  Hob,  33  a ;  Jackson  v.  Brown,  13  Wend.  442. 

»2Doe  V.  Cooper,  1  East  234;  Den  v.  Pukey,  5  T.  R.  303;  Mony- 
penny V.  Derinj^,  16  M.  &  W.  428;  Humberston  v.  Humberston,  1  P. 
Wms.  332;  Nourse  v.  Merriam,  8  Cush.  11;  Allyn  v.  Mather,  9  Com. 
114;  Jackson  v.  Brown,  13  Wend.  437;  Daebler's  Appeal,  64  Pa.  St. 
15;  Dorr  v.  Lovering   (Mass),  18  N.  E.  Rep.  412. 

»8  2  Washburn  on  Real  Prop.  582;  Williams  on  Real  Prop.  276, 
Rawle's  note. 

475 


§  313  CONTINGENT   REMAINDERS.  [PART   II. 

§  313.  Same  —  Abridging  the  particular  estate. — A  third 
rule  in  respect  to  the  contingent  event  is  that  it  must  not 
abridge  the  particular  estate,  so  as  to  defeat  it  before  its 
natural  termination.  In  other  words,  a  remainder  cannot  be 
limited  after  an  estate  upon  condition,  to  take  effect  upon  the 
breach  of  the  condition,  even  if  the  estate  upon  condition  is 
less  than  a  fee.  Thus,  in  a  limitation  to  a  widow  for  life,  and 
if  she  should  marry  again,  then  over,  the  limitation  over 
would  be  void  if  it  appears  in  a  deed — unless  it  was  in  the 
nature  of  a  shifting  use; — and,  if  by  will,  it  could  only  take 
effect  as  an  executory  devise.  The  limitation,  in  order  to  be 
good  as  a  remainder,  should  be  to  the  widow  as  long  as  she  re- 
mains a  widow,  remainder  over.  That  is,  the  preceding  estate 
must  be  an  estate  upon  limitation,  instead  of  an  estate  upon 
condition.®*  The  only  exception  to  this  rule  is  where  the 
remainder  is  given  to  the  same  person  who  has  the  particular 
estate,  or  to  the  survivor  or  survivors  of  them.  In  such  a 
case,  the  happening  of  the  condition  and  the  consequent  vest- 
ing of  the  remainder  only  defeats  the  particular  estate  by 
causing  it  to  merge  in  the  greater  estate,  and  practically  en- 
larges it,  instead  of  defeating  it.  Thus,  an  estate  was  given 
to  a  wife  and  daughter  for  their  lives  and  the  life  of  the 
survivor,  and  if  the  daughter  had  issue,  then  to  the  daughter 
and  her  heirs  forever  after  the  death  of  the  wife ;  and  if  the 
daughter  died  without  issue,  then  to  the  wife  and  her  heirs 
forever.     These   remainders   were   held   good   in   accordance 

94  2  Washburn  on  Real  Prop.  582,  583;  1  Prest.  Est.  91;  Fearne  Cont. 
Rem.  262;  Sheffield  v.  Orrery,  3  Atk.  282;  Cogan  v.  Cogan,  Cro.  Eliz. 
360;  Proprietor's  Brattle  Eq.  Church  v.  Grant,  3  Gray,  149;  Green  V. 
Hewitt,  97  111.  113,  13  Am.  Rep.  102.  In  Indiana,  Wisconsin  and 
Minnesota,  statutes  permit  the  limitation  of  contingent  remainders, 
which,  in  vesting,  abridge  the  particular  estates  which  support  them. 
And  in  New  York,  all  conditional  limitations  are  made  legal  estates, 
and  a  limitation  to  take  effect  in  derogation  of  the  particular  estate 
is  a  legal  estate,  although  it  is  not  a  contingent  remainder.  2  Washburn 
on  Real  Prop.  694. 

476 


CH.    XIII.]  CONTINGENT   REMAINDERS.  §   315 

with  the  above  exception.^'  The  limitations  after  the  estate 
for  life  to  the  wife  and  daughter  were  alternate  remainders, 
and  not  conditional  limitations. 

§  314.  How  conting-eiit  remainders  may  be  defeated. —  As  a 
corollary  to  the  rule  that  the  contingent  remainder  must  vest 
on  or  before  the  termination  of  the  particular  estate,  by  what- 
ever means  it  is  determined,  it  follows  that  if  the  particular 
estate  is  defeated  or  destroyed  in  any  manner  before  its  nat- 
ural period  of  limitation  has  run,  the  contingent  remainder 
will  also  be  defeated,  if  it  has  not  then  become  vested.  At 
common  law  the  rule  was  applied  almost  without  limitation, 
so  that  any  destruction  of  the  particular  estate  resulted  to 
defeat  the  remainder.®* 

§  315.  Same  —  1.  By  disseisin  of  the  particular  tenant. — 
The  mere  disseisin  of  the  tenant  for  life  would  not  defeat  the 
contingent  remainder,  provided  he  has  not  been  so  far  divested 
of  his  seisin  that  he  has  lost  his  right  of  entry,  and  would  be 
forced  to  his  right  of  action  in  order  to  recover  the  seisin. 
In  such  a  case  there  would  be  no  seisin,  whether  legal  or 
actual,  present  in  the  particular  tenant  to  support  the  re- 
mainder, and  it  would  accordingly  be  defeated.  But  as  long 
as  he  has  not  lost  his  right  of  entry  he  still  retains  the  legal 
seisin,  although  deprived  of  his  actual  seisin  by  the  tortious 
possession  of  the  disseisor."^  The  common-law  distinction  be- 
tween the  right  of  entrj-  and  of  action,  and  the  law  of  descent 
cast,  resulting  in  a  loss  of  the  right  of  entry,  has  been 
abolished  in  most  of  the  States,  so  that  the  prevailing  rule  in 

»5  2  Washburn  on  Real  Prop.  583,  584;  Goodtitle  r.  Billington,  1  Doug. 
753.     But  see  Johnson   v.   Johnson,   7  Allen,    197. 

»«Doe  V.  Gatacse,  5  Bing.  N.  C.  609;  Archer's  Case,  1  Co.  66  b; 
Penhey  v.  Harrell,  2  Freem.  213;  2  Bla.  Com.  171;  2  Washburn  on  Real 
Prop.  589. 

»T  2  Washburn  on  Real  Prop.  586 ;  2  Cruise's  Dig.  245 ;  Williams  on 
Real  Prop.  280;  Fearne  Cont.  Rem.  286. 

477 


§  316  CONTINGENT   REMAINDERS.  [PART   11. 

this  country  is  that  no  disseisin  of  the  particular  tenant  will 
work  a  destruction  of  the  contingent  remainder."® 

§  316.  Same  —  2.  By  Merger. —  It  has  already  been  shown 
that  whenever  a  particular  estate  and  a  remainder  become 
united  in  one  person  at  the  same  time,  the  former  is  merged 
in  the  latter,  the  whole  becomiug  one  estate.  The  particular 
estate  is  effectually  destroyed  by  a  merger,  and  loses  its 
identity  altogether.*®  If,  therefore,  the  particular  tenant  sur- 
renders to  the  reversioner  or  ultimate  remainder-man  in  fee, 
or  if  he  acquires  the  reversion  without  a  vested  intervening 
estate,  the  intervening  contingent  remainder  will  be  defeated.^ 
This  will  happen,  whether  the  reversion  is  acquired  by  de- 
scent or  by  purchase,  except  in  one  single  case  of  descent.  If 
the  particular  estate  and  contingent  remainders  are  created 
by  a  devise,  and  the  reversion  descends  to  the  tenant  of  the 
particular  estate,  as  the  heir  of  the  testator,  no  merger  would 
result,  as  it  would  nullify  the  expressed  intention  of  the  tes- 
tator to  give  a  contingent  remainder  to  a  person  other  than 
his  heir.  But  if  the  particular  tenant,  in  the  case  of  such  a 
devise,  subsequently  acquires  the  reversion  by  purchase,  or 
by  descent  from  the  heir  of  the  testator,  a  merger  will  result 
as  in  any  other  case,  and  the  contingent  remainder  will  be 
defeated.^     The  doctrine  of  merger  has  been  held  in  Pennsyl- 

»8  2  Washburn  on  Real  Prop.  586,  note.  In  Massachusetts,  Kentucky, 
Mississippi,  Missouri,  Texas,  Virginia,  New  York,  Michigan,  Minnesota, 
and  Wisconsin,  disseisin  of  the  tenant  of  the  particular  estate  will  not 
defeat  the  contingent  remainder.  2  Washburn  on  Real  Prop.  594.  But 
see,  Archer  v.  Jacobs,  125  Iowa  467,  101  N.  W.  Rep.  195. 

89  The  union  of  the  life  estate,  vested  remainder  and  reversion  in 
a  common  grantee,  will  merge  and  destroy  a  contingent  remainder, 
limited  to  persons  who  are  not  and  may  never  be,  in  being.  Archer  V. 
Jacobs,   125  Iowa  467,   101  N.  W.  Rep.   195. 

1  Penhey  v.  Harrell,  2  Freem.  213;  Doe  v.  Gatacse,  2  Bing.  N.  C. 
609;  Archer's  Case,  1  Co.  66  b;  2  Washburn  on  Real  Prop.  589.  But 
there  will  be  no  merger  by  the  transfer  to  the  tenant  in  tail  of  the 
remainder  after  the  estate  tail.  Wiscott's  Case,  2  Rep.  61;  Roe  v. 
Baldwere,  5  T.  R.   110;   Poole  t?.  Morris,  29  Ga.  374. 

2  Fearne  Cont.  Rem.  340 ;  2  Washburn  on  Real  Prop.  589,  590 ;  Crump 

478 


CH.    Xm.]  CONTINGENT   REMAINDERS.  §  317 

vania  not  to  apply,  where  a  tenant  for  life  buys  the  ultimate 
remainder,  or  conveys  his  estate  to  such  remainder-man, 
where  there  is  an  intervening  contingent  remainder,  so  as  to 
defeat  the  contingent  remainder.^ 

§  317.  Same  —  3.  By  feoffment. —  The  contingent  remainder 
could  also  be  defeated  by  the  conveyance  of  the  tenant  by 
feoffment.  It  was  the  peculiar  rule  in  connection  with  this 
mode  of  conveyance,  that  if  the  tenant  of  a  particular  estate 
— for  example,  the  tenant  for  life — attempted  to  convey  a  fee 
or  other  greater  estate  by  feoffment,  he  lost  his  estate  and 
conveyed  nothing  to  his  feoffee.*  The  particular  estate  was 
effectually  destroyed,  and  it  would  consequently  defeat  any 
contingent  remainders  depending  upon  it.  But  this  peculiar- 
ity prevailed  only  in  the  case  of  feoffment.  If  the  conveyance 
was  in  any  other  form,  as  by  any  of  the  deeds  operating  under 
the  Statute  of  Uses,  the  grantee  would  take  only  what  estate 
the  tenant  had,  and  the  contingent  remainder  would  remain 
unaffected.'  • 

V.  Norwood,  7  Taunt.  362;  Doe  v.  Scudmore,  2  B.  &  P.  294;  Plunket 
V.  Holmes,  1  Lev.  II;  Creafield  v.  Storr,  36  Md.  129.  If  a  life  tenant 
takes  by  will,  as  a  remainderman,  a  merger  occurs,  in  Maryland. 
Graham  v.  Whitridge,  57  Atl.  Rep.  609. 

8  Stewart  v.  Neely,  139  Pa.  St.  309. 

*  See  post,  Sec.  536.  "If  it  (the  feoffment)  proposed  to  convey  a 
fee  simple,  it  created  an  actual  fee  simple  in  the  feoffee,  by  right  or  by 
wrong,  according  as  the  feoffor  was  or  was  not  seised  in  fee."  3 
Washburn  on  Real  Prop.  351. 

6  2  Washburn  on  Real  Prop.  589;  Thompson  V.  Leach,  2  Salk.  576; 
Smith  V.  Clyfford,  I  T.  R.  744;  Dennett  v.  Dennett,  40  N.  H.  498;  3 
Washburn  on  Real  Prop.  352;  Litchfield  v.  Ferguson,  141  Mass.  93.  It 
is  now  provided  by  statute  that  feoffment  shall  not  have  any  tortious 
operation.  3  Washburn  on  Real  Prop.  351;  4  Kent's  Com.  481.  There 
are  also  general  statutory  provisions  in  Massachusetts,  Kentucky, 
Mississippi,  Missouri,  Texas,  Virginia,  New  York,  Michigan,  Minnesota, 
and  Wisconsin,  which  declare  that  no  alienation  or  other  act  of  the 
tenant  of  the  particular  estate  shall  defeat  the  contingent  remainder 
before  the  happening  of  the  contingency,  on  which  the  vesting  of  the 
remainder  is  made  to  depend.    2  Washburn  on  Real  Prop.  594.  595. 

479 


§  319  CONTINGENT   REMAINDERS.  [PART   II. 

§  318.  Same. —  4.  By  entry  for  condition  broken. —  If  the 
particular  estate  is  an  estate  upon  condition,  since  a  contin- 
gent remainder  could  not  be  made  to  vest  upon  the  breach 
of  the  condition,  such  a  breach  and  the  consequent  entry 
of  the  reversioner,  he  being  the  only  one  who  could  enter, 
would  destroy  the  particular  estate,  and  therewith  the  re- 
mainder dependent  upon  it." 

§  319.  Tmstees  to  preserve —  To  remove  the  great  danger 
of  destruction  bj'  the  act  of  the  particular  tenant,  to  which 
contingent  remainders  were  exposed,  a  very  ingenious  method 
was  devised  by  Sir  Geoffrey  Palmer  and  Sir  Orlando  Bridg- 
man,  whereby  the  contingent  remainder  was  fully  protected 
from  the  effect  of  a  destruction  of  a  particular  estate  before 
its  natural  termination.  It  was  by  interposing  between  the 
particular  estate  and  the  contingent  remainder — a  vested  re- 
mainder to  trustees,  as  it  was  called,  *'to  preserve  contingent 
remainders."  For  example,  the  limitations  would  be  to  A. 
for  life,  remainder  during  the  life  of  A.  to  trustees  to  pre- 
serve contingent  remainders,  remainder  to  the  heirs  of  B.  If, 
by  any  act  of  his,  A.'s  estate  is  destroyed,  whether  it  be  by 
desseisin,  merger,  feoffment,  or  the  breach  of  a  condition  at- 
tached to  his  estate,  the  vested  remainder  to  the  trustees  will 
take  effect  in  possession.  And  since  their  estate  is  a  trust,  they 
cannot  in  any  way  defeat  it;  it  continues  to  exist  under  all 
circumstances,  until  the  period  of  its  natural  limitation  has 
expired.'  In  England,  and  generally  in  the  States  of  this 
country,  statutes  have  been  passed  preventing  the  destruction 
of  the  contingent  remainder  by  the  determination  of  the  par- 
ticular estate  in  any  other  mode,  except  the  expiration  of  the 
period  of  natural  limitation.     "Wherever  there  are  such  stat- 

oCogan  V.  Cogan,  Cro.  Eliz.  360;  Sheffield  v.  Orrery,  3  Atk.  282; 
Proprietors  Brattle  Sq.  Church  v.  Grant,  3  Gray,  149 ;  Williams  v. 
AngpII,  7  R.  I.  152;  Archer  v.  Jacobs,  125  Iowa,  467,  101  N.  W.  Rep. 
195. 

7  2  Washburn  on  Real  Prop.  500;  2  Bla.  Com.  171;  Fearne  Cont.  Rem. 
325;  Williams  on  Real  Prop.  283,  284. 
480 


CH.    XIII.]  CONTINGENT   REMAINDERS.  §  320 

utes  it  is  not  necessary  to  interpose  a  remainder  to  trustees; 
but  in  times  past  it  was  a  very  essential  precaution,  and 
was  generally  employed. 

§  320.  Actions  by  remainder-men. —  The  relation  of  the  ten- 
ant of  tho  particular  estate  and  that  of  the  remainder-man  has 
already  been  discussed  and  it  has  been  shown  that  there  are 
reciprocal  rights  and  duties  owing  to  each  and  that  each  has 
certain  rights,  as  regards  the  preservation  and  enjoyment  of 
his  interest,  that  the  other  is  bound  to  respect.^  Since  the  re- 
mainder-man has  no  right  to  possession  of  the  estate  during 
the  continuance  of  the  particular  estate,  he  is  not,  generally, 
entitled  to  sue  for  any  injury  to  the  possession  of  the  tenant 
of  the  preceding  estate,  but  for  all  injuries  to  the  possession 
or  other  acts  that  would  not  amount  to  an  injury  to  the  in- 
heritance the  tenant  and  not  the  remainder-man,  is  the  proper 
person  to  sue.®  Where,  however,  the  acts  of  the  life  tenant 
or  those  of  a  third  person  are  such  as  result  in  damage  to 
the  inheritance,  as  where  the  inheritance  is  injured  by  waste, 
whenever  the  interest  of  the  remainder-man  is  so  far  vested 
as  that  it  could  be  legally  regarded  as  an  estate  in  the  land, 
then  the  remainder-man  and  not  the  tenant,  is  a  proper  person 
to  maintain  the  action  for  such  injuries.^" 

»Ante  Sec.  300.  ' 

» A»  action  of  ejectment  cannot  be  maintained  by  a  remainderman, 
during  the  life  of  the  life  tenant.  Laster  v.  Blackwell,  133  Ala.  337, 
32  So.  Rep.  166.  A  remainderman  cannot  sue  in  trespass,  for  any  in- 
jury to  the  possession,  until  termination  of  the  life  estate.  Bottorff 
V.   Lewis    (Iowa   1903),,  95  N.   W.  Rep.  262. 

10  Where  the  inheritance  is  injured  by  waste,  the  remainderman  and 
not  the  life  tenant  should  sue  for  such  waste.  Learned  v.  Ogden,  80 
Miss.  769,  32  So.  Rep.  278.  Life  tenant  held  entitled  to  recover  for 
injury,  by  waste,  to  inheritance,  in  New  York,  Dix  v.  Jaguay,  88  N.  Y. 
S.  228,  94  App.  Div.  554.  Although  the  common  law  did  not  recog- 
nize a  right  of  action  by  a  contingent  remainderman,  equity  will  grant 
an  injunction,  even  though  there  are  mesne  remaindermen.  Palmer  v. 
Young,  108  111.  App.  262. 

SI  481 


SECTION  III. 

ESTATES   WITHIN    THE   RULE    IN   SHELLEY 'S    CASE. 

Section    321. —  Origin  and  nature  of  the  rule. 
322. —  Requisites  of  the  rule. 

§  321.  Origin  and  nature  of  the  rule. —  It  has  long  been  a 
rule  of  the  common  law,  that  if  an  estate  for  life,  or  any 
other  particular  estate  of  freehold,  be  given  to  one  with  re- 
mainder to  his  heirs,  the  first  taker  shall  be  held  to  have  the 
fee,  and  the  heirs  will  take  by  descent  and  not  by  purchase. 
The  first  taker  is  thereby  enabled  to  make  a  free  disposition 
of  the  estate  in  fee,  and  the  heirs  take  by  descent,  only  when 
no  disposition  has  been  made  of  it  by  the  first  taker.  The  rule 
was  first  given  an  authoritative  utterance  in  Shelley's  Case, 
decided  in  the  time  of  Lord  Coke,  and  hence  it  is  called  "the 
rule  in  Shelley's  Case."  Although  called  "the  rule  in  Shel- 
ley's Case,"  it  was  then  an  ancient  rule  of  the  common  law." 

11  Shelley's  Case,  1  Rep.  94 ;  2  Washburn  on  Real  Prop.  597 ;  Williams 
on  Real  Prop.  253.  In  Perrine  v.  Blake,  4  Burr.  2579,  Mr.  Justice 
Blaekstone  refers  to  a  case  decided  in  the  reign  of  Edw.  II  ( 18  Edw. 
II  fol.  577),  in  which  he  thinks  the  rule  was  first  laid  down.  Mr. 
Rawle  in  his  note  (Williams  on  Real  Prop.  255,  note  1),  calls  the 
reader's  attention  to  the  fact  that  the  validity  of  the  rule  was  not 
brought  into  question  in  Shelley's  Case,  but  it  was  there  for  the  first 
time  stated  so  clearly  that  it  has  been  given  the  name  of  the  rule  in 
Shelley's  Case.  In  Indiana,  where  the  rule  in  Shelley's  Case  is  said 
"  to  be  too  well  settled  to  admit  of  controversy,"  the  rule  is  stated 
thus :  "  Where  a  freehold  is  limited  to  one  for  life,  and  by  the  same 
instrument,  the  inheritance  is  limited,  either  mediately  or  immediately, 
to  heirs,  or  heirs  of  his  body,  the  first  taker  takes  the  whole  estate, 
either  in  fee-simple,  or  fee-tail ;  and  the  word  '  heirs,'  or  *  heirs  of 
his  body '  are  words  of  limitation  and  not  of  purchase."  Taney  V. 
Fahnley,  126  Ind.  88;  Finch's  Sel.  Cas.  Prop,  in  Land  519;  Shimer 
V.  Mann,  99  Ind.  190.  "  The  rule  in  Shelley's  Case  is,  that  if  an  ea- 
482 


CH.  xin.]  EULE  IN  Shelley's  case.  §  321 

Blackstone  refers  it  to  a  case  which  was  tried  in  the  18  Edw. 
II.  It  is  not  definitely  known  what  are  the  precise  reasons 
for  establisliing  such  an  arbitrary  rule.  Some  have  held  that 
it  was  to  prevent  the  loss  of  the  lord's  wardships  by  per- 
mitting the  heirs  to  take  as  purchasers;  while  others  have 
thought  it  arose  from  the  general  prevalence  of  the  custom 
to  construe  the  word  "heirs,"  in  instruments  of  conveyance 
as  a  word  of  limitation  instead  of  purchase.  ^^  Perhaps  the 
best  reason  is  to  be  found  in  the  fact  that,  at  the  time  when 
the  rule  was  first  established,  a  contingent  remainder  was  an 
impossible  limitation,  the  remainder  to  the  heirs  being  contin- 
gent until  the  death  of  the  ancestor,  and  the  rule  was  de- 
vised, in  order  to  give  effect  to  the  intent  of  the  grantor,  as 
nearly  as  possible."  But  whatever  may  have  been  the  rea- 
son it  is  a  well  established  rule,  and  prevails  wherever  it  is 
not  abolished  by  statute.^*     But  in  some  of  the  States  at  the 

tate  for  life,  or  any  other  particular  estate  of  freehold,  be  given  to 
one,  with  remainder  to  his  heirs,  the  first  taken  shall  be  held  to  have 
the  fee,  and  the  heirs  will  take  by  descent  and  not  by  purchase." 
Lacey  v.  Floyd  (Tex.  1905),  84  S.  W.  Rep.  587,  87  idem  665. 

12  2  Washburn  on  Real  Prop.  697;  Williams  on  Real  Prop.  254;  1 
Prest.  Est.  306. 

13  This  is  the  suggestion  of  the  author,  based  upon  the  opinion  of 
Mr.  Williams,  in  which  the  author  concurs,  that  at  an  early  day  con- 
tingent remainders  were  not  recognized  as  valid  legal  limitations.  See, 
ante,  Sec.  305;  Williams  on  Real  Prop.  263.  A  remainder  to  the 
heirs  of  the  tenant  for  life  would  be  a  contingent  remainder,  unless  it 
was  made  under  the  rule  in  Shelley's  Case  to  enlarge  the  estate  of  the 
first  taker  into  a  fee. 

1*  The  rule  has  been  generally  recognized  by  the  courts  of  this  coun- 
try, and  it  still  prevails  in  perhaps  most  of  the  States.  Georg  v. 
Morgan,  16  Pa.  St.  95;  Kleppner  v.  Laverty,  70  Pa.  St.  73;  James' 
Claim,  1  Dall.  47;  Tillinghast  v.  Coggeshall,  7  R.  I.  383;  Lyles  v. 
Digge,  6  Harr.  &  J.  364;  Chilton  v.  Henderson,  9  Gill,  432;  Roy  v. 
Garnett,  2  Wash.  (Va.)  9;  Smith  v.  Chapman,  1  Hen.  &  M.  240; 
Davidson  v.  Davidson,  1  Hawks,  163;  Hull  v.  Reals,  23  Ind.  28;  Baker 
V.  Scott,  62  111.  86;  Taney  v.  Fahnley,  126  Ind.  88;  Conn.  Mut.  Life 
Ins.  Co.  V.  Skinner,  4  Ohio  C.  C.  526;  Carson  v.  Fuhs,  131  Pa.  St. 
256;  Van  Olinda  v.  Carpenter  (111.),  19  N.  E.  Rep.  868;  Hageman  v. 
Hageman,  129  111.  164.     See  Boykin  v.  Ancrum,  26  S.  C.  486;  Leathers 

483 


§  321  RULE  IN  Shelley's  case.  [part  il 

V.  Gray,  101  N.  C.  162;  Andrews  v.  Lothrop  (R.  I.),  20  Atl.  Rep.  97; 
Spader  r.  Powers.  56  Hun  153;  Wilkerson  v.  Clark  (Ga.),  7  S.  E.  Rep. 
319;  Leathers  v.  Gray  (N.  C),  7  S.  E.  Rep.  657;  Ryan  v.  Allen,  120 
111.  643;  Allen  i'.  Crafts,  109  Ind.  476;  Cockin's  Appeal,  111  Pa.  St. 
26.  The  rule  is  still  enforced  in  North  Carolina  (Morrisett  v.  Stevens, 
136  N.  C.  160,  48  S.  E.  Rep.  661)  ;  Texas  (Lacey  v.  Floyd,  84  S.  W.  Rep. 
857,  87  lb.  665)  ;  South  Carolina  (Davenport  v.  Eskew,  69  S.  C.  292,  48 
S.  E.  Rep.  223)  ;  Tennessee  (Bingham  v.  Weller,  81  S.  W.  Rep.  843)  ; 
Illinois  (Doenier  v.  Kessinger,  206  111.  57,  69  N.  E.  Rep.  28)  ;  Ne- 
braska (Albin  V.  Parmele,  98  N.  W.  Rep.  29,  646)  and  Pennsylvania 
(Shapley  v.  Diehl,  203  Pa.  566,  53  Atl.  Rep.  374).  In  Hillman  r. 
Bouslagh,  13  Pa.  St.  344,  Chief  Justice  Gibson,  in  an  able  opinion, 
gives  the  rule  a  most  earnest  support,  and  defends  the  policy  of  re- 
taining it  as  a  part  of  the  American  law  of  real  property.  "  The  rule 
in  Shelley's  Case,"  says  he,  "  ill  deserves  the  epithets  bestowed  on  it  in 
the  argument.  Though  of  feudal  origin,  it  is  not  a  relic  of  barbarism, 
or  a  part  of  the  rubbish  of  the  dark  ages.  It  is  part  of  a  system; 
an  artificial  one,  it  is  true,  but  still  a  system,  and  a  complete  one. 
.  .  .  It  happily  falls  in  with  the  current  of  our  policy.  By  turning  a 
limitation  for  life,  with  remainder  to  tlie  licirs  of  the  body, 
into  an  estate  tail,  it  is  the  handmaid  not  only  of  Taltarum's  Case," 
(in  this  case  estates  tail  were  held  for  the  first  time  to  be  barred  by 
a  common  recovery.  See  ante.  Sec.  42),  "but  of  our  statute  for  bar- 
ring entails  by  a  deed  acknowledged  in  court,  and  where  the  limitation 
is  to  heirs  general  it  cuts  off  what  would  otherwise  be  a  contingent 
remainder,  destructible  only  by  a  common  recovery.  .  .  .  It  is  ad- 
mitted that  the  rule  subverts  a  particular  intention  in  perhaps  every 
instance;  for,  as  was  said  in  Roe  v.  Bedford,  4  Maul  &  Sel.  363,  it  is 
proof  against  even  an  express  declaration,  that  the  heirs  shall  take  as 
purchasers.  But  it  is  an  intention  which  the  law  cannot  indulge,  con- 
sistently with  the  testator's  general  plan,  and  which  is  necessarily  sub- 
ordinate to  it.  It  is  an  intention  to  create  an  inalienable  estate  tail 
in  the  first  donee,  and  to  invert  the  rule  of  interpretation,  by  making 
the  general  intention  subservient  to  the  particular  one.  The  donor  is 
no  more  competent  to  make  a  tenancy  for  life  a  source  of  inheritable 
succession  than  he  is  competent  to  create  a  perpetuity,  or  a  new  canon 
of  descent.  The  rule  is  too  intimately  connected  with  the  doctrine  of 
estates  to  be  separated  from  it  without  breaking  the  ligaments  of 
property."  The  learned  judge  is  wrong,  when  he  says  that  the  general 
rule  of  the  law  of  interpretation  and  construction  does  not  require 
the  general  intention  to  be  subservient  to  the  particular  one.  In  the 
construction  of  wills,  in  which  this  conflict  between  a  general  and  a 
particular  intent  usually  arises,  the  general  intention  only  controls 
the  particular  when  the  latter  is  inoperative  on  account  of  its  illegality 
or    impossibility    of    performance    and    the    general    intent    is    carried 

484 


CH.  XIII.]  RULE  IN  Shelley's  case.  §  321 

present  time,  the  rule  has  been  abolished  by  statute,  and 
the  limitation  to  the  heirs  would  be  construed  to  be  a  con- 
tingent remainder,  the  heirs  taking  by  purchase.^'* 

out  under  the  cy  pres  doctrine  to  prevent  a  complete  failure  of  the 
gift.  If  it  be  true  that  the  rule  in  Shelley's  Case  arose  from  an  in- 
ability, according  to  the  early  law,  to  create  a  contingent  remainder, 
and  this  is  certainly  more  plausible  than  to  suppose  that  the  courts 
would  arbitrarily  nullify  the  expressed  intention  of  the  donor,  for  that 
would  be  an  assumption  by  the  courts  of  legislative  powers,  then  since 
contingent  remainders  are  now  valid  limitations,  the  particular  intent 
of  the  donor  should  be  allowed  to  take  effect.  If  it  is  against  the 
policy  of  the  law  to  permit  the  creation  of  contingent  remainders,  then 
they  should  be  abolished  by  statute.  The  courts  have  no  legitimate 
power  to  effect  the  change  by  any  such  arbitrary  and  absurd  rule  of 
construction,  as  the  rule  in  Shelley's  Case. 

15  The  rule  has  been  abolished  by  statute  in  Maine,  Massachusetts, 
Connecticut,  New  York,  Missouri,  Michigan,  Tennessee,  Virginia,  Ken- 
tucky, Alabama,  Wisconsin,  California,  Dakota,  Minnesota  Mississippi 
and  West  Virginia,  2  Washburn  on  Real  Prop.  GOT,  note  2;  Kirchwey, 
Head,  on  Real  Prop.  357;  Williams  on  Real  Prop.  260,  Rawle's  note.  In 
these  States  the  rule  has  been  abolished  altogether,  both  as  to  grants  and 
to  wills.  Richardson  v.  Wheatland,  7  Mete.  172;  Bowers  v.  Porter,  4 
Pick.  205;  Moore  v.  Littell,  40  Barb.  488;  Williamson  V.  Williamson.  18 
B.  Mon.  329;  Montgomery  v.  Montgomery  (Ky.),  II  S.  W.  Rep.  596; 
Gaukler  V.  Moran,  66  Mich.  353;  McCauley  V.  Buckner,  87  Ky.  191? 
Wedekind  l'.  Hallerbcrg  (Ky.),  10  S.  W.  Rep.  308;  Leake  f.  Watson 
(Conn.),  21  Atl.  Rep.  1075.  The  rule  has  been  abolished  only  as  to 
wills,  in  Kansas,  New  Hampshire,  New  Jersey,  Ohio,  and  Oregon. 
Kirchwey,  Read,  on  Real  Prop.  357 ;  2  Washburn  on  Real  Prop.  607,  note 
2;  Dennett  V.  Dennett,  40  N.  H.  500;  Den  v.  Demarest,  I  N.  J.  525; 
Choutman  V.  Bailey,  62  N.  H.  44.  In  Mississippi  it  is  abolished  as  to 
real  estate.  Powell  v.  Brandon,  24  Miss.  343.  And  in  Rhode  Island 
it  is  declared  by  statute  not  to  apply  to  devises,  in  which  the  property 
is  limited  to  one  for  life  and  remainder  to  the  children  or  issue  of  the 
devisee  for  life.  Williams  v.  Angell,  7  R.  I.  145;  In  re  Willis  Will,  25 
R.  S.  332,  55  Atl.  Rep.  889.  But  the  rule  still  holds  good  in  all  grants 
and  devises  in  which  the  limitation  in  remainder  is  to  the  heirs  gen- 
erally, or  to  the  heirs  of  the  body  of  the  first  taker.  Bullock  V.  Water- 
man St.  Soc,  5  R.  I.  273;  Moore  v.  Dimond,  lb.  127;  Manchester  v. 
Durfee,  lb.  549;  Cooper  v.  Cooper,  6  R.  I.  264;  Tillinghast  v.  Cog- 
geshall,  7  R-  I.  333;  McNeal  v.  Sherwood,  53  Atl.  Rep.  43.  In  Moore 
f.  Littell,  41  N.  Y.  66,  which  was  affirmed  in  House  v.  Jackson,  50  N. 
Y.  165,  it  was  declared  by  the  New  York  Court  of  Appeals,  that  after 
the  abolition  by  statute  of  the  rule  in  Shelley's  Case,  the  limitation  to 

485 


§  322  RULE  IN  Shelley's  case.  [part  ii. 

§  322.  Requisites  of  the  rule. —  In  order  that  the  rule  in 
Shelley's  Case  may  apply,  there  must  be  a  freehold  in  the 
first  taker,  limited  expressly  or  by  implication.  An  estate 
less  than  a  freehold  would  not  be  sufficient,  because  a  seisin 
in  the  first  taker  is  necessary  to  draw  the  remainder  to  the 
particular  estate."    But  if  the  limitations  appear  in  a  will, 

the  heirs  of  the  donee  for  life  is  a  vested  remainder.  This  remarkable 
decision  is  altogether  inconsistent  with  the  rules  of  law  of  remainders, 
and  even  with  the  New  York  statutory  definition  of  a  contingent  re- 
mainder, viz. :  that  they  are  contingent  "  whilst  the  person  to  whom, 
or  the  event  upon  which  they  are  limited  to  take  effect  remains  un- 
certain." 1  Rev.  Stat.,  p.  723;  Sec.  13;  McCall  on  Real  Prop.  113, 
Prof.  McCall,  in  referring  to  the  case  of  Moore  v.  Littell,  says;  "Thus 
a  grant  to  A.  for  life,  and  after  his  death  to  his  heirs  and  assigns  for- 
ever, gives  the  children  of  A,  a  vested  interest  in  the  land;  although 
liable  to  open  and  let  in  after  born  children  of  A.,  and  also  liable,  in 
respect  of  the  interest  of  any  child,  to  be  wholly  defeated  by  his  death 
before  his  father."  Query,  if  there  are  no  born  children,  in  whom  is 
the  remainder  vested?  the  collateral  heirs?  The  true  doctrine  is  that 
such  a  remainder  is  contingent,  nemo  est  hceres  viventis,  and  this  Is  the 
rule  of  the  other  courts.  Richardson  V.  Wheatland,  7  Mete.  169; 
Moore  v.  Weaver,  16  Gray,  307;  Williams  V,  Angell,  8  R.  I.  145;  Hill- 
man  t".  Bouslaugh,  13  Pa.  St.  344. 

i«Pibus  V.  Mitford,  1  Ventr.  372;  Webster  v.  Cooper,  14  How.  500; 
Ogden's  App.,  70  Pa.  St.  509;  Williams  on  Real  Prop.  256;  2  Washburn 
on  Real  Prop.  598,  601.  The  rule  in  Shelley's  Case  applies  to  equitable 
estates  as  well  as  to  legal  estates,  where  the  trusts  are  executed.  Crox- 
all  V.  Shererd,  5  Wall.  281;  Tillinghast  v.  Coggeshall,  7  R.  I.  383.  If 
they  are  executory,  as  they  usually  are  in  marriage  settlements,  or  if 
it  is  the  clear  intention  of  the  donor  that  the  tenant  for  life  shall  not 
have  the  power  to  cut  oflf  the  estate  in  remainder,  the  rule  will  not 
apply.  2  Washburn  on  Real  Prop.  495;  Sand.  Uses,  311;  ones  V.  Laugh- 
ton,  1  Eq.  Cas.  Abr.  392;  Gill  v.  Logan,  11  B.  Mon.  231;  Berry  v. 
Williamson,  11  B.  Mon.  245.  The  rule  is  applied  to  executed  trusts 
with  this  qualification,  that  the  two  estates,  the  freehold  in  possession 
and  the  remainder,  must  both  be  legal  or  both  equitable.  The  rule  will 
not  apply  where  one  is  legal  and  the  other  is  equitable.  Sylvester  V. 
Wilson,  2  T.  R.  444;  Adams  v.  Adams,  6  Q.  B.  860;  Doe  v.  Ironmonger, 
3  East  533;  Curtis  V.  Rice,  12  Ves.  89;  Croxall  V.  Shererd,  5  Wall. 
281;  Ward  v.  Armory,  1  Curt.  419;  Tallman  V.  Wood,  26  Wend.  9. 
But  if  both  are  legal  it  will  not  prevent  the  rule  from  applying  if 
one  of  them  is  charged  with  a  trust  and  the  other  is  an  absolute  estate. 
486 


CH.  XIII.]  RULE  IN  Shelley's  case.  §  322 

while  a  remainder  can  be  limited  in  chattel  interests,  the  rule 
in  Shelley's  Case  has  been  held,  nevertheless,  to  apply,  so  as  to 
give  the  absolute  estate  to  the  first  taker.^^  It  must,  in  the 
second  place,  be  created  by  the  same  instrument  as  is  the 
remainder  to  the  heirs.  If  given  by  different  instruments 
the  rule  will  not  apply.'*  But  a  will  and  an  annexed  codicil 
are  in  this  connection  considered  as  constituting  one  instru- 
ment, and  the  rule  would  apply  if  the  life  estate  was  given  in 
the  will  proper,  and  the  reversion  in  the  codicil.  So  also 
would  the  rule  apply  if,  instead  of  a  grant  of  a  remainder, 
there  appeared  in  the  same  instrument  a  power  of  appoint- 
ment to  the  heirs."  In  the  next  place,  the  subsequent  limi- 
tation must  be  made  to  the  heirs  of  the  first  taker.  If  the 
remainder  is  limited  to  the  heirs  of  a  stranger,  or  if  it  is 
limited  to  the  joint  heirs  of  two  persons,  one  of  whom  alone 
takes  the  estate  in  possession,  the  rule  does  not  apply,  and 
the  subsequent  limitation  remains  a  contingent  remainder  in 
the  heirs,  as  purchasers.-"'     If  the  limitation  be  to  the  heirs  of 

Tud.  Ld.  Cas.  484;  Douglass  v.  Congreve,  1  Beav.  59;  s.  c.  4  Bing.  N. 
C.    1. 

17  Hughes  V.  Nicholas,  70  Md.  484.  In  Rhode  Island,  the  rule  in 
Shelley's  Case  is  held  applicable  to  personalty,  by  analogy,  if  no  con- 
trary intent  appears.  Evans  v.  Weatherhead,  24  R.  I.  502,  53  Atl. 
Rep.  866. 

18  2  Washburn  on  Real  Prop.  598;  Co.  Lit.  299  b,  Butler's  note,  201; 
Doe  V.  Fonnerneau,  i  Dougl.  509;   Moore  v.  Parker,   1  Ld.  Raym.  37;' 
Webster  v.  Cooper,  14  How.  500;  Adams  v.  Guerard,  29  Ga.  675.     See, 
also,  Taney  v.  Tahnley,  126  Ind.  88;  Finch's  Sel.  Cas.  Prop,  in  Land  519. 

i»  Williams  on  Real  Prop.  256;  2  Washburn  on  Real  Prop.  598;  Hayes 
V.  Forde,  2  W.  Bl.  698 ;  Tud.  Ld.  Cas.  483,  484 ;  Co.  Lit.  299  b,  Butler's 
note  261 ;  Tillinghast  v.  Coggeshall,  7  R.  I.  383.  But  wliere  a  power 
of  appointment  is  interposed  between  an  estate  for  life  and  a  con- 
tingent remainder  to  one's  children  or  to  special  heirs,  the  rule  does  not 
apply,  and  the  children  or  special  heirs  take  as  purchasers,  although 
the  interposition  of  the  power  would  not  prevent  the  application  of  the 
rule,  where  the  remainder  was  limited  to  the  heirs  generally.  Dodson 
t;.  Ball,  60  Pa.  St.  497 ;  Yarnall's  App.,  70  Pa.  St.  342. 

no  Archer's  Case,  1  Co.  66  b;  Fuller  v.  Chamicr,  L.  R.  Eq.  682; 
Webster  r.  Cooper,  14  How.  500;  2  Washburn  on  Real  Prop.  599;  Wil- 
liams on  Real  Prop.  261. 

487 


§  322  RULE  IN  Shelley's  case.  [part  il 

his  body,  the  first  taker  would  have  an  estate  tail  instead  of  a 
fee.**  But  if  the  limitation  be  to  one's  heir  and  the  heirs 
male  of  the  heir,  the  rule  is  not  applicable,  the  express  limita- 
tion in  tail  preventing  an  amalgamation  of  the  two  estates.^^ 
The  rule  cannot  apply  where  the  life  estate  is  an  equitable 
estate,  and  the  remainder  is  a  legal  estate.^''  But,  with  these 
exceptions,  nothing  that  the  grantor  can  do  will  prevent  the 
application  of  the  rule  if  the  remainder  in  fee  or  in  tail  is 
given  to  the  heirs  of  the  first  taker — not  even  an  express  di- 
rection that  the  rule  should  not  apply.^*  But  limitation  to 
the  sons,  children,  or  issue  of  him  who  takes  the  life  estate, 
will  not  be  converted  by  the  rule  into  a  fee  in  the  first  taker, 
unless  they  are  created  by  will,  and  from  a  consideration  of 
the  whole  will,  it  appears  that  these  words  were  used  in  the 
sense  of  heirs.  And  the  strongest  and  clearest  evidence  is 
necessary  to  give  this  construction  to  the  words  sons  or  chil- 

21  Pibua  V.  Mitford,  1  Ventr.  372;  Hillman  v.  Boiislagh,  13  Pa.  St 
351;  Toller  v.  Atwood,  15  Q.  B.  929;  Doe  v.  Harvey,  4  B.  &  C.  610. 

22Tud.  Ld.  Cas.  493;  McCullough  v.  Gliddon,  38  Ala.  208. 

28  Rife  V.  Geyer,  59  Pa.  St,  393;  Mayer's  Appeal,  49  Pa.  St.  Ill; 
Reading  Trust  Co.'s  Appeal,  26  W.  N.  C.  9;  Handy  v.  McKim,  64 
Md.   560. 

24Perrin  v.  Blake,  1  W.  Bl.  672;  s.  c,  4  Burr.  2579;  Roe  v.  Bedford, 
4  Mauel  &  Sel.  363;  Toller  V.  Atwood,  15  Q.  B.  929;  Doe  v.  Harvey, 
4  B.  &  C.  610;  Jesson  v.  Doe,  2  Bligh,  1;  Doebler's  App.,  64  Pa.  St. 
15;  Klappner  v.  Laverty,  70  Pa.  St.  73;  Tud.  Ld.  Cas.  488,  489;  2 
Washburn  on  Real  Prop.  602 ;  Stone  V.  MeEckron,  57  Conn.  194 ;  Appeal 
of  Keim,  125  Pa.  St.  480;  Reading  Trust  Co.'s  Appeal,  26  W.  N.  C-  9; 
Little's  Appeal,  117  Pa.  St.  14;  Bassett  V.  Hawk,  118  Pa.  St.  94;  Hen- 
derson V.  Walthour  (Pa.),  15  Atl.  Rep.  893;  Huntzelman's  Appeal,  136 
Pa.  St.  142;  Earnhart  v.  Earnhart,  127  Ind.  396;  Giffin's  Estate,  138 
Pa.  St.  327.  But  see  contra,  Bedford  v.  Jenkins,  96  N.  C.  254;  Fields 
c.  Watson,  23  S.  C.  42.  In  Belslay  V.  Engel  (107  111.  186),  it  is  said: 
"the  rule  is,  at  most,  a  technical  rule  of  construction  and  has  always, 
since  the  decision  in  Perrin  v.  Blake  (4  Burr.  257),  given  way  to  the 
clear  intention  of  the  testator,  or  donor,  when  that  intention  could 
be  ascertained  from  the  instrument."  See,  also,  Lacey  v.  Floyd  (Tex. 
1905),  84  S.  W.  Rep.  857,  87  idem  665. 


488 


CH.  xin.]  RULE  IN  Shelley's  case.  §  322 

dren.^^  It  is  easier  to  apply  this  construction  to  the  word 
issue.  The  general  rule  is  that  persons  thus  described  take 
as  purchasers  and  not  by  descent,  and  that  the  remainders  are 
vested  as  soon  as  persons  corresponding  to  the  description 
come  into  being. ^^  It  has  been  held  also  that  where  the  limi- 
tation in  remainder  is  to  the  "bodily  heirs"  of  the  first  taker, 
the  rule  will  not  apply  if  the  contents  of  the  will  shows  that 
those  were  used  in  the  sense  of  children. ^^  The  rule  will  also 
apply,  even  though  there  are  intervening  limitations  to  stran- 
gers. But  the  fee  in  remainder  would  vest  in  the  first  taker 
expectant  upon  the  termination  of  the  intermediate  limitation. 
The  intermediate  limitation  is  not  destroyed  by  merger  of  the 
estate  in  possession  and  the  remainder,  under  the  operation  of 
the  rule  in  Shelley's  Case.^ 

25  See  Greer  v.  Pate,  85  Ga.  552;  Jackson  v.  Jackson  (Ind.),  26  N. 
E.  Rep.  897. 

26  Poole  V.  Poole,  3  Bos.  &  P.  620;  Slater  v.  Dangerfield,  15  M.  & 
W.  263;  Doe  v.  Daviess,  4  B.  &  Ad.  43;  Shaw  v.  Weigh,  Strange.  798; 
Bobinson  v.  Robinson,  1  Burr.  38;  Lees  t".  Mosley,  1  Younge  &  C. 
589;  Doe  v.  Charlton,  1  M.  &  G.  429;  Doe  t\  Collis,  4  T.  R.  299;  Flint 
V.  Steadman,  36  Vt.  210;  Adams  v.  Ross,  30  N.  J.  L.  512,  overruling 
Ross  V.  Adams,  28  N.  J.  L.  172;  Taylor  v.  Taylor,  63  Pa.  St.  483,  3 
Am.  Rep.  565;  Webster  V.  Cooper,  14  How.  500;  Ford  t'.  Flint,  40  Vt. 
394;  Sinton  V.  Boyd,  19  Ohio  St.  30,  2  Am.  Rep.  369;  People's  Sav. 
Bank  v.  Denig,  131  Pa.  St.  241;  Foster  r.  McKenna  (Pa.),  11  Atl.  Rep. 
674;  McDonald  v.  Dunbar  (Pa.),  12  Atl.  Rep.  553;  McCanley  V. 
Buckner  (Ky),  8  S.  W.  Rep.  196;  Boykin  r.  Ancrum  (S.  C.),  6  S.  E. 
Rep.  305;  Handy  v.  McKim,  64  Md.  .506;  Carroll  f.  Burns,  108  Pa.  St. 
286;  Henderson  v.  Henderson,  64  Md.  185. 

27  Mitchell  V.  Simpson    (Ky.),  10  S.  W.  Rep.  372. 

28  2  Washburn  on  Real  Prop.  601;  Williams  on  Real  Prop.  256-260: 
Frank  v.  Frank  (Pa.),  17  Atl.  Rep.  11.  But  see  apparently  contra, 
Hadlock  v.  Gray,   104  Ind.   596. 

489 


CHAPTER  XIV. 

USES  AND  TRUSTS. 

Section      I.  Uses  before  the  Statute  of  Uses. 
II.  Uses  under  the  Statute  of  Uses. 

III.  Shifting,  Springing  and  Contingent  Uses. 

IV.  Trusts. 

SECTION  I. 

USES  BEFORE  THE  STATUTE  OF  USES. 

Section    323.  Pre-statcment. 

324.  Origin  and  history. 

325.  What  is  a  use. 

326.  Enforcement  of  the  use. 

327.  Distinction  between  Uses  and  Trusts. 

328.  How  uses   may   be   created. 

329.  Same  —  Resulting  use. 

330.  Same  —  By  simple  declarations. 

331.  Who  might  be  feoffees  to  use  and  cestuis  que  use. 

332.  What  might  be  conveyed  to  uses. 

333.  Incidents  of  uses. 

334.  Alienation  of  uses. 

335.  Estates  capable  of  being  created  in  uses. 

336.  Disposition  of  uses  by  will. 

337.  How  lost  or  defeated. 

§  323.  Pre-statement. —  The  reader  has  been  prepared,  by 
the  classification  of  estates  presented  in  a  previous  chapter,^ 
for  the  discussion  of  interests  and  estates  in  lands,  which  are 
purely  equitable ;  that  is,  cognizable  solely  in  a  court  of  equity, 
and  separate  and  distinct  from  the  legal  estate,  which  is  alone 
recognized  in  a  court  of  law.  Equitable  mortgages  and  liens 
constitute  one  class  of  such  interests,  which  have  been  already 

iSee  ante.  Sec.  26. 
490 


OH.   XIV.  USES   BEFORE   THE   STATUTE   OF    USES.  §   324 

considered.^  The  class  of  equitable  interests,  which  are  more 
properly  comprehended  under  the  term  estate,  is  what  is 
known  as  Uses  and  Trusts. 

§  324.  Origin  and  history. —  It  is  not  proposed  to  give  in 
detail  the  history  of  the  origin  and  introduction  into  the  Eng- 
lish jurisprudence  of  Uses  and  Trusts,  but  a  few  words  are 
necessary  as  explanatory  of  their  character.  At  common  law 
the  only  mode  of  conveying  lands  was  by  transmutation  of 
possession.  This  element  was  a  necessary  ingredient  of  every 
conveyance,  for  a  common-law  title  was  inseparable  from  the 
right  of  possession.  The  power  of  alienation  was  also  very 
much  restricted.  It  could  only  be  done  with  the  consent  of 
the  lord,  and  even  after  these  restrictions  upon  conveyancing 
were  removed,  the  inability  to  dispose  of  lands  by  will,  the 
cumbersome  character  of  the  common-law  conveyances,  and 
the  burdens  attached  as  incidents  to  a  legal  estate,  such  as  the 
rights  of  dower  and  curtesy,  the  possibility  of  escheat  and 
forfeiture  for  attainder  of  treason  or  corruption  of  blood,  and 
the  innumerable  fines  and  reliefs  required  by  the  fuedal  law 
of  tenure  to  be  paid  to  the  lord,  led  to  the  introduction  of  Uses 
and  Trusts,  which  relieved  the  beneficial  owner  of  all  these 
burdens,  and  gave  him  an  almost  absolute  property  in  the 
lands.  A  further  impetus  was  given  to  their  general  adoption 
by  the  prohibitions  imposed  by  the  magna  charta  and  the  stat- 
ute of  mortmain  upon  the  ecclesiastical  corporations  to  hold 
and  acquire  lands.  These  statutes,  recognizing  and  relating 
solely  to  legal  estates,  only  prevented  such  corporations  from 
holding  legal  estates.  The  ecclesiastics,  with  their  customary 
astuteness,  had  the  lands  conveyed  to  persons  who  could  take 
and  hold  them  in  trust,  to  permit  the  corporations  to  enjoy  the 
benefit  thereof.  It  may  be  doubtful  whether  the  ecclesiastics 
were  the  first  to  adopt  this  mode  of  holding  lands,  but* to 
them  certainly  may  be  ascribed  the  honor  of  devising  the 
means  for  the  enforcement  of  the  confidence  reposed  in  the 

2  See  ante,  Sees.  213,  220. 

491 


§  325        USES  BEFORE  THE  STATUTE  OP  USES.    [PART  11. 

person,  to  whom  the  land  was  conveyed.  Finally  the  civil 
wars  between  the  houses  of  Lancaster  and  York,  and  the  in- 
creased danger  of  attainder  and  confiscation  of  estates,  result- 
ing from  participation  in  these  wars  upon  one  side  or  the 
other,  caused  a  large  portion  of  the  lands  of  England  to  be 
settled  in  this  manner.*  It  is  supposed,  with  good  reason 
therefor,  that  the  doctrine  of  uses  and  trusts  was  derived 
from  the  civil  or  Roman  law,  and  corresponds,  in  some  re- 
spects, to  what  is  known  in  that  system  of  jurisprudence  as 
the  fidei  commissum.* 

§  325.  What  is  a  use?  —  A  use  or  trust  is  a  confidence, 
which  acquired  under  the  operation  of  the  rules  of  equity  the 
character  of  an  estate,  reposed  in  the  person  holding  the  legal 
estate,  who  is  known  as  the  feoffee  to  use  or  trustee,  that  he 
shall  permit  the  person  designated  in  the  conveyance  to  the 
feoffee  to  use  or  by  the  legal  owner,  and  who  is  called  the  cestui 
que  use  or  trust,  to  enjoy  the  rents  and  profits  of  the  land. 
The  use  or  trust  is  the  beneficial  interest  in  and  issuing  out  of 
the  land,  while  the  legal  title  remained  in  the  person  who  was 
seised  to  the  use.^     In  a  court  of  law  he  was  deemed  the 

8  2  Washburn  on  Real  Prop.  384-386 ;  1  Spence  Eq.  Jiir.,  439-442 ;  Cluid- 
leigh's  Case,   3  Rep.   123;   2  Pomeroy  Eq.  Jur.,  Sec.  978. 

•*  2  Washburn  on  Real  Prop.  38(5;  Bae.  Law  Tracts  315;  Cornish,  Uses, 
10.  The  fidei  commissum  of  the  Roman  law,  however,  could  only  be 
created  by  will,  and  was  designed  to  give  the  beneficial  interest  in  prop- 
erty to  those  who  were  otherwise  prohibited  from  taking  as  .devisee. 
The  testator  would  direct  the  heir  to  transfer  the  estate  to  the  person 
designated.  This  trust  was  then  enforced  by  the  courts.  It  is,  there- 
fore, more  proper  to  say  that  the  fidei  commissum  suggested  the  use, 
and  the  mode  of  enforcing  it,  than  that  the  use  is  derived  from  the 
Roman  law.  Saunder's  Justinian,  337,  338;  2  Pomeroy  Eq.  Jur.,  Sees. 
976,  977. 

'■2  Washburn  on  Real  Prop.  388;  2  Bla.  Com.  330;  Bac.  Law  Tracts 
307;  Co.  Lit.  271  b,  Butler's  note,  231,  Sec.  2;  2  Pomeroy  Eq.  Jur., 
Sees.  978,  979;  1  Spence  Eq.  Jur.  439-444;  Burgess  v.  Wheate,  1  W. 
Bl.  1.58 ;  Tud.  Ld.  Cas.  252,  253.  "  An  use  is  a  trust  or  confidence, 
which  is  not  issuing  out  of  land,  but  as  a  thing  collateral,  annexed  in 
privity  to  the  estate,  and  to  the  person,  touching  the  land,  scil.  that 
'  492 


CH.    XIV.]  USES   BEFORE   THE   STATUTE   OF   USES.  §  326 

owner,  brought  all  the  actions  for  the  protection  of  the  prop- 
erty against  trespass,  waste  and  disseisin,  and  exercised  gen- 
erally the  legal  rights  of  an  owner.^  He  could  even  maintain 
an  action  of  ejectment  against  tlie  cestui  que  use.''  The  rights 
of  the  cestui  que  use  were  not  recognized  in  a  court  of  law. 
He  has  no  standing  in  that  court,  and  only  obtained  an 
ample  remedy  for  the  protection  of  his  estate  when  the  court 
of  chancery  assumed  jurisdiction.* 

§  326.  Enforcement  of  the  nse. —  Before  the  English  court 
of  chancery  acquired  jurisdiction,  the  cestui  que  use  was  com- 
pelled to  rely  upon  the  good  faith  of  the  feoffee  to  use,  al- 
though there  is  supposed  to  have  been  an  inefficient  remedy  in 
the  spiritual  or  ecclesiastical  courts.  But  since  these  courts 
had  no  means  of  enforcing  their  decrees,  and  exerted  only  a 
spiritual  influence  over  the  conscience,  the  cestui  que  use  was 
practically  dependent  upon  the  honesty  of  his  feoffee  to  use." 
The  ecclesiastics  were,  of  course,  greatly  concerned  in  pro- 
viding a  sufficient  remedy  for  their  protection  and  the  en- 
forcement of  their  uses.  The  court  of  chancery  was  at  that 
time  entirely  under  their  control,  for  the  chancellor  and  other 
judges  of  the  court  were  almost  always  appointed  from  the 
clergy.     And   being   learned   in  the  civil  law,  they  readily 

cestui  que  use  shall  take  the  profits,  and  that  the  tertenant  shall  make 
estates,  according  to  his  direction.  So  that  he  who  hath  an  use  hath 
not  jus  neque  in  re,  neque  ad  rem,  but  only  a  confidence  and  trust,  for 
which  he  hath  no  remedy,  by  the  common  law,  but  his  remedy  was 
only  by  subpoena  in  chancery."  Co.  Rep.  121,  Kirchwey,  Read,  in  Law, 
Real  Prop.   140. 

«Tud.  Ld.  Cas.  252;  2  Bla.  Com.  330;  1  Spence  Eq,  Jur.  442;  Chud- 
leigh's  Case,  1  Rep.  121;  2  Pomeroy  Eq.  Jur.  Sec.  979;  2  Washburn  on 
Real  Prop.  388. 

^  1  Spence  Eq.  Jur.  442 ;  Tud.  Ld.  Cas.  253 ;  Cudleigh's  Case,  1  Rep. 
121. 

8  1  Spence  Eq.  Jur.  456;  Co.  Lit.  271  b,  Butler's  note,  231,  Sec. 
2;  Pom.  Ep.  Jur,,  Sees.  979,  980;  Tud.  Ld.  Cas,  252;  Lewin  on  Tr.  3, 
4;  Co.  Rep.  121. 

»  1  Spence  Eq.  Jur.  444;  Tud.  Ld.  Cas.  252;  Bac.  Law  Tracts  307. 

493 


§  327        USES  BEFORE  THE  STATUTE  OP  USES.      [PART  U. 

found  a  precedent  in  the  enforcement  of  the  fidei  commissa  ^^ 
of  that  system  of  jurisprudence.  "With  this  precedent  before 
him,  John  De  Waltham,  Bishop  of  Salisbury,  Master  of  the 
Rolls,  devised  the  "writ  of  subpoena,"  returnable  in  chancery, 
and  directed  against  the  feoffee  to  use,  by  which  he  was  made 
to  account  under  oath  to  the  cestui  que  use  for  the  rents  and 
profits  he  had  received  from  the  land."  This  writ  could  at 
first  be  issued  against  the  feoffee  to  use,  but  not  against  his 
heirs  and  assigns,  Subsequently  it  was  made  issuable  against 
the  heirs  and  all  alienees  of  the  feoffee,  who  took  with  notice 
of  the  use.^'*  The  court  of  chancery  then  for  the  first  time  ac- 
quired complete  jurisdiction  over  uses  and  trusts.  From  that 
time  forward,  in  the  exercise  of  that  jurisdiction,  a  set  of 
rules  has  been  established  for  their  interpretation  and  con- 
struction, which  gave  to  them,  as  nearly  as  it  was  possible  or 
advisable,  the  character  and  incidents  of  legal  estates.^' 

§  327.  Distinction  between  uses  and  trusts. —  Although  the 
words  uses  and  trusts  were  employed  before  the  passage  of  the 
Statute  of  Uses,  as  if  they  were  synonymous;  and  although 
they  may  be  used  interchangeably  when  speaking  generally 
of  these  equitable  estates,  as  they  then  prevailed,  yet  a  dis- 
tinction was  made  between  them  according  to  the  permanent 
or  temporary  character  of  the  estate.  If  the  right  to  the 
rents  and  profits  was  permanent — that  is,  of  a  long  duration 
— it  was  called  a  u»e.  If  the  right  was  only  of  a  temporary 
character,  or  given  only  for  special  purposes,  it  was  desig- 

10  1  Spence  Eq.  Jur.  436;  Bac.  Law  Tracts  31.5;  Digley,  Hist.  Real 
Prop.,  Chap.  VI;  Kirchwey,  Read,  in  Law  Real  Prop.  146. 

11  1  Spence  Eq.  Jur.  438;  2  Washburn  on  Real  Prop.  389;  1  Pom.  Eq. 
Jur.,   Sees.  428-431. 

12  1  Spence  Eq.  Jur.  445;  2  Washburn  on  Real  Prop.  380;  2  Bla.  Com. 
329;  Burgess  v.  Wheate,  1  W.  Bl.  156,  2  Pom.  Eq.  Jur.  Sec.  980. 

13  2  Washburn  on  Real  Prop.  392;  1  Cruise  Dig.  341 ;  1  Spence  Eq. 
Jur.  435;  2  Bla.  Com.  331;  Digley,  Hist.  Real  Prop.,  Chap.  VI;  2 
Pollock  &  Maitland's  Hist.  Eng.  Law  226. 

494 


CH.    XIV.]  USES   BEFORE   THE  STATUTE   OF   USES.  §  329 

nated  a  trust}*^  A  more  radical  difference  now  exists  in  the 
present  use  of  these  terms,  arising  out  of  the  change  made  in 
equitable  estates  by  the  Statute  of  Uses. 

§  328.  How  uses  may  be  created  —  By  feoffment.-^  Since  at 
common  law  the  ordinary  conveyance  was  feoffment  with 
livery  of  seisin,  operating  by  transmutation  of  possession  and 
requiring  no  evidence  in  writing  of  such  conveyance,  a  use 
might  have  been  created  before  the  Statute  of  Frauds,  when 
employing  this  mode  of  conveyance,  by  a  simple  declaration  of 
the  feoffor  at  the  time  that  the  feoffee  was  to  hold  to  the  use 
of  some  other  person."  The  Statute  of  Frauds,  however,  re- 
quires uses  and  trusts  as  well  as  legal  estates  to  be  evidenced 
by  some  writing  signed  by  the  party  to  be  charged.  At  the 
present  day,  therefore,  an  oral  declaration  will  not  be  suffi- 
cient to  raise  a  use.^" 

§  329.  Same  —  Resulting  use. —  As  a  consequence  of  the 
introduction  of  uses,  if  one  makes  a  conveyance  in  fee  with- 
out receiving  any  good  or  valuable  consideration,  equity,  pre- 
suming that  one  will  not  part  with  a  valuable  estate  without 
receiving  in  return  a  consideration,  held  that  the  beneficial  or 
equitable  interest  remained  in  or  resulted  to  the  grantor.  He 
was  supposed  to  have  intended  that  the  use  should  be  re- 
served to  himself.  This  was  called  a  resulting  use.  It  be- 
came, therefore,  a  general  rule  that  a  conveyance  of  the  legal 
estate  in  fee,  without  a  consideration,  will  not  carry  with  it 
the  beneficial  interest  unless  the  facts  of  the  case  were  such  as 
to  rebut  the  presumption  that  the  feoffor  did  not  intend  to 
part  with  the  beneficial  interest.*'    But  where  the  estate  eon- 

14  2  Washburn  on  Real  Prop.  398 ;  1  Cruise  Dig.  246 ;  Tud.  Ld.  Cas. 
255;  San.  Uses,  3,  7;   1  Spence  Eq.  Jur.  448. 

15  1  Spence  Eq.  Jur.  449 ;  2  Washburn  on  Real  Prop.  392 ;  2  Bla.  Com. 
331. 

i«  Stat.  29  Car.  ii,  c.  3,  Sees.  7,  8;  2  Washburn  on  Real  Prop.  500,  501 ; 
Saund.  Uses  229;  Tud.  Ld.  Cas.  266. 
17  3  Washburn  on  Real  Prop.  393 ;  1  Spence  Eq.  Jur.  451 ;  2  Bla.  Com. 

495 


§  329        USES  BEFORE  THE  STATUTE  OF  USES.    [PART  II, 

veyed  was  less  than  a  fee,  there  was  no  resulting  use,  as  the 
duties  and  liabilities  attached  to  an  estate  for  life,  for  years 
and  in  tail,  were  considered  a  sufficient  consideration  to  pre- 
vent the  use  resulting  to  the  grantor  and,  also,  because  the 
retention  of  a  part  of  the  estate  negatives  the  presumption 
that  he  did  not  intend  to  part  with  the  beneficial  interest  in 
the  part  which  he  did  convey.^**  The  use  can  result  only  to 
the  grantor  and  his  heirs.'®  And  for  the  purpose  of  carrying 
the  use  to  the  feoffee,  the  smallest  nominal  consideration  was 
sufficient.  It  need  not  be  stated  in  the  deed  if  an  actual  con- 
sideration had  passed  between  the  parties;  on  the  other  hand, 
if  there  is  an  acknowledgment  of  the  receipt  of  the  considera- 
tion in  the  deed  of  conveyance,  there  need  be  no  actual  con- 
sideration, since  the  parties  to  the  deed  will  be  estopped  from 
denying  it.-"  Nor  is  a  consideration  necessary  where  the 
deed  expressly  declares  to  whose  use  the  land  shall  be  held. 
But  if  only  a  part  of  the  use  is  declared  by  the  deed,  the 
remainder  would  result  to  the  grantor,  in  the  same  manner 
as  if  no  use  had  been  limited,  unless  the  use  declared  is  limited 

331;  Lloyd  v.  Spillett,  2  Atk.  150;  2  Pom.  Eq.  Jur.,  Sec.  981;  Osbora 
V.  Osborn,  26  N.  J.  Eq.  385.  "  Two  kinds  of  consideration  alone  were 
regarded  as  affording  a  sufficient  motive;  these  were  blood  and  money. 
.  .  .  If  no  proper  evidence  of  either  of  these  motives  existed,  the 
beneficial  interest  resulted,  or  came  back  to  the  donor."  Digby  Hist. 
Real  Prop.,  Ch.  6;  Kirchwey,  Read,  in  Law  Real  Prop.  153;  Sugd.  Gilb. 
Uses,  p.  125  et  sub. 

18  1  Prest.  Est.  192;  1  Cruise  Dig.  376;  1  Spence  Eq.  Jur.  452;  2 
Washburn  Real  Prop.  396;  Tud.  Ld.  Cas.  258. 

19  2  Washburn  on  Real  Prop.  393,  394;  1  Prest.  Est.  195;  1  Cruise 
Dig.  373. 

20  1  Spence  Eq.  Jur.  450,  451;  2  Bla.  Com.  329;  Tud.  Ld.  Cas.  255; 
Lewin  on  Tr.  27 ;  Squire  v.  Harder,  1  Paige  494 ;  Bk.  of  U.  S.  v.  House- 
man, 6  Paige  526;  Titcomb  V.  Morrill,  10  Allen  15;  1  Greenl.  on  Ev., 
Sec.  26;  Griswold  v.  Messenger,  6  Pick.  517;  Bragg  v.  Geddes,  93  111.  39; 
Bartlett  v.  Bartlett,  14  Gray  277;  Gerry  t;.  Stimpson,  60  Me.  186;  Wilt 
V.  Franklin,  1  Binn.  518;  Boyd  V.  McLean,  1  Johns.  Ch.  582;  Farrington 
V.  Barr,  36  N.  H.  86;  Maigly  V.  Hauer,  7  Johns.  341;  Shepherd  v. 
Little,  14  Johns.  210;  2  Washburn  on  Real  Prop.  394;  Gould  v.  Linde, 
114  Mass.  366;  Graves  V.  Graves,  29  N.  H.  129;  Cairns  V.  Colburn,  104 
Mass.  274. 

496 


CH.    XIV.]  USES   BEFORE   THE   STATUTE   OF   USES.  §  330 

to  the  grantor,  when  the  remainder  will  be  in  the  feoffee.-' 
Where,  however,  the  use  in  remainder  is  limited  by  will,  and 
there  is  no  disposition  of  the  use  during  the  life  of  the  trustee, 
particularly  where  the  trustee  is  the  wife  or  other  near  rela- 
tive of  the  testator,  a  use  is  held  to  be  limited  by  implication 
in  the  trustee  for  his  or  her  life.'*"  The  doctrine  of  resulting 
uses  has  been  abolished  by  statute  in  some  of  the  States. 

§  330.  Same  —  By  simple  declarations. —  Not  only  could 
uses  be  raised  by  a  declaration  to  that  effect,  made  in  con- 
nection with  a  feoffment  or  other  common-law  conveyance, 
as  above  explained,  but  also  by  a  simple  declaration  made  by 
the  legal  owner  that  he  held  the  land  to  the  use  of  another,^''' 
But  since  a  court  of  equity  lends  its  aid  only  to  the  prevention 
of  an  injury  or  wrong  (injuria),  and  will  not  enforce  mere 
voluntary  obligations,  these  declarations,  when  made  inde- 
pendently of  a  common-law  conveyance,  had  to  rest  upon  a 
consideration,  in  order  that  they  might  be  enf;)rced.  If  the 
declaration  was  made  to  a  stranger,  a  valuable  consideration 
was  required,  but  it  need  not  be  a  substantial  one;  while  in 
the  case  of  a  declaration  to  a  near  blood-relation,  a  good  con- 
sideration, natural  love  and  affection,  would  answer.^*    And 

21 1  Spence  Eq.  Jur.  449,  511;  2  Bla.  Com.  329;  Lloyd  v.  Spillett,  2 
Atk.  68;  Lampleigh  V.  Lampleiph,  1  P.  Wms.  112;  St.  John  r.  IJoncdict, 
23  a;  Tud.  Ld.  Cas.  258;  1  Prest.  Est.  191,  195;  Pibua  v.  Mitford,  1 
Ventr.  372;  Tipping  v.  Cozzens,  1  Ld.  Raym.  33;  Volgen  v.  Yates,  5 
Seld.  223;  Farrington  v.  Barr,  36  N.  H.  88;  Sir  Edw.  Clerc's  Case,  6 
Rep.  17;  Kenniston  v.  Leighton,  53  N.  H.  311;  Graves  V.  Graves,  9 
Post.  129;  Sprague  V.  Woods,  4  Watts  &  S.  192;  Walker  v.  Walker,  2 
Atk.  68;  Lampleigh  V.  Lampleigh,  1  P.  Wms.  112;  St.  John  f.  Benedict, 
6  JohnE.  Ch.  116;  Capen  v.  Richardson,  7  Gray  370;  Althara  v.  An- 
glesea,  11  Mod.  210;  Boyd  v.  McLean,  1  Johns.  Ch.  582;  Peabody  v. 
Tarbell,  2  Gush.  232;  Adams  v.  Savage,  2  Salk.  679;  Rawley  r.  Hol- 
land, 2  Eq.  Cas,  Abr.  753;  1  Cruise  Dig.  376;  Roe  v.  Popham,  Dougl. 
(Mich.)  25;  McCown  v.  King,  23  S.  C.  232;  Gove  v.  Learoyd,  140 
Mass.  524. 

22  Fisher  v.  Fisher,  41  N.  J.  Eq.  16. 

23  See  post,  Sec.  373. 

24  2  Bla.  Com.  329;  Co.  Lit.  271b,  Butler's  note  231;  Tud.  lA.  Cas. 
268;   I  Spenc-e  Eq.  Jur.  450;  2  Washburn  on  Real  Prop.  394,  :J95. 

32  497 


§  331        USES  BEFORE  THE  STATUTE  OF  USES.     [PART  II. 

under  this  rule  equity  always  construed  a  contract  of  sale  or 
agreement  to  convey  as  a  declaration  to  use,  and  would  en- 
force it,  if  the  requisite  consideration  was  present.^^  The 
Statute  of  Frauds  now  requires  all  such  declarations  to  be 
proved  by  some  instrument  in  writing.^' 

§  331.  Who  might  be  feoffees  to  use  and  cestuis  que  nse.— 
As  a  general  proposition,  all  persons  who  could  be  grantees  in 
a  common-law  conveyance  can  be  either  feoffees  to  use  or 
cestuis  que  use,  infants  and  married  women  not  excepted. 
The  married  woman,  as  feoffee  to  use,  would  hold  the  legal 
estate  free  from  any  attaching  rights  of  her  husband,  and, 
as  cestuis  que  use,  enjoy  the  beneficial  interest  as  freely  as  if 
she  were  single.  Her  husband  acquires  no  rights  in  the 
equitable  estate,  since  they  attach  and  relate  to  only  legal 
estates.^^  Corporations  can  be  cestuis  que  use.^^  It  wtis 
formerly  held  that  corporations  could  not  be  feoffees  to  use, 
it  being  supposed  impossible  to  enforce  the  performance  of  the 
use,  on  account  of  the  intangible,  soulless  character  of  the  cor- 
poration. That  doctrine  has  now  been  exploded,  and  courts 
of  equity  can  enforce  their  decrees  just  as  effectively  against 
corporations  as  against  natural  persons.  It  is,  therefore,  the 
prevailing  rule  in  this  country  that  corporations  may  hold 
lands  as  feoffees  to  use,  provided  the  limitations  of  their  char- 
ters do  not  make  such  a  conveyance  foreign  to  the  purposes  of 
their  creation.^® 

2B  2  Washburn  on  Real  Prop.  397 ;   1  Spence  Eq.  Jiir.  452,  453. 

26  See  post,  Sec.  374. 

27  Tud.  Ld.  Cas.  254 ;  4  Kent's  Com.  293 ;  Egerton  V.  Brownlow,  4  H. 
L.  Cas.  206;  Saund.  Uses  349;  Hill,  Trust.  52;  Pinson  v.  Ivey,  1  Yerg. 
325;  Springer  v.  Berry,  48  Me.  338;  Claussen  v.  La  Franz,  1  Iowa  237; 
2  Washburn  on  Real  Prop.  391,  392;  1  Cruise  Dig.  340.  It  is  here  meant 
that  the  husband's  rights  during  coverture  do  not  attach  to  the  wife's 
equitable  estate.  But  he  has  curtesy  in  such  estates,  unless  expressly 
excluded.     See  ante,  Sec.  79. 

28  Cruise  Dig.  354;  2  Washb.  on  Real  Prop.  391;  Tud.  Ld.  Cas.  254. 
20  Ang.  &  Ames  on  Corp.,  Ch.  2,  Sees.  6-8 ;  2  Washburn  on  Real  Prop. 

391;  Vidal  v.  Girard,  2  How.  127;  Sutton  v.  Cole,  3  Pick.  232;  Phil- 
498 


CH.    XIV.]  USES   BEFORE   THE   STATUTE   OF   USES.  §  333 

§  332.  What  miglit  be  conveyed  to  uses. —  Every  species  of 
real  pspperty,  which  is  comprehended  under  the  terms  lands, 
tenements  and  hereditaments,  both  corporeal  and  incorporeal, 
may  be  the  subject  of  conveyance  to  uses.^"  At  an  early 
period  it  was  held  necessary  for  the  grantor  to  be  possessed  of 
an  estate  of  which  seisin  could  be  predicated,  in  order  that  a 
use  might  be  created  out  of  it."  But  this  doctrine  has  long 
since  been  abandoned,  and  chattels,  both  real  and  personal, 
can  now  be  settled  to  uses.  But  since  a  mortgage  is  treated 
in  equity  as  a  lien,  instead  of  an  estate  in  lands,  there  can 
be  no  conveyance  of  it  to  uses,  i.  e.,  independently  of  the  debt. 
The  debt  may  be  conveyed  to  uses,  and  the  mortgage  would 
follow  as  an  incident  of  the  debt.^" 

§  333.  Incidents  of  uses. —  As  uses,  considered  as  estates 
in  lands,  were  the  mere  creatures  of  equity,  and  acquired  in 
the  early  days  of  their  existence  no  actual  recognition  in  a 
court  of  law,  the  court  of  chancery,  in  establishing  rules  for 
the  government  and  construction  of  tliem,  while  following  to 
some  extent  the  analogies  of  the  law  in  relation  to  legal  es- 
tates, adopted  only  such  rules  of  the  common  law  as  were 
consistent  with  the  intended  character  of  this  equitable  estate- 
It,  therefore,  discarded  the  doctrines  of  feudal  tenure  and 
seisin  altogether.  Nor  did  the  court  at  first  recognize  in  uses 
the  rights  of  dower  and  curtesy.  Uses  were  also  held  to  be 
not  liable  to  levy  and  sale  under  execution ;  nor  were  they  for- 
feited to  the  crown  upon  attainder  until  the  statute  of  33  Hen. 

lip's  Academy  r.  King,  12  Mass.  540.  "  The  feoffee  to  uses  must  be  an 
individual  capable  of  the  conscientious  obligation.  Hence,  a  body  cor- 
porate is  incapable  of  holding  to  the  use  of  any  one.  Nor  were  aliens,, 
or  persons  attainted,  or  the  king,  capable  of  holding  to  a  use."  Digby 
Hist.  Real  Prop.,  Ch.  6;  Kirchwey,  Read,  in  Law  Real  Prop.  151. 

■«"2  Washburn  on  Real  Prop.  391;  2  Bla.  Com.  331. 

81  2  Bla.  Com.  331;   1  Cruise  Dig.  340;  Tud.  Ld.  Cas.  259. 

32  2  Washburn  on  Real  Prop.  408;  Merrill  v.  Brown^  12  Pick.  220. 


499 


§  335        USES  BEFORE  THE  STATUTE  OF  USES.    [PART  II. 

VIII,  ch.  20,  Sec.  2.'''     But  they  were  descendible  to  the  heirs, 
in  conformity  with  the  common  law  of  descents.'*         '* 

§  334.  Alienation  of  uses. —  For  the  same  reasons,  the  re- 
strictions imposed  upon  the  common-law  power  of  alienation 
were  not  applied  to  uses.  There  is  no  limitation  upon  the 
alienation  of  uses,  except  that  imposed  by  the  Statute  of 
Frauds.  Before  the  passage  of  that  statute  no  formal  assign- 
ment in  writing  was  required ;  a  simple  direction  to  the  trus- 
tee to  pay  over  the  rents  and  profits  to  the  assignee  was 
sufficient.  These  directions  the  trustee  was  bound  to  follow, 
and  obedience  could  be  enforced  in  like  manner  as  in  the 
case  of  the  original  cestui  que  use.^^  But  the  assignment  of 
the  use  necessarily  had  no  effect  upon  the  legal  estate  in  the 
trustee,  unless  he  joined  in  the  conveyance.^^  And  then  the 
formalities  required  in  all  common-law  conveyances  must  have 
been  complied  with  in  order  to  pass  the  legal  estate. 

§  335.  Estates  capable  of  being  created  in  uses. —  When  one 
has  an  unlimited  use,  i.  e.,  a  use  in  fee,  whether  alone  or 
merged  in  the  legal  estate,  there  is  no  limitation  upon  the 
number  and  kinds  of  estates  which  might  be  carved  out  of  it. 
Not  only  may  all  the  estates  known  to  the  common  law  be 

38  2  Washburn  on  Real  Prop.  395,  399;  1  Spence  Eq.  Jur.  455,  456, 
460;  1  Washburn  on  Real  Prop.  297;  2  Bla.  Com.  331;  Jackson  v.  Catlin, 
2  Johns.  261.  Uses  are  now  very  generally  held  to  be  subject  to  the 
husband's  right  of  curtesy.  See  ante,  Sec.  79.  "  The  legislature,  at  a 
very  early  date,  interf erred,  in  the  interest  of  creditors,  to  render  uses 
liable  to  be  taken  in  ej  eution  for  debt."  Digby  Hist.  Real  Prop.,  Ch. 
7,  Sec.  1 ;  Kirehwey,  Read,  in  Law  Real  Prop.   155. 

34  2  Bla.  Cora.  329;   1  Spence  Eq.  Jur.  454. 

35  2  Cruise  Dig.  342 ;  1  Spence  Eq.  Jur.  454.  The  Statute  of  Frauds 
required  all  trusts  and  confidences  to  be  proved  by  some  writing.  29 
Car.  2,  Ch.  3.  "  When  the  interest  ...  of  cestui  que  xtse  had  been 
created,  that  interest  might  without  any  formality,  by  words  or  acts, 
evidencing  the  intention,  be  transferred,  by  cestui  que  use,  to  any  one 
capable  of  taking  a  use."  Digby  Hist.  Real  Prop.,  Ci.  6.  Kirehwey, 
Read,  in  Law  Real  Prop.   154. 

86  2  Washburn  on  Real  Prop.  396;  2  Bla.  Com.  331. 
500 


CH.    XIV.]  USES   BEFORE   THE   STATUTE   OP   USES.  §  336 

created,  such  as  in  tail,  for  years,  for  life,  in  remainder 
vested  or  contingent,  upon  condition  and  upon  limitation,^^ 
but  other  estates  and  interests  may  be  limited  which  are  un- 
known to  the  common  law,  and  violate  its  most  inflexible  rules. 
Thus,  an  estate  in  freehold  in  the  use  may  be  created  to  com- 
mence in  the  future  without  a  particular  estate  to  support  it, 
whether  it  be  vested  or  contingent.  Or  the  grantor  may 
limit  the  use  in  such  a  manner  as  to  pass  from  one  to  another 
upon  the  happening  of  a  contingency;  or  he  may  reserve  to 
himself  or  grant  to  another  the  power  to  divest  the  present 
cestui  que  use  and  vest  the  use  in  another  to  be  appointed,  or 
simply  by  such  destruction  of  the  prior  use  to  cause  the  use 
to  revert  to  the  grantor.  These  limitations  were  impossible 
at  common  law.^*  And  in  construing  the  limitations  of  uses, 
the  strict  technical  rules  are  not  observed,  the  intention  gov- 
erning in  each  case.  A  fee  might,  therefore,  be  created  in  the 
use  without  an  express  limitation  to  heirs,  if  the  intention  to 
create  such  an  estate  is  manifested  in  any  other  way.^® 

§  336.  Disposition  of  uses  by  will. —  Under  the  feudal  sys- 
tem, lands  could  not  be  disposed  of  by  will.  But  uses  were 
held  to  be  capable  of  devise  without  limitation;  and  until 
the  passage  of  the  Statute  of  Wills,  32  Hen.  VIII,  which  made 
lands  divisible  by  law,  as  they  were  under  the  Saxon  law 
before  the  Norman  conquest,  it  was  a  common  custom  to  con- 
vey lands  to  the  use  of  the  grantor,  which  he  could  then  dis- 
pose of  by  will  as  well  as  by  deed."     The  Statute  of  Wills 

87  1  Spence  Eq,  Jur.  455 ;  1  Cruise  Dig.  343 ;  2  Washburn  on  Real 
Prop.  397. 

38  2  Washburn  on  Real  Prop.  397,  398;  1  Cruise  Dig.  343;  1  Spence 
Eq.  Jur.  455;  Chudleiph's  Case,  1  Rep.  135;  Shelley's  Case,  1  Rep.  101; 
Feame  Cont.  Rem.  284. 

30  1  Spence  Eq.  Jur.  452;  Tud.  Ld.  Cas.  253;  2  Washburn  on  Real 
Prop.  395. 

«>"It  should  be  remembered  that  no  formality,  not  even  writing, 
was  required  to  establish  a  will ;  any  evidence  of  the  expression  of  the 
intention  of  a  testator,  would  be  sufQcient  to  raise  a  use,  by  which  the 

501 


§  337        USES  BEFORE  THE  STATUTE  OF  USES.    [PART  H. 

obviated  the  necessity  of  such  a  conveyance  in  respect  to  all 
persons  who  were  empowered  by  that  statute  to  devise  lands. 
As  married  women  were  expressly  excluded  from  the  benefit 
of  the  statute,  this  practice  of  conveying  to  uses  to  enable 
a  disposition  by  will  still  obtained  as  to  them.  The  will  in 
such  cases  only  operates  as  an  assignment  or  devise  of  the 
use,  or,  if  it  be  executed  under  a  power  of  appointment,  as 
a  declaration  or  appointment  of  a  use,  and  the  legal  estate 
remains  unaffected  in  the  hands  of  the  trustee.  But  in 
chancery  the  equitable  interests  thus  acquired  by  the  devisee 
would  receive  as  complete  a  protection  as  those  of  an  as- 
signee or  grantee  inter  vivos.*^ 

§  337.  How  lost  or  defeated. —  The  enforcement,  and  hence 
the  validity  of  a  use,  depends  upon  a  privity  of  estate  and 
person,  existing  between  the  feoffee  and  cestui  que  use  in 
relation  to  the  land.  Before  the  Statute  of  Uses,  any  act  of 
the  feoffee  by  which  this  privity  was  destroyed,  would  defeat 
the  use  also.  If  the  feoffee  lost  his  seisin  by  being  disseised, 
or  he  disposed  of  the  land  by  deed  to  a  purchaser  for  con- 
sideration and  without  notice  of  the  use,  the  use  would  be 
defeated,  whether  it  was  vested  or  contingent,  in  possession  or 
in  remainder.  But  a  conveyance  to  one  with  notice,  or  with- 
out consideration,  or  a  descent  of  the  lands  to  the  heirs  of  the 
feoffee  would  not  affect  the  use.  The  use  could  still  be  en- 
forced against  the  assignee  or  heir.*^  Where  the  feoffee  was 
disseised,  he  alone  could  recover  the  seisin  according  to  the 
common  law,  and  the  cestui  que  use  could  not  enforce  the  use 
against  the  disseisor.  And,  although  even  now  the  disseisin 
of  the  trustee  is  likewise  a  disseisin  of  the  cestui  que  use,  and 

next  legal  owner  would  be  bound."  Digby,  Hist.  Real  Prop.  Ch.  6; 
Kirchwey,  Read,  in  Law,  Real  Prop.  155. 

41  Co.  Lit.  271b,  Butler's  note  231;  Tud.  Ld.  Cas.  268;  2  Bla.  Com. 
.329 ;  2  Washburn  on  Real  Prop.  395,  396 ;  6  Cruise  Dig.  3,  4. 

"Co.  Lit.  371  b,  Butler's  note  231,  Sec.  2;  Tud.  Ld.  Cas.  254;  Lewin 
on  Tr.  2;  2  Washburn  on  Real  Prop,  389,  400;   1  Spence  Eq.  Jur.  456; 
Chudleigh's  Case,  1  Rep.  120. 
502 


CH.    XIV.]  USES   BEFORE   THE   STATUTE   OP   USES.  §  337 

if  continued  for  a  sufficient  length  of  time,  would  bar  both 
the  equitable  and  legal  estates,  yet  at  present,  the  cestui  que 
use  may,  upon  his  own  motion,  and  without  the  co-operation 
of  his  trustee,  have  the  disseisor  declared  a  trustee,  holding 
the  legal  estate  subject  to  the  use.*" 

*8  See  preceding  note ;  1  Spence  Eq.  Jur.  501 ;  1  Cruise  Dig.  403. 

503 


SECTION  II. 

USES  UNDER  THE  STATUTE  OF  USES. 

Section  338.  History  of  the  Statute  of  Uses. 

339.  When  statute  will  operate. 

340.  A  person  seised  to  a  use  and  in  esse. 

341.  Freehold  necessary. 

342.  Use  upon  a  use. 

343.  Feoffee  and  cestui  que  use  —  Same  person. 

344.  A  use  in  esse, 

345.  Cestui  que  use  in  esse. 

346.  Words  of  creation  and  limitation. 

347.  Active  and  passive  uses  and  trusts. 

348.  Uses  to  married  women. 

349.  Cases  in  which  the  statute  will  not  operate. 

§  338.  History  of  the  Statute  of  Uses. —  As  has  been  stated 
in  the  preceding  section,  uses  became  a  very  common  mode  of 
limiting  estates.  In  consequence  of  the  equitable  and  un- 
certain character  of  the  use,  and  its  freedom  from  the  burdens 
of  common-law  estates,  its  popularity  gave  rise  to  the  constant 
perpetration  of  frauds  upon  the  legal  rights  of  others. 
* '  Heirs  were  unjustly  inherited ;  the  king  lost  his  profits  of  at- 
tainted persons,  aliens  born,  and  felons;  lords  lost  their  wards, 
marriages,  reliefs,  heriots,  escheats,  aids;  married  men  lost 
their  tenancies  by  the  curtesy,  and  women  their  dower;  pur- 
chasers were  defrauded;  no  one  knew  against  whom  to  bring 
his  action,  and  manifest  perjuries  were  committed. ' '  **  Sev- 
eral attempts  were  made  by  the  enactment  of  statutes  to  check 
these  abuses,  notably  a  statute  in  the  reign  of  Richard  III 
(1  R.  Ill,  ch.  1),  but  to  no  avail.  Means  of  avoiding  the 
operation  of  these  statutes  were  soon  discovered,  and  the 
abuses  were  as  grievous  after  as  they  were  before  their  en- 

**l  Sugd.  Pow.  (ed.  1856)   78. 

504 


CH.    XIV.]  USES   UNDER   THE  STATUTE   OP   USES.  §   338 

actment.  Finally  the  statute  of  27  Hen.  VIII,  eh.  10,  the 
celebrated  Statute  of  Uses,  was  passed  by  parliament.*'*  The 
evident  intention  of  the  legislator  was  to  abolish  the  doctrine 
of  uses  altogether  by  the  statutory  transfer  of  the  legal  estate 
from  the  feoffee  to  use  to  the  cestui  que  use  in  every  case, 
whatever  may  be  the  limitations  upon  the  use.  But  the  stat- 
ute met  with  the  most  determined  opposition  from  the  bench 
and  bar.  Notwithstanding  the  many  alleged  frauds  which 
could  be  committed  by  an  abuse  of  the  doctrine,  public  senti- 
ment was  opposed  to  its  absolute  destruction,  and  was  in  favor 
of  preserving  the  power  of  creating  an  equitable  estate  in 
the  nature  of  a  use.  And  notwithstanding  the  remedial  char- 
acter of  the  statute,  it  received  at  the  hands  of  the  profession 

*5  The  statute  enacted  that  "  where  any  person  or  persons  stood  or 
were  seized,  or  at  any  time  thereafter  shor.ld  happen  to  be  seized,  of 
and  in  any  honours,  castles,  manors,  lands,  tenements,  rents,  services, 
reversions,  remainders,  or  other  hereditaments,  to  the  use,  confidence 
or  trust  of  any  other  person  or  persons,  or  of  any  body  politic,  by 
reason  of  any  bargain,  sale,  feoffment,  fine,  recovery,  covenant,  contract, 
agreement,  will  or  otherwise,  by  any  manner  of  means  whatsoever  it  be; 
that  in  every  such  case  all  and  every  such  person  and  persons  and 
bodies  politic,  that  have  or  hereafter  shall  have,  any  such  use,  confi- 
dence or  trust,  in  fee  simple,  fee  tail,  for  term  of  life,  or  for  years  or 
otherwise,  or  any  use,  confidence  or  trust  in  remainder  'or  reverter, 
shall  from  henceforth  stand  and  be  seized,  deemed  and  adjudged  in 
lawful  seisin,  estate  and  possession,  of  and  in  the  same  honours,  castles, 
manors,  lands,  tenements,  rents,  services,  reversions,  remainders,  or 
other  hereditaments,  with  their  appurtenances,  to  all  intents,  construc- 
tions and  purposes  in  the  law,  of  and  in  such  like  estates  as  they  had 
or  shall  have  in  the  use,  confidence  or  trust  of  or  in  the  same ;  and 
that  the  estate,  title,  right  and  possession,  that  was  in  such  person  or 
persons,  that  were  or  hereafter  shall  be  seized  of  any  lands,  tenements 
or  hereditaments  to  the  use,  confidence  or  trust  of  any  sxich  person  or 
persons,  or  of  any  body  politic,  be  from  henceforth  clearly  deemed  and 
adjudged  to  be  in  him  or  them  that  have  or  hereafter  shall  have  such 
use,  confidence  or  trust,  after  such  quality,  manner,  form  and  condition 
as  they  had  before,  in  or  to  the  use,  confidence  or  trust  that  was  in 
them."  This  statute  has  either  been  adopted  in  the  different  States 
of  this  country  as  part  of  the  common  law,  or  substantially  re-enacted, 
BO  that  it  prevails  generally  throughout  the  United  States,  2  Pom.  Eq. 
Jur.,  Sec.  530,  note  1;  Perry  on  Tr.  299. 

505 


§  340  USES   UNDER   THE   STATUTE   OP   USES.  [PART   II. 

a  strict  and  technical  construction,  and  was  permitted  to 
operate  only  so  far  as  it  was  impossible  to  render  nugatory  its 
express  provisions.  Instead  of  destroying  uses,  the  statute 
only  established  them  upon  a  firmer  basis.  By  a  remarkable 
course  of  judicial  construction— ^it  was  practically  legislation 
— the  modern  doctrine  of  trusts  arose,  which  obtains  to  this 
day,  and  which  includes  every  species  of  equitable  estate 
which,  under  the  statute,  is  capable  of  creation  without  being 
merged  into  the  legal  estate. 

§  339.  When  statute  will  operate. —  The  Statute  of  Uses 
will  only  operate  upon  a  conveyance  to  uses,  and  transfer  the 
legal  to  the  holder  of  the  equitable  title,  when  the  following 
three  elements  are  present:  First,  a  person  seised  to  a  use, 
and  in  esse;  second,  a  cestui  que  use  in  esse;  and  third,  a  use 
in  esse.*^ 

§  340.  A  person  seised  to  a  use  and  in  esse. —  Any  person 
who  was  capable  of  being  seised  before  the  statute  would  sat- 
isfy the  requirements.  And  although  at  first  it  was  supposed 
and  held,  that  aliens  and  corporations  could  not  be  seised  to 
uses,  at  the  present  day  there  is  no  such  restriction.  In  re- 
gard to  alien  feoffees  to  aise,  the  general  rules  of  equity  relat- 
ing to  trusts  will  apply,  and  prevent  the  failure  of  the  use 
because  of  their  incapacity  to  hold  the  seisin.*^  And  in  this 
country  corporations  are  included  under  the  term  ''persons," 
and  may  be  seised  to  uses  if  under  the  limitations  their  char- 
ters permit  of  such  holding.**    But  the  person  seised  must  be 

«•  1  Cruise  Dig.  349 ;  2  Washburn  on  Real  Prop.  407. 

47  2  Washburn  on  Real  Prop.  408 ;  1  Cruise  Dig.  349 ;  Bac.  Law  Tracts 
347,  348. 

*8  Sutton  V.  Cole,  3  Pick.  240;  U.  S,  v.  Amedy,  11  Wheat.  392;  Vidal 
t\  Girard,  2  How.  127 ;  Bethlehem  Borough  v.  Perseverance  Fire  Co., 
81  Pa.  St.  445;  First  Parish,  etc.,  v.  Cole,  3  Pick.  232-237.  But  if  the 
use  or  trust  is  foreign  to  the  purposes  of  its  institution,  the  corpora- 
tion cannot  hold  the  seisin  or  legal  estate.  A  new  trustee  must  be  ap- 
pointed to  take  its  place.  Matter  of  Howe,  1  Paige  214;  Sloan  v.  Mc- 
506 


CH.    XrV.]  USES   UNDER   THE  STATUTE  OF   USES.  §  341 

in  esse.  If  by  reason  of  the  limitations  of  the  conveyance  the 
foeffee  to  use  is  uncertain,  as  he  would  be  if  the  legal  estate 
upon  which  the  use  depends  is  a  contingent  remainder,  the 
statute  cannot  operate  until  the  contingency  happens,  upon 
which  the  remainder  becomes  vested/® 

§  341.  Freehold  necessary. —  Seisin  cannot  be  predicated 
of  leasehold  estates.  In  order,  therefore,  that  the  statute  may 
take  effect,  the  estate  in  the  feojfee  to  use  must  be  a  freehold 
for  the  reason  that  the  statute  only  provides  for  the  transfer 
of  the  legal  estate  where  one  is  seised  to  the  use  of  another. 
All  leaseholds  held  to  uses  remain  unexecuted  as  before  the 
statute,  and  the  uses  are  enforceable  only  in  a  court  of  equity. 
It  was  once  supposed  that  the  freehold  must  be  greater  than 
a  life  estate;  but  it  is  now  held  that  any  freehold  estate  is 
suflBcient,  including  life  estates  and  all  estates  of  inheritance."'* 
If  the  freehold,  upon  which  the  use  depends,  is  not  commen- 
surate with  the  use,  the  use  will  be  valid,  and  will  be  executed, 
only  as  far  as  the  legal  estate  extends.  If  the  legal  estate 
in  the  feoffee  is  only  a  life  estate,  the  use  is  good  only  for 
that  time,  even  though  the  limitation  of  the  use  be  in  terms 
a  fee  simple.'*^  But  it  is  probable  at  the  present  day  that  the 
rule  would  be  so  far  relaxed  as  to  make  the  legal  estate  by 
construction  co-extensive  with  the  use,  unless  a  smaller  estate 
is  expressly  limited,  in  conformity  with  the  rule  governing 
the  same  question   in   its   connection  with   the  doctrine  of 

Conahy,  4  Ohio  157;  Jackson  V.  Hartwell,  8  Johns.  422;  Mason  v.  M, 
E.  Church,  27  N.  J.  Eq.  47. 

49  2  Washburn  on  Real  Prop.  408;  Bac.  Law  Tracts  349. 

00  1  Cruise  Dig.  350,  351,  353;  Tud.  Ld.  Cas.  257-259;  Galliers  v. 
Mobs,  9  B.  &  C.  267;  1  Prest.  Est.  190;  1  Spence  Eq.  Jur.  466-490; 
Ashhurst  v.  Givens,  5  Watts  &  S.  327 ;  Merrill  v.  Brown,  12  Pick.  220. 

81  Tud.  Ld.  Cas.  259;  Sandf.  on  Uses  109;  Jenkins  V.  Young,  Cro. 
Oar.  230 ;  2  Washburn  on  Real  Prop.  409. 


507 


§  342  USES   UNDER   THE   STATUTE   OF   USES.  [pART   II. 

trusts.""     And  an  estate  tail  has  been  held  sufficient  to  support 
a  use  in  fee  simple."' 

§  342.  Use  upon  a  nse. — Since  seisin  requires  a  legal  estate, 
and  the  person,  out  of  whom  the  legal  estate  is  to  be  drawn 
by  the  statute,  and  transferred  to  the  cestui  que  use,  was 
required  to  be  seised,  the  courts  have  held  that  the  statute  can 
only  execute  the  first  use,  and  can  have  no  effect  upon  the 
second  or  other  use  depending  upon  the  first.  For  example, 
an  estate  is  limited  to  the  use  of  A.  to  the  use  of  B.  The 
statute  can  execute  the  use  in  A.,  but  cannot  go  further  and 
transfer  the  legal  estate  to  B.,  the  final  and  actual  cestui  que 
use,  because  by  the  strict  construction  of  the  statute  the 
legal  estate  can  only  pass  from  persons  who  were  seised  of 
the  legal  estate  under  the  deed.  A.  had  only  a  use,  and 
therefore  was  not  seised.  But  inasmuch  as  after  the  execu- 
tion of  the  use  the  cestui  que  use  was  to  hold  the  legal  estate 
in  "such  quality,  manner,  form  and  condition"  as  he  had 
in  the  use,  A.  in  the  case  supposed  would  hold  the  legal  estate 
to  the  use  of  B.,  and  accountable  to  B.  in  equity  for  the  rents 
and  profits."* 

52  Doe  V.  Nichols,  1  B.  &  C.  336;  Doe  V.  Ewart,  7  A.  &  E.  636;  Nor- 
ton f.  Norton,  2  Sandf.  296;  Barker  v.  Greenwood,  4  M.  &  W.  421; 
Renziehausen  v.  Keyser,  48  Pa.  St.  351.     See  post,  Sec.  371. 

53  1  Cruise  Dig.  352 ;  2  Washburn  on  Real  Prop.  409. 

54  2  Washburn  on  Real  Prop.  406,  409,  457,  460,  461  ;  Tyrell's  Case, 
Dyer  155,  1  Co.  Rep.  136  b,  187;  Croxall  v.  Shererd,  5  Wall.  282; 
Wyman  v.  Brown,  50  Me.  157;  Hopkins  v.  Hopkins,  1  Atk.  591;  Willett 
V.  Sanford,  1  Ves.  Sr.  186;  2  Pom.  Eq.  Jur.,  Sec.  985.  The  rule  above 
enunciated,  that  a  use  cannot  be  limited  upon  a  use,  has  been  abolished 
by  statute  in  New  York,  California,  Michigan,  Minnesota,  and  Wiscon- 
sin. See  post.  Sec,  347,  note.  And  it  has  also  been  disapproved  and 
adversely  commented  on  by  the  Massachusetts  court.  Thatcher  V. 
Omans,  3  Pick.  521,  528.  But  it  is,  perhaps,  generally  recognized  in 
this  country  wherever  it  has  not  been  changed  by  statute.  And,  basing 
their  conclusions  upon  this  doctrine,  the  courts  have  held  that  where 
in  a  deed  of  bargain  and  sale  the  estate  is  limited  to  the  bargainee  to 
the  use  of  another,  it  is  such  a  use  upon  a  use  as  will  not  be  executed 
by  the  statute.     See  Guest  t?.  Farley,  19  Mo.  147;  Jackson  v.  Myers,  ?• 

508 


CH.    XIV.]  USES   BEFORE   THE   STATUTE   OF    USES.  §    343 

§  343.  Feoffee  and  cestui  que  use  —  Same  person. —  Where 
the  feoffee  to  use  and  the  cestui  que  use  are  the  same  person, 
there  is  a  merger  of  the  equitable  in  the  legal  estate  without 
the  aid  of  the  Statute  of  Uses.  He  takes  an  absolute  estate 
at  common  law,  unless  such  a  merger  would  defeat  the  pur- 
poses of  the  conveyance.^'  Nor  would  there  be  a  merger,  if 
the  use  to  the  feoffee  was  not  as  extensive  as  the  legal  estate 
which  is  conveyed  to  him,  as  where  the  estate  is  a  fee,  and  his 
use  is  a  life  interest,  or  he  takes  the  use  jointly  with  another. 
In  such  cases  the  use  could  only  be  executed  by  the  statute.*^** 
But,  nevertheless,  if  a  use  is  limited  upon  the  use  of  the 
feoffee,  it  will  be  construed  such  a  limitation  of  a  use  upon 
the  use  as  to  preclude  the  execution  of  the  second  use.  Thus, 
in  a  conveyance  to  A.  to  the  use  of  A.  to  the  use  of  B.,  al- 
though, in  the  absence  of  the  use  to  B.,  A.  would  have  been 
held  to  be  in  possession  of  the  legal  estate  at  common  law  by 
the  merger  of  the  equitable  in  the  legal  estate,  yet  this  express 
limitation  to  his  use  will  prevent  the  operation  of  the  statute 
upon  the  use  in  B.  A.  would  hold  the  legal  estate,  and  the 
use  in  B.  would  remain  unexecuted.'^     In  some  of  the  States 

Johns.  388,  396;  Jackson  v.  Gary,  16  Johns.  302;  Croxall  v.  Shererd, 
supra;  Price  v.  Sisson,  2  Beas.  168.  This  is,  however,  only  the  case 
with  a  pure  bargain  and  sale  deed.  When  such  a  limitation  occurs  in 
a  modern  deed  of  conveyance,  which  might  be  treated  as  a  common-law 
conveyance,  as  well  as  a  bargain  and  sale,  and  such  is  supposed  to  be 
the  ease  where  the  operative  words  are  "  grant,  bargain  and  sell,"  or 
"  give,  grant,  bargain  and  sell,"  the  use  would  presumably  be  executed 
by  the  statute,  the  bargainee  or  grantee  having  acquired  the  seisin  and 
the  legal  estate  by  force  of  the  deed  as  a  common-law  conveyance. 

85  2  Prest.  Conv.  481;  Co.  Lit.  271  b,  Butler's  note  231;  1  Cruise  Dig. 
354 ;  Tud,  Ld.  Cas.  2.57 ;  Jackson  v.  Cary,  16  Johns.  302. 

5«  1  Cruise  Dig.  357 ;  Tud.  Ld.  Cas.  258 ;  Sammes'  Case,  13  Rep.  56 ; 
Sand,  on  Uses  94,  96. 

''TDoe  V.  Passingham,  6  B.  &  C  305,  317;  Williams  on  Real  Prop. 
161;  Tud.  Ld.  Cas.  268;  Doe  v.  Martin,  4  T.  R.  89;  2  Smith  Ld.  Cas. 
4.54;  Whetstone  v.  Bury,  2  P.  Wms.  146;  1  Sugden  on  Pow.  168,  169; 
Moore  v.  Shultz,  13  Pa.  St.  98;  Hayes  v.  Tabor,  41  N.  H.  521,  526; 
Atty.-Gen.  v.  Scott,  Cas.  temp.  Talb.  138;  Price  v.  Sisson,  2  Beas.  168, 
173,  174;  2  Bla.  Com.  336;  Franciscus  v.  Reigart,  4  Watts  118.  Contra, 
Hurst  V.  McNiel,  I  Wash.  C.  Ct.  70. 

509 


§   344  USES  UNDER  THE  STATUTE  OF  USES.  [PART  II. 

this  doctrine  concerning  the  effect  of  a  use  upon  a  use  has 
been  abolished  by  statute,  and  the  legal  title  is  made  to  pass 
through  all  the  intermediate  cestuis  que  use  until  the  final 
and  actual  beneficiary  is  reached,  when  it  becomes  vested  in 
him." 

§  344.  A  use  in  esse. —  It  matters  not  whether  the  use  is 
one  in  possession,  reversion,  or  remainder,  if  the  vesting  of 
the  title  thereto  is  not  contingent,  it  is  a  use  in  esse,  and  will 
be  executed  at  once  by  the  statute.  If  the  use  is  one  in  pos- 
session it  will  be  executed  immediately,  both  in  title  and  in 
possession.  If  it  is  to  commence  in  the  future  it  is  called, 
according  to  the  terms  of  the  limitation,  a  contingent,  spring- 
ing, or  shifting  use,  and  will  be  considered  in  a  subsequent 
section.**  Nor  is  it  important  in  what  manner  the  use  is 
created, — whether  by  express  limitation  or  by  law,  as  in  the* 
case  of  a  resulting  use,  however  the  use  arises, — if  Jt  is  in  esse, 
i.  e.,  vested,  the  statute  will  execute  it.^°  If  the  use  is  contin- 
gent, the  use  is  not  in  esse  until  the  happening  of  the  con- 
tingency upon  which  its  vesting  depends,  when  it  will  be 
executed  in  the  same  manner  as  if  it  had  been  vested  from 
the  time  of  its  creation.*'^  A  contingent  use  cannot  be  exe- 
cuted by  the  statute  of  uses  into  a  legal  estate,  because  the 
transfer  of  the  seisin  would  give  the  cestui  que  use  a  vested 
estate,  while  he  had  in  the  use  only  a  contingent  estate.  And 
the  statute  required  that  the  cestui  que  use  should  take  the 
seisin  or  legal  estate  "in  such  quality,  manner,  form  and 
condition,"  as  he  had  the  use. 

88  See  ante,  See.  342,  note ;  and  post.  Sec.  349,  note. 

59  See  post,  Sees.  350,  357. 

«o  1  Cruise  Dig.  358;  Hopkins  V.  Hopkins,  1  Atk.  591;  Chudleigh'a 
Case,  1  Rep.  126;  Osman  v.  Sheafe,  3  Lev.  370;  Doe  v.  Salkeld,  Willes, 
674;  2  Smith's  Ld.  Cas.  288,  297;  Hays  v.  Kershaw,  1  Sandf.  Ch.  258: 
Tud.  Ld.  Cas.  262. 

61  Chiidleigh's   Case.    1   Rep.    126;    Tud.   Ld.   Cas.   262;    Shep.   Touch. 
Prest.  ed.   .529  n;    Sand,  on  Uses   110;    1   Sugden   Pow.  41.     See  post. 
Sees.  351,  353. 
510 


CH.    XIV.]  USES   UNDER   THE   STATUTE   OF   USES.  §  346 

§  345.  Cestni  que  use  in  esse. —  There  must,  furthermore, 
be  some  ascertained  person  in  esse  who  is  to  take  and  who  can 
take  the  use  under  the  conveyance.  As  a  general  proposition, 
subject  to  an  exception  to  be  mentioned  elsewhere,®^  the  char- 
acter of  the  cestui  que  use  will  not  affect  the  execution  of  the 
use.  Any  person  in  esse  will  fullfil  the  requirements  of  the 
statute."^  But  if  the  cestui  que  use  is  not  in  esse,  or  not 
ascertained,  the  use  is  future  and  contingent,  and  the  opera- 
tion of  the  statute  is  suspended  until  the  cestui  que  use  is 
known.®*  If  a  future  use  is  to  vest  upon  the  happening  of 
some  contingency  independent  of  human  action,  it  is  called  a 
contingent,  springing,  or  shifting  use.  But  if  the  uncertainty 
or  contingent  character  is  to  be  settled  by  the  act  of  some 
person  or  persons  designated  by  the  grantor  or  testator,  then 
the  limitation,  although  in  fact  nothing  more  than  a  contin- 
gent future  use,  receives  the  name  of  a  power.®^ 

§  346.  Words  of  creation  and  limitation. —  No  special  form 
of  expression  or  set  of  words  is  necessary  in  the  creation  of 
uses,  provided  such  words  are  used,  as  clearly  show  the  in- 
tention of  the  grantor  that  a  use  was  to  be  declared  in  favor 
of  another.  The  Statute  of  Uses  employs  the  words  "use, 
confidence,  or  trust,"  and  it  would  accordingly  be  safer  to 
adopt  one  of  these  words,  although  it  is  not  necessary."**  Al- 
though the  employment  of  technical  words  of  limitation  was 
not  necessary  in  the  creation  of  a  use  before  the  statute,**^  and 
since  the  statute  they  are  not  always  necessary  in  the  limita- 
tion of  equitable  estates  which  are  not  executed  by  the  statute, 

82  See  post,  Sec.  348. 

«3  1  Cruise  Dig.  354;  2  Washburn  on  Real  Prop.  410. 

«*  1  Cruise  Dig.  354;  2  Bla.  Com.  336;  Jackson  v.  Myers.  3  Johns. 
388;  Reformed  Dutch  Church  v.  Veeder,  4  Wend.  494;  Ashhurst  v. 
Given,  5  Watts  &  L.  323.     See  post,  Sec.  351. 

«6  2  Washburn  on  Real  Prop.  420;  Shep.  Touch.  Prest.  ed.  529  n. 

««2  Washburn  on  Real  Prop.  411;  Tud.  Ld.  Cas.  2,58. 

«7  1  Spence  Eq.  Jur.  452 ;  1  Cruise  Dig.  343 ;  Tud.  Ld.  Cas.  253 ;  2 
.Washburn  on  Real  Prop.  395. 

511 


§  347  USES   UNDER  THE   STATUTE   OF    USES.  [PART   II. 

and  which  properly  fall  under  the  head  of  trusts,''*  yet  if 
the  statute  does  operate  the  use  will  be  valid  for  the  pur- 
pose of  execution,  only  so  far  as  the  words  of  limitation  are 
capable  of  limiting  similar  estates  at  common  law.  The  word 
"heirs"  is  therefore  necessary  to  a  use  in  fee,  where  the  com- 
mon law  in  respect  to  words  of  limitation  has  not  been 
changed  by  statute,  and  its  absence  cannot  be  supplied  by 
words  of  similar  import.  A  conveyance,  therefore,  to  the  use 
of  A.  and  the  issue  of  his  body  would  be  neither  an  estate 
tail  nor  a  fee  simple,  and  A.  would  take  only  a  life  estate.*" 

§  347.  Active  and  passive  uses  and  trusts. —  Both  before 
and  after  the  passage  of  the  statute,  uses  and  trusts  have 
been  divided  into  active  and  passive.  Where  the  feoifee  to 
use  was  required  to  perform  some  duty  in  respect  to  the 
estate,  the  use  was  an  active  one.  "Where  the  feoffee  had 
nothing  to  do  but  to  hold  the  legal  title  and  seisin  for  the 
support  of  the  use,  it  was  called  passive.  Now,  since  the 
feoffee  can  perform  these  duties  only  as  long  as  he  retains  the 
legal  estate,  the  statute  could  not  execute  an  active  use  or 
trust  without  defeating  the  express  purpose  and  intention 
of  the  grantor.  Furthermore,  his  estate  in  the  use  was  sub- 
ject to  the  performance  of  this  duty  by  the  legal  owner,  and 
an  execution  of  the  use  would  not  vest  the  seisin  and  estate 
after  "such  quality,  manner,  form  and  condition"  as  he  had 
in  the  use.  The  courts,  therefore,  held  that  it  was  not  the 
will  of  the  Legislature  to  execute  active  uses.''"  And  under 
the  strict  construction  of  the  statute  the  slightest,  most  un- 

csVilliers  V.  Villiers.  2  Atk.  71;  Fisher  r.  Fields.  10  Johns.  ,50.5; 
Cleveland  v.  Hallett,  6  Cush.  406.     See  post.  Sec.  371. 

«»Tud.  Ld.  Cas.  261;  1  Cruise  Dig.  354;  Sand,  on  Uses  122;  2 
Washburn  on  Real  Prop.  380.  In  most  of  the  States  the  common  law  in 
respect  to  the  employment  of  technical  words  of  limitation  has  been 
abolished  by  statute.  The  above  rule,  therefore,  possesses  very  little 
practical  importance.     See  ante,  Sec.  30. 

70  2  Washburn  on  Real  Prop.  467.     See  note  under  See.  347. 

512 


CH.    XIV.]  USES   UNDER   THE   STATUTE   OF   USES.  §   348 

important  duty  in  the  trustee  would  prevent  the  operation  of 
the  statute.^^ 

§  348.  Uses  to  married  women. —  So  also  where  the  purpose 
of  the  trust  is  that  the  cestui  que  use,  a  married  woman, 
should  hold  and  enjoy  the  estate  for  her  own  separate  use, 
the  statute  will  not  execute  the  use.  For  the  execution  of  the 
use  would  give  to  the  husband  control  over  the  property  and 
its  rents  and  profits  during  coverture,  and  the  common-law 
right  of  curtesy  would  attach  because  of  her  disability  to  hold 
the  legal  estate  free  from  his  control.^^  In  making  a  convey- 
ance to  the  separate  use  of  a  married  woman,  her  power  of 
alienation  may,  by  a  special  clause,  be  entirely  taken  away 
during  the  continuance  of  the  marriage,  and  this  restriction 
will  revive  upon  any  subsequent  marriage,  if  the  trust  is 
itself  revived  by  such  second  marriage.'^  In  the  absence  of 
such  a  restraining  clause,  in  England  and  some  of  the  States, 
a  married  woman  is  to  be  treated,  in  respect  to  her  separate 

'1  Thus,  the  statute  was  held  not  to  execute  the  use,  where  the  trus- 
tee was  directed  to  sell  or  dispose  of  the  property  —  to  collect  and  pay 
over  tlie  rents  and  profits  —  to  have  the  active  management  of  the 
estate  —  to  permit  the  cestui  que  use  to  receive  the  net  profits  —  to 
apply  the  profits  to  the  maintenance  of  the  cestui  que  use  —  to  pay 
annuities  out  of  the  rents,  or  to  receive  the  rents  and  allow  them  to  ac- 
cumulate. In  any  such  case,  the  legal  estate  being  held  necessary  to 
the  performance  of  the  trustee's  duty,  the  statute  could  not  operate, 
and  the  use  remained  an  equitable  estate,  to  be  enforcd  by  the  courts 
of  equity.  1  Prest  Est.  185;  Co.  Lit.  290  b,  note  249,  Sec.  G;  1  Cruise 
Dig.  385;  Doe  V.  Briggs,  2  Taunt.  109;  Nevil  v.  Saunders,  1  Vern.  415; 
Bass  V.  Scott,  2  Leigh  356;  Posey  v.  Cook,  1  Hill  (S.  C.)  413;  Norton 
V.  Leonard,  12  Pick.  152-158;  Morton  v.  Barrett,  22  Me.  257;  Barnett's 
App.,  46  Pa.  St.  398;  Fay  v.  Taft,  12  Cush.  448;  Lancaster  v.  Dolan, 
1  Rawle  231. 

72  1  Cruise  Dig.  385;  Harton  v.  Harton,  7  T.  R.  653;  Stearcy  v. 
Rice,  27  Pa.  St.  75;  Bush's  App.,  33  Pa.  St.  85;  Nevill  v.  Saunders,  1 
Vem.  415. 

78Hawkes  v.  Hubback,  L.  R.  11  Eq.  5;  In  re  Gaffee's^  Trusts,  1  Macn. 
&  G.  541;  Tullett  v.  Armstrong,  4  My.  &  Cr,  377;  Shirley  v.  Shirley,  9 
Paige  363;  Baggett  v.  Meux,  1  Phil.  627.  But  see  Dubs  v.  Dubs,  31  Pa. 
St.  149;  Miller  v.  Bingham,  1  Ired.  423. 

33  513 


§  .j48  uses   under   the   statute   op   uses.  [paKT    II. 

property,  as  a  feme  sole,  and  she  may  dispose  of  the  equitable 
estate  as  she  pleases.'*  In  a  number  of  the  States,  liowever, 
the  English  rule  has  been  discarded,  and  the  contrary  doc- 
trine maintained  that  the  married  woman  has  no  power  over 
her  separate  estate,  except  what  is  expressly  granted  or  re- 
served to  her  in  the  deed  or  settlement.'"^  The  reason  why  the 
statute  of  uses  could  not  execute  the  separate  use  of  a  married 
woman,  was  that  she  could  not,  according  to  the  common  law, 
take  and  hold  the  seisin  and  estate  in  "such  quality,  manner, 
f  onn  and  condition,  "as  she  had  in  the  use.  For  this  rea- 
son it  is  to  be  presumed  that  in  those  States  where  the  disabil- 
ity of  married  women  is  removed,  and  they  are  permitted  to 
hold  and  dispose  of  property  as  if  they  were  single,  the 
reason  failing,  the  rule  would  also  fail,  and  the  statute  would 
execute  the  use.'"  So,  likewise,  since  the  passive  use  in  the 
married  woman  is  not  executed,  only  because  her  disability 
at  common  law  prevents  her  taking  and  holding  the  same 
rights  and  privileges  in  the  legal  estate  as  she  had  in  the 
use,  if  she  assigns  the  use  to  one,  who  is  not  under  a  similar 
disability,  the  statute  will  at  once  execute  the  use,  and  her 
grantee  would  get  the  absolute  legal  estate,  without  the  join- 
ing of  the  trustees  in  the  conveyance."  And  the  husband 
would  only  have  to  join  in  the  conveyance  in  order  to  bar  his 
curtesy,  if  he  had  any  in  the  equitable  estate. 

74Fettiplace  v.  Gorges,  1  Ves.  46;  Rich  r.  Cockrell,  9  Ves.  69;  Wag- 
staff  V.  Smith,  9  Ves.  520;  Sturgis  v.  Corp.,  13  Ves.  190;  IMajor  r.  Lus- 
ley,  2  Russ.  &  My.  357 ;  Essex  v.  Atkins,  14  Ves.  542 ;  Dyett  r.  North 
American  Coal  Co.,  20  Wend.  570;  7  Paige  Ch.  1;  Powell  r.  Murray,  2 
Edw.  Ch.  636;  Gardner  v.  Gardner,  22  Wend.  526;  Imlay  r.  Huntington, 
20  Conn.  175;  Collins  v.  Larenburg,  19  Ala.  685;  Coleman  v.  Woolley, 
10  B.  Mon.  320. 

75  Ewing  V.  Smith,  3  Desau  417;  Reed  r.  Lamar,  1  Strobh.  Eq.  27; 
Calhoim  v.  Calhoun,  2  Strobh.  231;  Magwood  r.  Johnson,  1  Hill  Ch. 
228;  Lancaster  r.  Dolan,  1  Rawle  231;  Wallace  r.  Coston.  9  Watts  137. 

76  So  it  was  held  in  Sutton  v.  Aiken,  62  Ga.  753;  Bratton  f.  Massey, 
15  S.  C.  277;  Bayer  v.  Cockerill,  3  Kan.  292. 

77  See  ante,  Sec.  73. 

514 


CH.    XIV.]  USES   UNDER   THE   STATUTE   OF    USES.  §   349 

§  349.  Cases  in  which  the  statute  will  not  operate. —  To  re- 
capitulate, the  following  are  the  principal  cases  in  which  the 
statute  will  not  execute  the  use :  1.  Uses  in  chattel  interests. 
2.  A  use  upon  a  use.  3.  Contingent  uses,  whether  the  con- 
tingency depends  upon  the  uncertainty  of  the  cestui  que  use, 
or  the  use  itself.  4.  Active  uses  or  trusts.  5.  Uses  to  mar- 
ried women.  Every  other  use  will  be  executed  immediately 
upon  their  creation,  the  feoffee  to  use  acting  merely  as  a 
conduit  for  the  transfer  of  the  seisin  to  the  cestui  que  use. 
Contingent  uses  are  executed  when  they  become  vested,  while 
the  other  classes  of  uses  above  enumerated  remain  throughout 
their  entire  duration  unexecuted,  and  enforced  as  trusts  by 
chancery.^* 

'8  As  has  been  remarked  in  a  preceding  note,  the  English  Statute  of 
Uses  has  been  superseded  in  some  of  the  States  by  modern  statutes, 
materially  difTerent  in  their  operation  from  the  old  statute.  New  York 
first  set  the  example,  in  1848.  The  statute  of  New  York  abolishes  all 
express  trusts  heretofore  known,  and  enumerates  the  ohisses  of  active 
trusts  which  can  be  created.  All  other  trusts,  and  particularly  passive 
trusts,  are  declared  to  be  legal  estates,  and  the  seisin  vests  in  the  cestui 
que  use  or  trust  by  force  of  the  statute.  I  Rev.  Stat.  N.  Y.,  p.  727, 
Sees.  45-50.  In  New  York,  therefore,  all  uses  are  converted  into  legal 
estates,  except  the  express  trusts  enumerated  in  the  statute,  and  trusts 
arising  by  implication  of  law.  1  R.  S.  N.  Y.  728,  Sees.  51,  52,  53,  55; 
Leggett  V.  Perkins,  2  N.  Y.  297;  Downing  V.  Marshall,  23  N.  Y.  377; 
Marvin  v.  Smith,  46  N.  Y.  571;  Rose  r.  Hatch,  125  N.  Y.  427;  Greene 
V.  Greene,  125  N.  Y.  506.  The  future  contingent  uses  become,  by  oper- 
ation of  the  statute,  future  contingent  estates  of  a  legal  character,  and 
the  common  law  was  so  changed  as  to  admit  of  the  limitation  of  legal 
estates,  which  were  before  only  possible  as  the  limitation  of  a  use.  1 
R.  S.  N.  Y.  724,  Sees.  16-19.  This  legislation  has,  in  substance,  been 
followed  in  California,  Michigan,  Minnesota  and  Wisconsin.  In  these 
States,  therefore,  the  foregoing  presentation  of  uses  under  the  Statute 
of  Uses,  as  well  as  the  subsequent  section  on  future  or  contingent  uses, 
must  be  taken  with  the  qualifications  arising  under  the  local  statutes 
prevailing  there. 

515 


SECTION  III. 

CONTINGENT,  SPRINGING,  AND  SHIFTING  USES. 

Section  350.  Future  uses. 

351.  Contingent  future  uses  —  How  supported. 

352.  Importance  of  the  question. 

353.  The  solution  of  the  question. 

354.  Contingent  uses. 

355.  Springing  uses. 

356.  Shifting  uses. 

357.  Future  uses  in  chattel  interests. 

358.  Shifting  and  springing  uses  —  How  defeated. 
"  359.  Incidents  of  springing  and  shifting  uses. 

§  350.  Future  uses. —  It  has  been  explained  that  a  use  could 
be  limited  to  commence  in  futuro  with  or  without  a  preceding 
estate  in  the  use  to  support  it,  and  even  in  derogation  of  the 
preceding  estate,  and  that  it  may  be  either  vested  or  contin- 
gent.^^ If  it  is  a  vested  use  the  statute  will  operate  imme- 
diately and  convert  it  into  a  legal  estate,  having  the  charac- 
teristics of  a  vested  estate  in  reversion.  But  if  the  use  is  con- 
tingent, the  operation  of  the  statute  is  suspended  until  the  use 
vests  or  comes  in  esse.  These  future  uses  are  divided  into 
contingent,  springing,  and  shifting  uses,  and  will  here  be 
explained  in  the  order  named. 

§  351.  Contingent  future  uses  —  How  supported. —  In  a  con- 
veyance, where  there  is  a  contingent  use  of  limited  duration, 
and  consequently  there  are  other  vested  uses,  the  latter  are 
executed  eo  instanti,  whether  they  are  created  by  express  limi- 
tation or  arise  by  operation  of  law  under  the  doctrine  of 
resulting  uses;  while  the  contingent  use  remains  unexecuted 
until  the  contingency  happens.     But  in  order  that  the  statute 

10  See  ante.  Sec.  335. 
516 


en.    XIV.]     CONTINGENT,  SPRINGING,  AND  SHIFTING  USES.       §  353 

may  operate,  there  must  be  a  seisin  somewhere  to  feed  the 
contingent  uses  as  they  arise.  Great  difficulty  is  experienced 
in  discovering  where  that  seisin  is  to  be  found,  and  in  de- 
termining its  character.  For  example,  if  an  estate  is  limited 
to  the  use  of  A.  for  life,  to  the  use  of  B.'s  unborn  son,  to 
the  use  of  C.  in  fee.  The  uses  in  A.  and  C.  being  vested,  are 
immediately  executed  by  the  statute,  while  the  use  to  the  un- 
born son  of  B.,  being  contingent,  remains  unaffected.  A., 
under  the  statute,  acquires  a  legal  estate  for  life,  and  C.  a 
vested  remainder  in  fee.  The  statute,  therefore,  transfers  to 
A.  the  seisin  for  life  and  to  C.  the  seisin  in  fee  in  remainder. 
What  is  the  nature  of  the  seisin  left  to  support  the  contingent 
use  in  B.  's  unborn  son,  and  where  is  it  to  be  found  when  the 
use  vests? 

§  352.  Importance  of  the  question. —  The  apparent  neces- 
sity of  locating  this  seisin  and  of  determining  its  character 
arose  from  the  consideration  of  two  questions,  viz. :  1.  After 
the  legal  estate  had  been  vested  in  A.  for  life  and  in  C.  in 
remainder,  was  not  the  entire  seisin  exhausted  and  drawn 
out  of  the  feoffees  or  releasees  to  uses?  2.  If  any  seisin  did 
remain  in  the  feoffees,  could  it  not  be  destroyed  and  the  con- 
tingent use  defeated  by  a  feoffment  of  the  feoffees? 

§  353.  The  solution  of  the  question. —  A  great  deal  of  spec- 
ulative discussion  was  indulged  in  by  the  earlier  judges  and 
writers,  and  a  variety  of  opinions  was  the  result.  Some  held 
that  the  entire  seisin  vested  in  the  executed  uses,  subject  to  the 
future  vesting  of  the  contingent  use;  others  maintained  that 
sufficient  seisin  remained  ''in  nuhibus,  in  mare,  in  terra,  in 
custodia  legis,"  ready  to  become  united  with  the  contingent 
use  when  the  contingency  happens ;  while,  perhaps,  the  largest 
number  sustained  the  view  that  a  portion  of  the  seisin,  which 
they  called  a  scintilla  juris  (a  right  to  recover  the  seisin), 
remained  in  the  feoffees  to  feed  the  uses  as  they  came  into 
being.     But,  under  this  view  of  the  case,  it  was  necessary 

517 


§  354         CONTINGENT,  SPRINGING,  AND  SHIFTING  USES.   [PART  II. 

for  the  feoffees  to  enter  in  order  to  revive  the  seisin  for  the 
contingent  use,  and  any  feoffment  by  them  would  result  in 
tlie  destruction  of  the  scintilla  juris,  and  along  with  it  the 
use  depending  upon  it.  But  the  modern  writers  upon 
uses  have  discarded  all  this  abstruse  and  subtle  reasoning,  and 
support  the  more  rational  doctrine  advocated  by  Mr.  Sugden 
that  "upon  a  conveyance  to  uses  .  .  .  immediately  after 
the  first  estate  is  executed,  the  releasees  to  uses  are  divested 
of  the  whole  estate,  the  estates  limited  previously  to  the  con- 
tingent uses  take  effect,  the  contingent  uses  take  effect  as  they 
arise,  by  force  of  and  relation  to  the  seisin  of  the  releasees  un- 
der the  deed,  and  vested  remainders  over  take  effect  accord- 
ing to  the  deed,  subject  to  open  and  let  in  the  contingent 
uses. ' '  *"  The  seisin  receives,  by  force  of  the  statute,  the 
power  or  capacity  of  feeding  all  the  uses  as  they  arise,  and 
of  being  transmitted  from  one  to  another  as  they  vest  in 
possession.^^  The  maintenance  of  this  view  does  away  with 
the  scintilla  juris,  and  removes  the  necessity  of  a  re-entry  by 
the  feoffee  to  regain  the  seisin  for  the  support  of  the  contin- 
gent use,  even  where  there  has  been  a  disseisin  of  all  the  par- 
ties to  the  deed.*^ 

§  354.  Contingent  uses. —  In  the  foregoing  pages,  the  term 
contingent  use  has  been  used  to  signify  any  future  or  execu- 
tory use  whose  vesting  in  title  depends  upon  a  contingency. 
But  the  term  has  been  given  a  more  restricted  signification, 
meaning  contingent  uses  which  would  be  good  contingent  re- 
mainders if  they  had  not  been  limited  by  way  of  uses.^^     It 

80.3  Prest.  Conv.  400;  1  Sugden  on  Pow.  20-48;  4  Kent's  Com.  238- 
247;  Fearne  Cont.  Rem.  205;  2  Wasliburn  on  Real  Prop.  611;  Chud- 
leigh's  Case,  1  Rep.  120;  Brent's  Case,  Dyer  340;  Tud.  Ld.  Cas.  260; 
Sand,  on  Uses  110. 

81  2  Washburn  on  Real  Prop.  420. 

82  1  Sugden  on  Pow.  17-48;  Fearne  Cont.  Rem.  293,  295,  and  Butler's 
note;  1  Cruise  Dig.  282;  4  Kent's  Com.  238-246;  2  Washburn  on  Real 
Prop.  611,  612. 

'■^  I  Prest.  Abstr.  105;  4  Kent's  Cora.  258;  2  Washburn  on  Real  Prop. 
608. 

518 


CH.    XIV.]    CONTINGENT,  SPRINGING,  AND  SHIFTING  USES.         §   854 

is  a  cardinal  rule  in  the  construction  of  all  future  estates, 
whether  created  by  deed  or  will,  that  if  they  can  take  effect 
as  remainders  they  will  be  construed  to  be  such,  even  if  they 
are  limited  as  uses.^*  A  contingent  use  is,  therefore,  treated 
in  all  essential  particulars  as  a  contingent  remainder,  and  re- 
quires a  particular  estate  of  freehold  to  support  it.  If  the 
use  "is  not  vested  during  the  existence  of  the  particular  estate 
in  the  use,  it  fails  in  the  same  manner  as  if  it  had  been  limited 
as  a  common-law  contingent  remainder.  And  if,  at  the  time 
of  the  conveyance,  the  future  uses  can  take  effect  as  re- 
mainders, they  cannot  take  effect  as  future  or  executory  uses 
when  a  change  of  circumstances  has  made  them  void  as  con- 
tingent remainders.*"^  And  even  where  the  future  estate  is 
void  in  its  inception,  if  it  is  limited  by  way  of  a  remainder, 
as  where  the  vesting  of  the  future  use  is  made  to  depend  upon 
the  duration  of  a  particular  estate,  which  cannot  support  a 
contingent  remainder  because  it  is  less  than  n  freehold,  the 
future  use  will  be  void  as  a  remainder,  and  cannot  be  con- 
strued as  a  springing  or  shifting  use.*"  But  where  the  future 
use  is  not  made  to  depend  upon  a  preceding  use,  as  where 
it  is  to  vest  at  a  time  subsequent  to  the  natural  termination 
of  the  particular  use,  a  limitation  entirely  repugnant  to  the 
law  of  remainders,  it  will  be  held  to  be  a  shifting  or  springing 
use,  which  will  vest  independently  of  the  preceding  estate.*^ 

84  Co.  Lit.  217;  Fearne  Cont.  Rem.  284;  1  Prest.  Abstr.  108;  2 
Washburn  on  Real  Prop.  COO. 

85  Fearne  Cont.  Rem.  284,  and  Butler's  note;  2  Cruise  Dig.  261; 
Adams  v.  Savage,  Salk.  679 ;  s.  c.  2  Ld.  Raym.  854 ;  Goodtitle  v.  Billing- 
ton.  Dougl.  758;  Davies  r.  Speed,  Salk.  675.  But  see  Carroll  v.  Han- 
cock, .3  Jones  L.  471;  Nichols  v.  Denny,  37  Miss.  59. 

««  Adams  r.  Savage.  2  Ld.  Raym.  8.54;  Williams  on  Real  Prop.  293; 
Southsett  r.  Stowell,  1  Modern  238;  Cole  v.  Sewell,  4  Dru.  &  Warr.  27; 
Tud.  Ld.  Cas.  263;  4  Kent's  Com.  293;  2  Washburn  on  Real  Prop.  (ili. 
613.  Mr.  Washburn  cites  Wils.  Uses  9,  in  opposition  to  the  text.  2 
Washburn  on  Real  Prop.  621. 

•7  2  Washburn  on  Real  Prop.  621;  Gore  v.  Gore,  2  P.  Wms.  28. 


519 


§  356       CONTINGENT,  SPRINGING,  AND  SHIFTING  USES.     [PART  U. 

§  355.  Springing  uses. —  A  springing  use  is  one  to  com- 
mence in  the  future,  unsupported  by  the  limitation  of  a  pre- 
ceding use,  and  which  does  not  by  its  vesting  defeat  or  cut 
short  any  prior  limitation.  Thus,  a  limitation  to  the  use  of 
B.  and  his  heirs  after  the  death  of  A.  Until  the  death  of  A. 
the  use  results  to  the  grantor,  and  at  his  (A.'s)  death  it  is 
executed  in  B.  and  his  heirs.  A  springing  use  may  be  either 
vested  or  contingent,  according  to  the  certainty  or  uncertainty 
of  the  event  upon  which  it  depends.  The  example  given 
above  is  a  vested  springing  use,  as  A.  is  sure  to  die,  and 
the  use  takes  effect  whether  B.  dies  before  A.  or  survives  him ; 
but  a  limitation  to  the  heirs  of  B.  after  the  death  of  A,  would 
be  contingent,  because  of  the  uncertainty  of  B.'s  dying  be- 
fore A.** 

§  356.  Shifting  uses. —  A  shifting  or  secondary  use  is  one 
which  is  so  limited,  that  its  vesting  will  defeat  the  prior  es- 
tate in  the  use,  and  is  always  contingent.  The  use,  upon  the 
happening  of  the  event,  shifts  from  the  first  taker  to  the  sec- 
ond. It  has  been  explained  that  at  common  law  no  estate 
could  be  limited  after  a  fee  or  in  derogation  of  the  preceding 
estate.**"  But  there  is  no  such  restriction  upon  the  limitation 
of  uses.  The  use  in  fee  may,  upon  the  happening  of  succes- 
sive events,  be  made  to  shift  from  one  person  to  another  with- 
out limit,  provided  the  doctrine  of  perpetuity  is  not  thereby 
violated.  A  shifting  use  is,  therefore,  one  class  of  what  are 
called  conditional  limitations.  A  conditional  limitation  can 
only  be  created  under  the  Statute  of  Uses  or  the  Statute  of 
"Wills.  Under  the  former  it  is  known  as  a  shifting  use,  while 
under  the  latter  it  is  called  an  executory  devise.**"  The  dis- 
ss 2  Cruise  Dig.  263;  2  Washburn  on  Real  Prop.  600-613;  4  Kent's 
Com.  298;  Egerton  v.  Brownlow,  4  H.  L.  Cas.  206;  Mutton's  Case,  Dyer 
274;  Jackson  v.  Dunsbaugh,  1  Johns.  Cas.  96;  Wyman  v.  Brown,  50  Me. 
156;  McKee  v.  Marshall  (Ky.),  5  S.  W.  Rep.  415;  McCown  v.  King,  23 
S.  C.  232. 

89  See  ante,  Sees.  211,  296. 

»o  Fearne  Cent.  Rem.  385 ;  1  Spenee  Eq.  Jur.  452 ;  Egerton  v.  Brown- 

520 


CII.    XIV.]    CONTINGENT,  SPRINGING,  AND  SHIFTING  USES.        §  358 

tinction  between  a  future  limitation  as  a  conditional  limita- 
tion, and  a  contingent  remainder,  has  been  already  discussed,*^ 
and  will  require  no  further  elucidation. 

§  357.  Future  uses  in  chattel  interests. —  At  common  law 
it  is  impossible  to  create  a  remainder  in  a  chattel  interest. 
The  lessee  of  a  term  of  years  could  grant  a  part  of  the  term 
to  one  and  the  rest  to  another,  as,  for  example,  out  of  a  term 
of  thirty  years  he  could  assign  it  to  A.  for  ten  years  and  to  B. 
for  twenty  years,  beginning  at  the  close  of  A.'s  term.  But 
he  could  not  give  A.  a  life  estate  and  B.  a  remainder  in  fee.**- 
This  is  possible,  however,  by  way  of  a  future  use.  Where, 
therefore,  such  a  limitation  of  a  term  is  made  by  way  of  a 
use,  it  v/ill  not  take  effect  as  a  remainder,  but  as  a  springing 
or  shifting  use,  according  to  the  terms  of  the  limitation."^ 

§  358.  Shifting  and  springing  uses  —  How  defeated. —  At 
common  law  the  destruction  of  the  particular  estate  by  feoff- 
ment, or  other  act  of  the  tenant,  will  defeat  any  contingent 
remainder  depending  upon  it."*  And  such  is  also  the  rule 
in  regard  to  contingent  uses."^     But  no  act  of  the  tenant  of  a 

low,  4  H.  L.  Caa.  209;  2  Cruise  Dig.  264;  Co.  Lit.  271b,  note  231,  See. 
3;  Tud.  Ld.  Cas.  303;  VVinchelsea  v.  Wontworth,  1  Vein.  402;  2  Wash- 
burn on  Real  Prop.  622-624.  An  example  of  a  shifting  use,  would  be,  a 
limitation  to  A.  and  his  heirs,  and  if  B.  should  return  from  Rome, 
then  over  to  C.  and  his  heirs.  The  return  of  B.  from  Rome  would  de- 
termine the  use  in  A.  and  execute  the  use  in  C.  Cogan  v.  Cogan,  Cro. 
Eliz.  360;  Carwardine  v.  Carwardine,  1  Eden  34;  Winchelsea  V.  Went- 
worth,  supra;  Doe  v.  Whittingham,  4  Taunt.  22;  Buckworth  v.  Thirkell, 
3  B.  &  P.  655;  Battey  V.  Hopkins,  6  R.  I.  445;  Fogarty  V.  Stack 
(Tenn.),  8  S.  W.  Rep.  846. 

91  See  ante,  Sees.  211,  296,  310,  313, 

»2  1  Cruise  Dig.  235;  Fearne  Cont.  Rem.  401;  4  Kent's  Com.  270; 
Wright  r.  Cartwright,   1   Burr.  284. 

03  2  Bla.  Com.  174;  Fearne  Cont.  Rem.  401,  Butler's  note;  Lampet's 
Case,  10  Rep.  40;  Wright  f.  Cartwright,  1  Burr.  284;  2  Washburn  on 
Real  Prop.  624,  625. 

»*  See  ante,  Sec.  314. 

»»  Faber  V.  Police,  10  S.  C.  376.  And  see  cases  and  references  cited 
in  note  93. 

521 


§  358        CONTINGENT,  SPRINGING,  AND  SHIFTING  USES.  [PART  IT. 

preceding  estate  will  effect  the  destruction  of  a  springing  or  a 
shifting  use,  which  is  in  its  nature  independent  of  any 
prior  estate  which  may  be  had  in  the  use.""  It  was  formerly 
supposed  that,  if  the  tenant  of  the  particular  estate  was  dis- 
seised, in  order  that  the  contingent  use  might  be  executed, 
there  must  be  an  actual  entry  by  the  tenant  and  the  actual 
seisin  regained.  But  this  doctrine  has  been  repudiated  by  the 
best  authorities,  and  it  is  now  held  that  the  contingent  use 
would  vest  in  title,  whether  the  tenant  is  seised  or  has  been 
disseised,  and  that  the  contingent  cestui  que  use  acquires  the 
right  of  entry  by  the  force  of  the  Statute  of  Uses."^ 

90  2  Cruise  Dig.  281;  4  Kent's  Com.  241;  Tud.  Ld.  Cas.  263;  Archer's 
Case,  1  Rep.  67;  Chudleigh's  Case,  1  Rep.  120;  2  Washburn  on  Real 
Prop.  582,  583,  625,  626.     See  Ovvings  v.  Hill    (Ky.),  5  S.  W.  418. 

97  Fearne  Cont.  Rem.  286,  290,  295 ;  1  Kent's  Com.  242,  247 ;  1  Sug- 
den  on  Pow.  17-48;  2  Cruise  Dig.  282,  284;  Tud.  Ld.  Cas.  260;  Chud- 
leigh's Case,  1  Rep.  120;  Wegg  v  Villers,  2  Rolle.  Abr.  796.  This  last 
case  is  very  celebrated,  on  account  of  the  fact,  that  the  suit  was  brought 
on  the  settlement  by  Lord  Coke  of  his  property  upon  his  wife  and 
daughter.  The  following  is  the  account  given  of  the  case  by  Mr.  Wash- 
burn, which  is  here  appended,  because  a  thorough  appreciation  of  the 
fine  points  of  the  case  involves  an  accurate  knowledge  of  the  principles 
enunciated  in  the  preceding  pages.  "  The  circumstances  under  which  it 
(the  case  of  Wegg  V.  Villers)  arose  were  these,  as  stated  by  the  biog- 
rapher of  Lord  Coke.  The  relations  of  Lord  Coke  with  his  wife,  Lady 
Hatton,  it  is  well  known,  were  not  of  the  most  pleasant  kind.  Coke 
having  fallen  into  disgrace  with  King  James,  while  acting  as  Lord 
Chief  Justice,  sought  to  regain  the  favor  of  that  weak  and  capricious 
monarch,  and  it  was  through  the  agency  of  Buckingham,  who  was,  at 
the  lime,  the  King's  favorite,  that  he  sought  to  operate  upon  the  King. 
Buckingham  had  a  brother.  Sir  John  Villers,  and  Coke  a  daughter, 
Frances,  by  Lady  Hatton,  and  he  proposed  a  match  between  them.  The 
mother,  angry  at  not  having  been  consulted  in  the  matter,  carried  her 
daughter  off,  and  secreted  her.  Coke,  discovering  her  place  of  conceal- 
ment, went  with  his  sons  and  seized  her  by  force.  Lady  Hatton  ap- 
pealed to  the  Privy  Coiinoil,  and  it  became  an  affair  of  state.  It  was 
at  length  adjusted,  upon  Lord  Coke's  paying  £10,000  sterling,  and  en- 
tering into  articles  of  settlement  upon  the  marriage  of  his  daughter, 
pursuant  to  articles  and  directions  of  the  Lords  of  the  Council.  The 
adroitness  with  which  this  settlement  was  drawn,  and  the  cunning  man- 
ner in  which  he  arranged  its  provisions,  so  as  to  defeat  it  or  let  it  stand 
good  as  he  might  choose,  will  be  perceived  by  recurring  to  its  terms. 


CH.    XrV.]     CONTINGENT,  SPRINGING  AND  SHIFTING  USES.        §  358 

and  remembering  and  applying  the  idea  advanced  in  Chudleigh's  Case, 
that  the  uses,  so  far  as  contingent,  mlrst  have  an  actual  seisin  in  some 
one,  answering  to  a  feoffee's,  to  sustain  them.  In  the  first  place,  the 
conveyance  was  made  by  covenant  to  stand  seised  on  his  part,  and  the 
limitations  derived  their  force  and  effect  from  the  seisin  in  himself, 
for  he  covenanted  to  stand  seised  to  the  use  of  himself  for  life,  re- 
mainder to  the  use  of  his  wife  for  life,  remainder  to  the  use  of  his 
daughter  for  life,  remainder  to  her  first  and  other  sons  in  tail,  rever- 
sion to  his  own  right  heirs.  This  gave  an  estate  to  him  for  life  in  pos- 
session, a  vested  estate  for  life  in  remainder  to  his  wife,  and  the  same 
to  his  daughter  for  life  in  remainder,  with  contingent  uses  by  way  of 
remainder  to  unborn  sons  in  tail,  reserving  to  himself,  after  and  above 
all  these  limitations,  a  reversion  in  fee.  Lord  Coke  then  made  a  deed 
of  grant  of  this  reversion  to  a  third  'person  without  consideration,  and 
in  his  deed  recited  the  foregoing  settlement.  He  then  made  a  feoff- 
ment in  fee  of  the  lands  thus  settled,  with  livery  of  seisin.  As  all  the 
estates  but  the  reversion  were  by  way  of  use,  it  was  the  seisin  that  was 
in  him  as  covenanter  and  reversioner  which  was  to  support  them,  and 
if  this  was  destroyed,  so  far  as  these  were  contingent,  they  would  be 
defeated.  But  as  his  grant  of  this  reversion  was  to  one  having  notice, 
it  remained  subject  to  the  settlement,  and  the  seisin  of  this  grantee  was 
that  out  of  which  these  uses  were  to  arise  in  the  same  way  as  from  the 
seisin  which  Lord  Coke  had  had  before  the  grant.  But  as  he  was  also 
in  possession  for  life,  the  effect  of  his  feoffment  was  not  only  to  destroy 
his  own  seisin  and  estate,  but  to  make  a  discontinuance  of  that  of  his 
grantee  the  reversioner,  together  with  the  estates  of  the  wife  and 
daughter.  But  it  left  a  right  of  entry  in  tlie  daughter.  But  as  this 
discontinuance  was  a  forfeiture  of  the  father's  life  estate,  and  that  of 
his  wife  during  coverture,  it  gave  a  right  of  entry  in  the  daughter  as 
holder  of  the  next  vested  estate,  and  a  contingent  right  of  entry  to  the 
wife,  dependent  on  her  surviving  her  husband.  The  former  was  suffi- 
cient to  support  the  contingent  use  to  the  daiighter's  first  son,  pro- 
vided there  should  be  a  seisin  to  serve  such  use,  when  it  should  arise. 
As  it  turned  out.  Lord  Coke's  wife  survived  him,  and  having,  by  the 
right  of  entry  which  she  thereby  acquired,  entered  upon  the  estate, 
reinstated  the  divested  estates,  including  that  of  the  grantee  of  the  re- 
version, out  of  whose  seisin  the  contingent  uses  were  to  arise,  and  the 
limitations  took  effect  in  their  order.  If,  however,  Lord  Coke  had 
made  his  feoffment  before  making  the  grant  of  the  reversion,  the  effect 
would  have  been  to  have  worked  a  disseisin  and  divested  all  of  the  then 
subsisting  estates,  including  the  estate  or  seisin  out  of  which  the  con- 
tingent uses  were  to  arise,  and  which  was  to  serve  them.  For  as  there 
was  no  privity  between  his  feoffee,  his  wife  or  daughter  and  his  heirs, 
whose  seisin  alone  could  support  their  contingent  uses,  no  entry  by  the 
wife  or  daughter  could  restore  the  estate  and  seisin  of  Lord  Coke  or  his 

523 


§    359         CONTINGENT,  SPRINGING,  AND  SHIFTING  USES  [PART   II. 

§  359.  Incidents  of  springfing  and  shifting  uses. —  All  such 
uses  are  capable  of  being  disposed  of  in  equity  by  assignment 
or  by  will,  and  they  descend  to  the  heirs  of  the  cestui  que  use, 
and  this,  too,  when  the  use  is  contingent,  provided  the  con- 
tingency does  not  depend  upon  the  uncertainty  of  the  cestui 
que  use.  But  they  cannot  be  aliened  by  deed.**®  Where  a 
springing  use  is  vested,  since  the  statute  executes  it  eo  in- 
stanti,  it  becomes  a  future  legal  estate  with  all  the  ordinary 
rights  attaching  thereto.  Such  a  use  can  be  disposed  of  in 
any  manner  of  which  a  legal  vested  estate  is  capable.  For  the 
protection  of  the  interests  of  these  cestuis  que  use  against  any 
acts  of  waste  by  the  prior  tenant,  the  rules  of  the  common  law 
in  respect  thereto  apply  by  analogy,  and  chancery,  upon  the 
application  of  the  cestui  ^que  use,  would  restrain  the  com- 
mission of  waste  just  as  if  his  estate  had  been  a  contingent 
remainder."®  Springing  and  shifting  uses  are,  in  their  char- 
acteristics, essentially  the  same  as  executory  devises,  differing 
only  in  the  manner  of  their  creation ;  it  would  be  a  mere  repe- 
tition, therefore,  to  discuss  their  incidents  separately,  beyond 
what  has  been  said.  This  subject  will  be  resumed  under  the 
head  of  executory  devises.^ 

heirs,  contrary  to  his  own  feoffment,  since  he  himself  could  'not  have 
entered  against  such  a  foofTment.  Now  the  cunning  part  of  the  ar- 
rangement, which  was  defeated  by  his  dyirig  while  things  were  in  the 
above  state,  was  this.  If  he  had  seen  fit  to  sustain  the  remainders,  he 
would  have  suppressed  the  feoffment,  and  only  have  shown  the  grant 
of  the  reversion,  to  counteract  the  feoffment,  if  that  should  be  set  up 
by  any  one.  Whereas  if  he  had  wished  at  any  time  to  destroy  the  re- 
mainders, he  would  have  suppressed  the  grant  of  the  reversion,  and  left 
the  feoffment  to  have  its  effect.  As  he  left  both  these  in  force,  it  gave 
rise  to  the  action  above  named,  and  an  indefinite  amount  of  refinement 
and  ingenious  discrimination  upon  a  rule  of  law  too  subtle  to  be  ap- 
prehended by  ordinary  minds."     2  Washburn  on  Real  Prop.  529-031. 

»8Fearne  Cont.  Rem.  366,  and  Butler's  note;  Jones  v.  Roe,  3  T.  R. 
88;  Hobson  r.  Trevor,  2  P.  Wms.  191;  2  Washburn  on  Real  Prop.  626. 

»o  Fearne  Cont.  Rem.  362,  ^nd  Butler's  note;  Stansfield  v.  Habergram, 
10  Ves.  275;  2  Washburn  on  Real  Prop.  626. 

1  See  post,  Ch.  15,  Sees.  395-398,  400-402. 

524 


SECTION  IV. 

TRUSTS. 

Section  360.  What  are  trusts. 

361.  Active  and  passive  trusts. 

362.  Executed  and  executory  trusts. 

363.  Express  trusts. 

364.  Implied,   resulting,  and   constructive   trusts. 

365.  Implied  trusts. 

366.  Resulting  trusts, 

367.  Same  —  Payment  of  consideration. 

368.  Constructive  trusts. 

369.  Interest  of  the  cestui  que  trust. 

370.  Liability  for  debts. 

371.  Words  of  limitation. 

372.  Doctrine  of  remainders  applied  to  trusts. 

373.  How  created  and  assigned. 

374.  Statute  of  Frauds. 

375.  How  affected  by  want  of  a  trustee. 

376.  Removal  of  trustees. 

377.  Refusal  of  trustee  to  serve. 

378.  Survivorship. 

379.  Merger  of  interest. 

380.  Rights  and  powers  of  trustees. 

381.  Rights  and  powers  of  cestuis  que  tru3t. 

382.  Alienation  of  trust  estate. 

383.  Liability  of  third  persons  for  performance  of  the  trust. 

384.  Compensation  of  trustee. 

§  360.  What  are  trnsts?  — The  Statute  of  Uses  makes  use 
of  the  words  "use,  confidence,  and  trust,"  and  recognizes  no 
distinction  between  them,  and  before  the  statute  there  was,  as 
has  been  shown,^  no  material  difference  between  them,  and 
such  would  have  been  the  case  in  modern  times  if  the  statute 
had  prevented  the  continued  existence  of  equitable  estates,  in 
conformity  with  the  design  and  intention  of  the  legislators. 

2  See  ante,  Sec.  327. 

525 


§   361  TRUSTS.  [part   II. 

But  the  statute  was  construed  to  have  no  effect  upon  certain 
enuitable  interests,''  which  remained  equitable  and  distinct 
from  the  legal  estate  after  as  well  as  before  the  statute.  For 
the  sake  of  convenience,  and  the  purpose  of  distinguishing 
them  from  those  uses  and  trusts  which  were  executed  by  the 
statute,  the  term  trust  has  since  been  exclusively  applied 
to  those  equitable  interests,  which  remain  such,  while  the 
term  use  represents  all  such  interests  as  are  converted  into 
legal  estates,  either  eo  instanti  or  subsequently,  as  in  the 
case  of  contingent  uses.* 

5  361.  Active  and  passive  trusts. —  Where  a  special  duty 
is  to  be  performed  by  the  trustee  in  respect  to  the  estate,  such 
as  to  collect  the  rents  and  profits,  to  sell  the  estate,  etc.,^  the 
trust  is  called  active.  It  is  the  duty  which  prevents  the 
operation  of  the  statute,  for  the  trustee  must  have  the  legal 
estate  in  order  to  perform  his  duties."  All  other  trusts  are 
denominated  passive  trusts,  because  there  is  no  duty  impos(^d 
upon  the  trustee.  He  simply  acts  as  a  reservoir  of  the  legal 
estate,  because  from  the  terms  and  character  of  the  convey- 

3  See  ante,  Sec.  349. 

4  1  Spence  Eq.  Jur.  491,  493,  494;  1  Prest.  Est.  186-190;  Tud.  Ld. 
Cas.  268-276;  2  Bla.  Com.  336;  Doe  v.  Hamfrey,  6  A.  &  E.  206;  Doe  v. 
Biggs,  2  Taunt.  169;  Doe  V.  Collier,  11  East  377;  4  Kent's  Com.  314; 
Ayer  v.  Ayer,  16  Pick.  327-330;  Fisher  v.  Fields,  10  Johns,  505;  2 
Pom,  Eq.  Jur.  Sees.  984-086.  "  A  trust  for  the  sole  benefit  of  the  trus- 
tees' children,  under  which  the  trustees  were  charged  with  no  functions 
except  to  hold  the  property  for  the  children,  became,  at  the  maturity 
of  the  children,  a  dry  trust,  executed  by  the  statute  of  uses,  and  the 
legal  title  was  vested  in  the  beneficiaries."  Ottomeyer  v.  Pritchett  (Mo. 
1903),  77  S.  W.  Rep.  62. 

6  1  Cruise  Dig.  384;  Co.  Lit.  290  b,  249;  Sec.  6;  Tud.  Ld.  Cas.  270;  1 
Prest.  Abst.  143;  Sherman  v.  Dodge,  28  Vt.  26;  Aiken  v.  Smith,  1 
Sneed.  304;  Welles  v.  Castles,  3  Gray  323;  Ackland  v.  Lutley,  9  A.  & 
E.  879;  Douglass  v.  Cruger,  80  N.  Y.  15;  Culbertson's  App.,  76  Pa.  St. 
145;  Brooks  v.  Marbury,  11  Wheat.  78;  William's  Appeals,  83  Pa.  St. 
377 ;  Appeal  of  Watson,  125  Pa.  St.  340 ;  McClellan's  Appeals,  130  Pa. 
St.  451;  Grothe's  Appeal,  26  W.  N.  C.  265;  Ruby's  Appeal  (Pa.),  11 
Atl.  Rep.  398. 

6  See  authorities  cited  in  preceding  note. 
526 


CH,    XIV.]  TRUSTS.  §  362 

ance  and  limitation  the  statute  cannot  transfer  the  legal  estate 
to  the  cestui  que  use  or  trust.  Such  would  be  a  use  upon  a 
use,  a  use  in  chattel  interest,  and  uses  to  persons  incapable 
of  holding  the  legal  estate — for  example,  married  women.^ 

§  362.  Executed  and  executory  trusts. —  Where  the  limita- 
tions are  all  definitely  settled  by  the  deed  of  creation,  and 
there  is  nothing  further  to  be  done  in  order  to  determine  the 
exact  interest  of  the  cestui  que  use  and  the  duration  of  the 
trust,  the  trust  is  said  to  be  executed.  But  where  the  terms 
of  the  trust-deed  simply  define  how  the  settlement  shall  be 
made,  and  imposes  that  duty  upon  the  trustee,  the  trust  is 
called  executory.  All  passive  trusts  and  such  active  trusts, 
in  which  the  duty  of  the  trustee  is  confined  to  the  ordinary 
administration  of  the  property,  are  executed  trusts,  while 
active  trusts,  in  which  it  is  the  duty  of  the  trustee  to  convey 
to  the  person  named,  or  to  determine  the  shares  which  several 
shall  take,  and  the  like,  are  comprehended  under  the  head 
of  executory  trusts.  Executory  trusts  bear  a  close  resem- 
blance to  powers  when  granted  to  trustees,  to  which  more 
particular  reference  will  be  made  in  the  treatment  of  that 
subject.* 

7  Doe  V.  Passingham,  6  B.  &  C.  305;  Doe  v.  Collier,  11  East  377; 
Hayes  V.  Tabor,  41  N.  H.  521;  Kuhn  V.  Newman,  26  Pa.  St.  227;  Steacy 
V.  Rice,  27  Pa.  St.  75;  Webster  r.  Cooper,  14  How.  488;  WagstaiT  v. 
Smith,  9  Ves.  520;  Boyd  V.  England,  56  Ga.  508;  Sutton  v.  Aiken,  62 
Ga.  733;  Bolles  v.  State  Trust  Co.,  27  N.  J.  308;  Rogers  Loc.  Works 
r.  Kelly,  19  Hun  399;  Weber  v.  Weber,  58  How.  Pr.  255;  Martin  V. 
Funk,  75  N.  Y.  134;  Boone  v.  Bank,  84  N.  Y.  83;  Badgett  v.  Keating, 
31  Ark.  400. 

8  It  will  be  observed  that  the  terms  executed  and  executory,  when  ap- 
plied to  modern  trusts,  have  a  different  significance  from  that  which 
is  given  to  them,  in  .referring  to  the  operation  of  the  Statute  of  Uses 
upon  uses.  Fearne  Cont.  Rem.  55,  113,  139;  4  Kent's  Com.  304,  305. 
Mr.  Lewin  defines  these  classes  of  trusts  thus :  "  Trusts  executed  are 
where  the  limitations  of  the  equitable  interest  are  complete  and  final; 
in  the  trust  executory,  the  limitations  of  the  equitable  interest  are  not 
intended  to  be  complete  or  final,  but  merely  to  serve  as  minutes  and 
instructions  for  perfecting  the  settlement  at  some  future  period."     Lewin 

527 


§  364  TRUSTS.  [part  11. 

§  363.  Express  trusts. —  All  the  trusts,  which  have  been 
heretofore  discussed,  receive  the  further  appellation  of  express 
trusts,  because  they  are  expressly  created  by  some  deed  or 
other  instrument  of  conveyance,  and  are  to  be  distinguished 
from  those  trusts,  which  are  explained  in  the  succeeding  para- 
graphs, and  which  aris6  by  operation  of  law  for  the  prevention 
of  injury  and  the  furtherance  of  justice.  Express  trusts  are 
created  by  the  express  act  of  the  party  owning  the  property. 
And  it  may  be  stated  here  that  the  law  will  never  imply  a 
trust  where  one  has  been  created  expressly,  even  though  the 
express  trust  is  void  for  the  want  of  some  essential  formality, 
unless  the  consideration  is  paid  by  the  cestui  que  trust  under 
such  circumstances  as  to  give  rise  to  a  resulting  trust.** 

§  364.  Implied,  resulting,  and  constructive  trusts. —  Trusts 
which  arise  by  implication  of  law  are  subdivided  by  the  books 
into  implied,  resulting,  and  constructive  trusts.  These  names 
are  purely  arbitrary,  and  do  not  convey  to  the  mind  any 
idea  of  the  distinguishing  feature  of  the  trusts  which  they 
respectively  represent.     All  trusts  created  by  operation  of 

on  Tr.  45;  2  Pom.  Eq.  Jur.,  Sees,  1000,  1001;  Saunders  v.  Edwards,  2 
Jones  Eq.  134;  Gushing  v.  Blake,  30  N.  J.  689;  1  Eq.  Ld.  Cas.  1-36; 
Neves  V.  Scott,  9  How.  211;  Bowen  V.  Chase,  94  U.  S.  812;  Riddle  v. 
Cutter,  49  Iowa  547;  Tallman  v.  Wood,  26  Wend.  9;  Garnsey  v.  Mundy, 
24  N.  J.  243 ;  Garner  v.  Garner,  1  Deems  437 ;  Farr  v.  Gilreath,  23  S. 
C.  502.  "  In  order  to  create  a  trust,  there  must  be  an  absolute  parting, 
on  the  part  of  the  settlor,  with  the  interest  which  had  been  his  up  to 
the  time  of  the  declaration  of  the  trust,  and  a  specific  property  to  be 
held  by  the  trustee."  Taylor  v.  Coriell  (N.  J.  Ch.  1904),  57  Atl.  Rep. 
810. 

9  1  Spence  Eq.  Jur.  496 ;  2  Washburn  on  Real  Prop.  436.  437 ;  2  Pom. 
Eq.  Jur.,  Sees.  987,  1030;  Farrington  v.  Barr,  36  N.  H.  86;  Gibson  v. 
Foote,  40  Miss.  782;  Graves  V.  Graves,  29  N.  Y.  129;  Nightingale  V. 
Hidden,  7  R.  I.  121;  Haggard  v.  Benson,  3  Tenn.  Ch.  268;  Ward  V. 
Armstrong,  84  111.  151.  "  An  express  trust  pertaining  to  real  estate 
must,  in  the  absence  of  fraud,  be  evidenced  by  some  memorandum 
thereof,  signed  by  the  party  to  be  charged  therewith."  Prouty  i'.  Moss 
(111.  App.  1903),  111  111.  App.  536.  "So  long  as  an  express  trust 
exists,  and  is  recognized  by  the  trustee,  it  never  becomes  stale."  Ows- 
ley V.  Owsley  (Ky.  1903),  77  S.  W.  Rep.  394. 
528 


CH.    XIV.]  TRUSTS.  §  365 

law  may  be  said  to  be  implied  or  constructive,  while  the  use 
of  the  word  resulting  serves,  perhaps,  to  confound  these 
trusts  with  resulting  uses.  But  it  is  convenient  to  make  use 
of  this  subdivision,  and  for  the  want  of  better  terms,  these 
are  employed  to  denote  the  three  classes.  Trusts  created  by 
operation  of  law  cannot  be  executed  by  the  Statute  of  Uses. 
They  are  not  recognized  by  courts  of  law.  They  are  the  crea- 
tions of  equity,  and  are  applied  by  the  court  of  equity  to  all 
inequitable  transactions  where  the  ends  of  justice  cannot  be 
otherwise  attained.^"  But  such  trusts  cannot  be  enforced 
against  the  property,  after  it  has  passed  into  the  hands  of  a 
bona  fide  purchaser  for  value." 

§  365.  Implied  trusts. —  "Whenever  the  owner  of  land  di- 
rects a  certain  disposition  of  it,  which  is  to  inure  to  the 
benefit  of  a  third  person  without  expressly  creating  a  trust  in 
his  behalf,  under  the  maxim  that  equity  treats  that  as  done 
which  ought  to  be  done,  a  trust  will  be  implied  in  behalf  of 
such  beneficiary.  Thus,  if  the  testator  directs  his  lands  to 
be  sold  for  the  satisfaction  of  his  debts,  an  implied  trust  is 
raised  in  favor  of  the  creditors  which  will  enable  them  to 
compel  a  performance  of  the  trust  by  the  executor.  This 
implied  trust  was  specially  valuable  in  the  days  when  real 
property  was  not  liable  for  the  debts  of  the  owner.^^  An- 
other well-known  application  of  the  doctrine  is  the  case  of 
equitable  conversion,  so-called.  When  a  contract  for  the 
sale  of  real  property  is  made  for  a  valuable  consideration,  and 
it  is  evidenced  by  an  instrument  in  writing,  equity  will,  by 

10  2  Washburn  on  Real  Prop.  437;  2  Pom.  Eq.  Jur.,  Soc.  10.30;  1 
Spence  Eq.  Jur.  496;  1  Prest.  Est.  lUl;  Nightingale  r.  Hidden,  7  R.  I. 
121  ;  Thompson  r.  Peake,  7  Rich.  Sii,*?,  and  cases  cited  in  subsequent  notes. 

11  Kearney  v.  Fleming,  10  N.  Y.  S.  169. 

1-  1  Spence  Eq.  Jur.  .509;  2  Washburn  on  Real  Prop.  4.38.  This  species 
of  trust  is,  however,  really  an  express  trust,  although  it  arises  by  con- 
struction, and  is  not  strictly  created  by  express  limitation.  2  Pom. 
Eq.  Jur.,  Sec.  1010.  See  Walker  r.  Whiting,  2.3  Pick.  313;  Fay  r.  Taft, 
12  Cush.  448;  Randolph  v.  Randolph,  40  N.  J.  Eq.  73. 

34  529 


§365  TRUSTS.  [part   II. 

raising  an  implied  trust  in  favor  of  the  vendee,  treat  the 
vendor  as  his  trustee  in  respect  to  the  land  to  be  conveyed, 
and  the  trust  will  be  enforced  by  a  decree  for  specific  per- 
formance.*'' And  so  settled  is  the  fiduciary  character  of  the 
relation  of  vendor  and  vendee  under  an  executory  contract 
of  sale,  that  the  vendee  may  enjoin  the  vendor  from  the  com- 
mission of  waste."  This  trust  may,  as  well,  be  enforced 
against  the  subsequent  purchaser  from  the  vendee,  with  no- 
tice of  the  prior  contract  of  sale.*''  At  this  point  attention 
should  be  given  to  an  apparent  contradiction.  The  implied 
trust,  just  explained,  which  arises  from  an  executory  contract 
for  the  sale  of  land,  is  held  to  be  beyond  the  operation  of  the 
Statute  of  Uses,^"  so  that  the  cestui  que  trust,  or  executory 
vendee,  would  never  acquire  the  legal  title  to  the  land,  unless 
the  trust  is  enforced  by  a  decree  for  specific  performance  of 
the  executory  contract  of  sale.*^  In  a  previous  paragraph,*' 
where  the  creation  of  uses  by  simple  declarations  is  explained, 
it  is  stated  that  "Equity  always  construed  a  contract  of  sale 
or  agreement  to  convey  as  a  declaration  to  uses,  and  would 
enforce  it  if  the  requisite  consideration  was  present."     That 

13  1  Spence  Eq.  Jur.  509;  Jackson  V.  Morse,  16  Johns.  197;  Coman 
V.  Lakey,  80  N.  Y.  345;  Pelton  r.  Westchester  Fire  Ins.  Co.,  77  N.  Y. 
605;  Musham  V.  Musham,  87  111.  80;  Felch  v.  Hooper,  119  Mass.  52; 
Coffer  V.  Argo  (111.),  24  N.  E.  Rep.  1068;  Greene  v.  Brooks,  81  Cal. 
328.  But  there  must,  of  course,  be  a  written  agreement  of  sale  to 
satisfy  the  Statute  of  Frauds,  or  such  a  part  performance  as  will  take 
the  case  out  of  the  statute.  Harris  V.  Barnett,  3  Graft.  339;  Hill  V. 
Meyers,  43  Pa.  St.  170;  Phillips  v.  Thompson,  1  Johns.  Ch.  131;  Ryan 
V.  Dox.  34  N.  Y.  312;  3  Washburn  on  Real  Prop.  215.  An  implied  trust 
will  also  arise  in  favor  of  partnership-creditors  in  respect  to  the  part- 
nership property,  when  the  insolvency  of  a  firm  or  of  its  members 
creates  a  contention  of  interests  between  the  partnership  creditors  and 
the  creditors  of  the  individual  partners.  Hastings  V.  Drew,  76  N.  Y.  9; 
Bartlett  v.  Drew,  57  Id.  587;  Murray  V.  Murray,  5  Johns.  Ch.  60. 

1*  Moses  V.  Johnson,  88  Ala.  517. 

isMcWhinn  v.  Martin   (Wis.),  46  N.  W.  Rep.  118. 

18  See  ante.  Sec.  364. 

17  See  supra. 

18  See  ante,  Sec.  330. 

530 


CH.    XIV.]  TRUSTS.  §  365 

is,  equity  would  treat  a  bargain  and  sale  of  lands  as  the 
express  creation  of  a  use,  which  could  be  executed  into  a 
legal  estate  by  the  Statute  of  Uses,  if  the  use  so  created  did 
not  come  within  one  of  the  five  classes  of  cases,  in  which  the 
statute  did  not  operate.^^  Wherever  the  English  statute  of 
enrollment  is  in  force,  no  use  created  by  bargain  and  sale 
can  be  executed  by  the  Statute  of  Uses,  unless  it  be  created 
by  deed  sealed  and  recorded.  In  England,  therefore,  a  use 
created  by  a  bargain  and  sale,  which  did  not  conform  to  the 
requirements  of  the  Statute  of  Enrollment,  would  be  de- 
nominated an  implied  trust,  which  could  be  enforced  only  by 
a  decree  for  specific  performance.  But  this  distinction  be- 
tween these  two  classes  of  equitable  estates  only  obtains  where 
the  mode  of  creating  uses  by  simple  declarations  is  regulated 
by  statute,  beyond  the  requirement  of  the  Statute  of  Frauds, 
that  it  should  be  manifested  in  writing.  "Where  there  is  no 
such  regulation  of  the  creation  of  uses,  the  executory  bargain 
and  sale  would  be  expected,  and  according  to  one  set  of 
authorities  it  is  held  to  create  a  use  which  could  be  executed 
into  a  legal  estate;  but  according  to  the  second  and  more 
numerous  as  well  as  more  modern  set  of  cases,  it  would  be 
an  implied  trust,  which  would  remain  an  equitable  estate 
until  the  trust  is  enforced  by  a  decree  for  specific  perform- 
ance. There  is  but  one  way  to  reconcile  these  otherwise  con- 
flicting decisions,  apart  from  the  historical  explanation,  that  it 
is  a  meaningless  survival  or  adoption  of  a  distinction  which 
was  caused  by  the  provisions  of  the  statute  of  enrollment,  but 
which  now,  in  the  absence  of  such  statutory  regulations,  serves 
only  to  create  confusion,  viz. :  that  the  character  of  the  equi- 
table estate  created  by  a  bargain  and  sale  would  depend  upon 
the  intention  of  the  parties  in  making  the  bargain  and  sale. 
If,  in  executing  the  written  contract  of  sale,  the  intention  was 
to  pass  an  absolute  title,  the  equitable  estate  of  the  vendee 
would  be  a  use  and  not  an  implied  trust:  and  if  the  intention 
of  the  parties  was  to  make  the  bargain  and  sale  only  pre- 
10  See  Sees.  346,  542. 

531 


!!  :166  TRUSTS.  [part  n. 

liniinary  to  a  specific  and  more  formal  f-.rformance,  then 
the  bargain  and  sale  creates  an  imp  led  trust  and  not  a  use.^" 

§  366.  !Restllting  trusts. —  These  trusts  arise  in  two  prin- 
ci]>nl  eases:  First,  where  onlv  a  part  of  the  trust  is  declared, 
and  the  result  remains  undisposed  of.  In  such  a  case  there 
is  a  resulting  trust  in  favor  of  the  grantor.  Resulting  trusts 
of  this  class  are  such  as  result  to  the  grantor,  but  which,  on 
account  of  the  terms  of  the  :onveyance,  cannot  be  executed 
as  uses.  "Where  the  statute  2an  operate,  the  equitable  in- 
terest is  a  resulting  use,  and  becomes  a  legal  estate  under 
the  sti^ute.  Resulting  interests  in  chattels,  held  in  trust, 
are  resulting  trusts,  and  not  resulting  uses.^^  Thus  in  the 
devise  of  an  income  to  one,  when  he  becomes  of  ape,  there 
is  a  resulting  trust  in  the  immediate  income  to  the  d'^visor's 
heirs;  or  where  property  is  direct ?d  to  be  sold  for  certain 
purposes,  and  the  proceeds  are  more  than  sufficient  f^r  the 
purposes  of  the  trust,  there  is  a  resulting  trust  in  the  surplus 
to  the  heirs  of  the  devisor.--  There  is  also  a  resulting  trust 
in  favor  of  the  grant;  r  and  his  heirs  where  the  purposes  of 

-"  .'-!ee  Hanks  v.  Foi'om,  11  Lea  555,  opinion  by  Chancellor  Cooper, 
citing  Beecher  V.  Hicks,  7  Lea  ^11;  Carnes  v.  Apperson,  2  Sneed  562; 
Topp  r.  White,  12  Heisk.  165,  173;  Anderson  v.  Clears,  7  Heisk.  667; 
Lafferty  r.  Whitesides,  1  Swan.  123. 

21  They  are  called  resulting  trusts,  because  they  cannot  be  executed 
by  the  statute.  In  every  other  respect  they  are  like  resulting  uses,  and 
will  arise  only  under  such  circumstances  as  would  cause  a  resulting 
use  in  the  freehold  estate.  A  resulting  trust  in  a'  chattel  only  arises 
when  there  is  no  consideration  to  the  grantor  and  no  consideration  ex- 
pressed in  the  grant.  For  the  particular  cases  in  which  there  will  be  a 
resulting  use  and,  if  it  be  a  chattel  interest,  a  resulting  trust,  see  ante, 
Sec.  329. 

22  Lloyd  V.  Lloyd,  L.  R.  7  Eq.  458;  Longley  r.  Longley,  L.  R.  13  Eq. 
133;  Hogan  v.  Jaques,  19  N.  J.  Eq.  123;  Loring  V.  Elliot,  16  Gray, 
.568;  Hogan  V.  Stayhorn,  65  N.  C.  279;  McCallister  v.  Willey.  52  Ind. 
382;  Trapnall  v.  Brown,  19  Ark.  39;  Pouce  v.  McElroy,  47  Cal.  154; 
Kennedy  v.  Nunan,  .52  Cal.  326;  Edinger  v.  Heiser,  62  Mich.  598; 
Schlessinger  v.  Mallard,  70  C^l.  326;  Ball  v.  Gaff  (Ky.),  1  S.  W.  Rep. 
724;  Buffington  r.  Maxam,  152  Mass.  477. 

532 


CH.    XIV.  J  TRUSTS.  §   Sbi 

the  express  trust  have  failed,  from  whatever  cause  the  failure 
may  arise.  Thus,  if  the  trust  be  to  appoint  the  estate  in 
favor  of  a  certain  person,  and  the  trustee  fails  to  appoint,  or 
the  person  dies  before  appointment,  the  trust  will  result  to  the 
grantor.'*^  The  trustee  will  in  none  of  these  cases  enjoy  the 
trust,  even  though  a  nominal  consideration  be  mentioned  in 
the  deed.  Nothing  will  prevent  the  resulting  of  the  trust 
to  the  grantor  but  the  payment  of  an  adequate,  or  at  least 
substantial,  consideration.-*  The  nominal  consideration  will 
prevent  the  resulting  of  such  a  use  as  will  be  executed  by  the 
statute,  but  will  have  no  effect  upon  the  resulting  trust. 

§  367.  Same  —  Payment  of  consideration. —  The  second  class 
of  resulting  trusts  includes  -those  cases  in  which  the  estate 
is  purchased  in  the  name  of  one  person  and  the  consideration 
is  paid  by  another.  But  two  circumstances  must  concur  in 
order  that  a  trust  may  result  to  the  one  paying  the  considera- 
tion :  First,  the  execution  of  the  deed  in  the  name  of  the 
one  person  must  be  the  result  of  some  fraud,  accident,  or  mis- 
take. Or,  if  it  is  done  with  the  knowledge  and  consent  of  the 
person  paying  the  consideration,  his  intention  that  he  should 
have  the  beneficial  interest  in  the  estate  must  be  clearly  es- 
tablished.^"*    The  payment  of  the  consideration  and  the  in- 

23  1  Cruise  Dig.  375,  394;  Ashhurst  v.  Givens,  5  Watts  &  S.  327; 
Sturtevant  r.  Jaques,  14  Allen  523;  Shaw  V.  Spencer,  100  Mass.  382; 
Nichols  V.  Allen,  130  Mass.  211;  Oliffe  v.  Wells,  130  Mass.  221;  Power 
V.  Cassidy,  79  N.  Y.  602;  Stansfield  r.  Habergham,  10  Ves.  273;  Pratt 
V.  Miller,  23  Neb.  496 ;  Parker  v.  McMillan,  55  Mich.  265. 

2*  1  Spence  Eq.  Jur.  467;  2  Washburn  on  Heal  Prop.  438;  2  Pom.  Eq. 
Jur.,  Sec.  1033.    See  Clark  v.  Hershey,  52  Ark.  473. 

26  Dyer  f.  Dyer,  2  Cox  92;  1  Eq.  Ld.  Cas.  314;  Lloyd  v.  Read,  1  P. 
Wms.  607;  Withers  V.  Withers,  Anibl.  151;  Rider  V.  Kidder,  10  Ves. 
360;  Mediner  r.  Medmer,  26  N.  J.  Eq.  269;  Smith  v.  Patton,  12  W.  Va. 
641;  Lee  V.  Browder,  51  Ala.  288;  Thomas  v.  Standiford,  49  Md.  181; 
Tilford  t:  Torrey,  53  Ala.  120;  Cunningham  v.  Bell,  83  N.  C.  328; 
Kelley  v.  Jenness,  50  Me.  455;  Hopkinson  t\  Dumas,  42  N.  H.  306; 
Nixon's  App.,  63  Pa.  St.  279;  Clark  f.  Clark,  43  Vt.  685;  Boyd  r.  Mc- 
Lean, 1  Johns.  Ch.  582;  Brooks  v.  Shelton,  54  Miss.  353;  Hampson  v. 
Fall,  64  Ind.  382;  Duval  v.  Marshall,  30  Ark.  230;  McGovern  r.  Knox, 

533 


§  367  TRUSTS.  [part  II. 

tention  of  the  parties  in  respect  to  the  beneficial  interest  may 
be  established  by  parol  evidence,  even  against  the  express  re- 
citals of  the  deed.  But  the  evidence  must  be  clear.  It  would 
seem  that  this  would  be  a  clear  violation  of  the  Statute  of 
Frauds,  where  the  deed  was  taken  in  the  name  of  another 
with  the  understanding  that  the  one  paying  the  consideration 
shall  be  the  beneficial  or  equitable  owner.  For  it  is  difficult 
to  see  in  what  way  such  a  trust  differs  from  an  express  trust, 
which  is  required  to  be  manifested  by  some  writing.  But  the 
decisions  have  held  that  it  was  not  necessary  for  it  to  be  in 
writing,  and  such  must  be  taken  to  be  the  law.-"     In  like 

21  Ohio  St.  .547;  Latham  V.  Henderson,  47  111.  18.5;  Mathis  V.  Stuffle- 
beam,  04  111.  481;  Moss  f.  Moss,  95  111.  449;  Johnson  v.  Quarles,  47 
Mo.  423;  Boskowitz  v.  Davis,  12  Nev.  446;  Logan  V.  Walker,  1  Wis. 
527;  Case  r.  Codding,  38  Cal.  191;  Roberts  V.  Ware,  40  Cal.  G34;  Mer- 
shon  V.  Duer,  40  N.  J.  Eq.  333;  Osgood  V.  Eaton,  82  N.  H.  512;  Parker 
r.  Logan,  82  Va.  376;  Farrington  v.  Duval  (S.  C),  10  S.  E.  Rep.  944; 
Xanoe  r.  Nance,  28  111.  App.  587.  "  A  resulting  trust  in  favor  of  one 
furnishing  money  for  the  purchase  of  real  estate  cannot  arise  in  oppo- 
sition to  the  intention  of  the  parties."  Funk  v.  Hensler  (Wash.  1903), 
72  Pac.  Rep.  102.  "  A  resulting  trust  will  not  arise  in  favor  of  one 
paying  a  part  of  the  price  of  land  conveyed  to  another  unless  it  is 
shown  that  he  paid  some  definite  part  of  the  consideration."  Onasch 
f.  Zinkel,  72  N.  E.  Rep.  716,  213  111.  119.  "A  voluntary  conveyance 
cannot  be  held  to  create  a  resulting  trust  for  the  grantor."  Gallagher 
V.  Northrup  (111.  App.  1904),  114  111.  App.  368.  "There  is  not  a  re- 
sulting trust  in  favor  of  the  purchaser  at  execution  sale  where  the  deed 
to  her  is  void,"  Livingstone  v.  Murphy  (Mass.  1905),  72  N.  E.  Rep. 
1012. 

28  See  Willis  v.  W'illis,  2  Atk.  71;  Gascoigne  v.  Thwing,  1  Vern.  366; 
Heard  v.  Pilley,  L.  R.  4  Ch.  548;  Baker  v.  Vining,  30  Me.  121;  Boyd 
V.  McLean,  1  Johns.  Ch.  582;  Hennesy  v.  Walsh,  55  N.  H.  515;  Parker 
V.  Snyder,  31  N.  J.  Eq.  164;  Whitmore  V.  Learned,  70  Me.  276;  Thomas 
t?.  Standiford,  49  Md.  181;  Miller  v.  Blose's  Exr.,  30  Gratt.  744;  Lee  V. 
Browder,  51  Ala.  288;  Agricultural  Assn.  V.  Brewster,  51  Texas  257; 
Murphy  v.  Peabody,  63  Ga.  522;  Smith  v.  Patton,  12  W.  Va.  541;  Mc- 
Creary  v.  Casey,  50  Cal.  349;  Ward  v.  Armstrong,  84  111.  151.  "The 
statute  of  frauds  is  inapplicable  in  the  case  of  resulting  trusts."  Lynch 
r.  Herrig  (Mont.  1905),  80  Pac.  Rep.  240.  "A  resulting  trust  can 
only  be  created  by  a  writing."  Los  Angeles  &  B.  Oil  &  Development 
Co.  of  Arizona  v.  Occidental  Oil  Co.  (Cal.  1904),  78  Pac.  Rep.  25. 

534 


CH.   XIV.]  TRUSTS.  §  367 

manner  the  presumption  of  a  trust  arising  from  the  pay^nent 
of  the  consideration  may  be  rebutted  by  parol  evidence,  show- 
ing that  the  one  paying  the  consideration  intended  that  the 
grantee  in  the  deed  should  have  the  benefit  of  the  purchase  as 
a  gift,  provided  such  parol  evidence  does  not  contradict  the 
terms  of  the  deed.^^  The  second  circumstance  is,  the  consid- 
eration must  be  paid  by  the  person  claiming  the  resulting 
trust  at  the  time  of  the  transaction  of  sale  or  conveyance. 
Any  subsequent  payment  of  the  consideration  by  such  per- 
son, even  though  he  has  been  compelled  to  do  so  as  surety  of 
the  grantee,  will  not  raise  a  trust.-*  The  absence  of  either 
of  these  circumstances  will  prevent  the  trust  resulting  from 
the  payment  of  the  consideration.'^"     And  the  evidence  in  sup- 

27  Lane  V.  Digliton,  Ambl.  409;  Bcnbow  V.  Townsend,  1  My.  &  K.  506; 
Ilopkinson  V.  Dumas,  42  N.  H.  303;  Edwards  v.  Edwards,  39  Pa.  St. 
C7S;  Carter  V.  Montgomery,  2  Tenn.  Ch.  216;  Adams  v.  Greerard,  26 
Ga.  651;  Warner  v.  Steer,  112  Pa.  St.  634;  Tryor  v.  Huntoon,  67  Cal. 
325. 

28  Howell  V.  Howell,  15  N.  J.  Eq.  78;  Buck  v.  Swazey,  35  Me.  41; 
Hopkinson  V.  Dumas,  42  N.  H.  301 ;  Mershon  v.  Duer,  40  N.  J.  Eq. 
333;  Brown  v.  Cave,  23  S.  C.  251;  Shaw  v.  Shaw,  86  Mo.  594;  Walsh 
V.  McBride  (Md.),  19  Atl.  Rep.  4;  Pulford  v.  Morton,  62  Mich.  25; 
Rice  V.  Pennypacker,  5  Del.  Ch.  33.  So  also  will  a  trust  result  to  one 
who  pays  a  part  of  the  purchase-money  with  the  intention  that  he  shall 
have  an  interect  in  the  land.  But  in  order  that  there  may  be  a  result- 
ing trust  in  his  favor,  the  exact  amount  which  he  advances  must  be 
clearly  established.  Any  doubt  or  uncertainty  in  that  respect  will  pre- 
vent tlie  trust  from  resulting.  Shoemaker  v.  Smith,  11  Humph.  81; 
Smith  V.  Smith,  85  HI.  189;  Cramer  v.  Hoose,  93  HI.  503;  Shea  v. 
Tucker,  56  Ala.  450;  MeCreary  v.  Casey,  50  Cal.  349;  Botsford  v.  Burr, 
2  Johns.  Ch.  405;  Smith  v.  Straham,  16  Texas  314;  Sayre  v.  Townsend, 
15  Wend.  647;  Springer  v.  Springer,  114  HI.  658;  Somers  v.  Overhul- 
ser,  67  Cal.  237. 

2»McCue  V.  Gallagher,  23  Cal.  53;  Gee  v.  Gee,  32  Miss.  190;  Gibson 
V.  Foote,  49  Miss.  792;  Ramsdell  v.  Emory,  46  Me.  311;  Botsford  v. 
Burr,  2  Johns.  Ch.  405;  McCullough  v.  Ford,  96  III.  439;  House  v. 
House,  57  Ala.  262;  Kennedy  v.  Price,  57  Miss.  771;  Hennesy  v.  Walsh, 
55  N.  H.  515,  and  cases  cited  in  the  preceding  notes.  Heneke  v.  Flor- 
ing,  114  111.  554;  Green  v.  Dietrich,  114  111.  036;  Burdette  f.  May,  100 
Mo.  13;  Nance  v.  Nance,  28  HI.  App.  587;  Rice  v.  Pennypacker,  5  Del. 
Ch.  33.    There  is  no  resulting  trust  in  favor  of  one  whose  money  is  ex- 

535 


§  367  TRUSTS.  [part  ti. 

port  of  both  propositions  must  be  clear  and  free  from  reason- 
able doubt.'"  Resulting  trusts  are  now  regulated  by  statute 
in  New  York,  Michigan,  Indiana,  Kentucky,  Minnesota,  Wis- 
consin and  Kansas.  They  all  substantially  abolish  such  re- 
sulting trusts  as  arise  in  a  conveyance  to  one  person  in 
favor  of  another  who  has  paid  the  consideration,  except  in 
favor  of  the  judgment-creditors  of  the  latter.  They  may 
enforce  the  trust  in  their  behalf  if  they  were  creditors  at 
the  time  of  the  conveyance.'^  But  the  statutes  expressly  ex- 
cept those  cases  where  the  deed  has  been  taken  in  the  name 
of  another,  through  some  accident,  fraud  or  mistake.'-  These 
resulting  trusts  rest  upon  the  presumption  that  the  person 
beneficially  entitled  has  been  deprived  of  his  interest  against 
his  will.  But  where  the  relation  between  the  parties  is  so 
close  as  to  permit  of  the  counter-presumption  that  the  one 
paying  the  consideration  intended  it  as  a  gift  to  the  one  in 
whose  name  the  deed  is  taken,  as  where  the  parties  are  hus- 
band and  wife,  parent  and  child,  and  the  like,  there  will  be 

pended  in  improvements  on  tlie  land.  Bodwell  v.  Nutter,  63  X.  H.  446. 
"  A  trust  founded  on  no  consideration  on  the  part  of  the  cestui  que 
trust  %A'ill  not  be  enforced  either  at  law  or  in  equity,  imless  executed  or 
fully  declared,  and  to  take  effect  in  prcesenti."  Fisher  v.  Hampton 
Transp.  Co.  (Mich.  1904),  98  N.  W.  Rep.  1012,  10  Detroit  Leg.  N.  1028. 

soHeneke  V.  Floring,  114  111.  554;  Green  r.  Dietrich,  114  111.  630;  St. 
Patrick's  Catholic  Church  v.  Daly,  116  111.  76;  Woodward  v.  Sibert, 
82  Va.  441;  Catoe  V.  Catoe  (S.  C),  10  S.  E.  Rep.  1078;  Hoover  r. 
Hoover,  29  Pa.  St.  201;  Behm  r.  Molly  (Pa.),  19  Atl.  Rep.  562;  Guest 
V.  Guest,  74  Tex.  664. 

312  R.  S.  N.  Y.  (1875)  1105,  Sees.  51,  52,  53;  2  Comp.  Laws  Mich. 
(1871)  1.331,  Sec3.  7,  8,  9;  1  R.  S.  Wis.  1129,  Sees.  7,  8,  9;  Comp.  Laws 
Kan.,  p.  989,  Sees.  6,  7,  8;  Moore  t.  Williams,  55  N.  Y.  Super.  Ct.  116; 
Weers  v.  Rademacher,   120  N.  Y.  62. 

32  For  cases  in  which  these  statutes  have  been  under  consideration  see 
Reitz  V.  Reitz,  80  N.  Y.  538;  Siemon  V.  Schurck,  29  N.  Y.  598;  Weare 
V.  Linnell,  29  Mich.  224;  Munch  v.  Shabel,  37  Mich.  106;  Derry  r. 
Derry,  74  Ind.  560;  Hon  f.  Hon,  70  Ind.  1.35;  Catherwood.  05  Ind. 
676;  Graves  v.  Graves,  3  Mete.  167;  Kennedy  r.  Taylor,  20  Kan.  558; 
Underwood  v.  Sutliffe,  77  N.  Y.  51;  Traphagen  v.  Burt,  67  N.  Y.  30; 
Bedford  v.  Graves  (Ky.),  1  S.  W.  Rep.  534. 
536 


CPI.    XIV.]  TRUSTS.  §  367 

no  resulting  trust.'*  But  this  is  only  a  presumption  of  law, 
in  rebuttal  to  the  presumption  of  a  trust  raised  by  the  pay- 
ment of  the  consideration.  If  it  is  shown  that  the  deed 
was  taken  in  the  name  of  the  wife  or  child  through  a  mistake 
of  the  scrivener,  or  the  fraud  of  some  one,  or  with  the  in- 
tention that  the  husband  or  father  should  have  the  equitable 
interest,  the  trust  will  result,  as  in  any  other  case.''* 

33  It  is  presumed  to  be  a  gift,  because  the  purchasers  in  the  cases 
supposed,  husband  and  father,  are  under  a  moral  or  quasi  legal  obliga- 
tion to  maintain  the  persons  in  whose  names  the  deeds  are  taken,  viz., 
wife  and  child.  1  Cruise  Dig.  394;  1  Spence  Eq.  Jur.  511;  Kingdom 
V.  Bridges,  2  Vern.  67;  Finch  r.  Finch,  15  Ves.  43;  :Marshall  v.  Crut- 
well,  L.  R.  20  Eq.  328;  Livingston  v.  Livingston,  2  Johns.  Ch.  537; 
Farnell  r.  Lloyd,  6D  Pa.  St.  239;  Stevens  v.  Stevens,  70  Me.  92;  Loch- 
enour  v.  Lochenour,  61  Ind.  595;  Read  v.  Huff,  40  N.  J.  Eq.  229;  Rob- 
inson r.  Robinson,  45  Ark.  481 ;  In  re  Camp,  10  N.  Y.  S.  141.  And  the 
same  presumption  prevails  wherever  one  purchases  property  in  the 
name  of  another,  while  the  former  stands  in  loco  parentis  (between 
mother  and  child).  In  re  De  Visme,  2  De  G.,  J.  &  S.  17;  Batstone  f. 
Salter,  L.  R.  19  Eq.  250.  But  see  Murphy  r.  Nathans,  46  Pa.  St.  508; 
Shaw  V.  Read,  47  Pa.  St.  103;  Flynt  v.  Hubbard,  57  Miss.  471  (be- 
tween grandfather  and  grandchild);  Co.  Lit.  290b,  note  249,  Sec.  8; 
Ebrand  i:  Dancer,  2  Chan.  Cas.  26.  See  generally  Beckford  V.  Beck- 
ford,  Lofft.  490;  Lloyd  v.  Read,  1  P.  Wms.  607;  Smith  V.  Patton,  12 
W.  Va.  541 ;  Higdon  v.  Higdon,  57  Miss.  264.  On  the  other  hand  there 
is  no  presumption  of  a  gift  where  the  deed  is  taken  in  the  name  of  the 
husband  or  father,  and  the  purcliase-money  is  paid  by  wife  or  child. 
Howell  V.  Howell,  15  N.  J.  Eq.  77;  Thomas  V.  Standiford,  49  Md.  181; 
Lofton  V.  Witboard,  92  111.  461;  Moss  v.  Moss,  95  111.  449;  Catherwood 
r.  Watson,  65  Ind.  575;  Cunningham  f.  Bell,  83  N.  C.  328;  Tilford  f. 
Torrey,  53  Ala.  120;  Leman  r.  Whitley,  4  Russ.  423;  Sasser  v.  Sasser, 
73  Ga.  275. 

34  Wallace  v.  Bowens,  28  Vt.  638;  Sawyer's  Appeal,  16  N.  H.  414; 
Dickinson  v.  Davis,  43  N.  H.  647;  Jackson  r.  Matdurf,  11  Johns.  91; 
Stevenson  v.  Stevenson,  70  Me.  92;  Springer  v.  Berry,  47  Me.  338; 
Guthrie  r.  Gardner,  19  Wend.  414;  Williams  v.  Williams,  32  Beav.  370; 
Read  r.  Huff,  40  N.  J.  Eq.  229;  Russell  V.  Russell  (Ky.),  12  S.  W. 
Rep.  709.  It  has  been  held  that  there  can  be  no  resulting  trust  in 
favor  of  a  husband  in  property  in  the  name  of  the  wife,  because  the 
wife  cannot  be  trustee  for  the  husband.  1  Cruise  Dig.  402;  Kingdon  r. 
Bridges.  2  Vern.  67;  Alexander  r.  Warrance,  17  Mo.  228;  Jencks  v. 
Alexander,  11  Paige  Ch.  619.  This  technical  rule  is  not  presumed  to 
prevail  in  this  country  as  an  obstacle  in  the  way  of  raising  a  resulting 

537 


§  368  TRUSTS.  [part   II, 

§  368.  Constructive  trusts. —  Constructive  trusts  arise 
where  the  trustee  or  any  other  person  holding  a  fiduciary  po- 
sition, by  fraud,  actual  or  constructive,  makes  an  illegal  dispo- 
sition of  trust  property  to  the  injury  of  the  cestui  que  trust 
or  beneficiary.  The  latter  can,  at  his  election,  follow  such 
trust  property  into  whosesoever  hands  it  may  come  with  no- 
tice of  the  trust.^°  And  it  matter  not  whether  the  original 
holding  of  such  property  was  legal  or  illegal;  if,  afterwards, 
it  becomes  illegal,  the  same  rule  will  apply.^*  The  most  com- 
mon instances  of  constructive  trusts  are  purchases  by  the 
trustee  of  trust  property  at  his  own  sale,  or  an  illegal  con- 
veyance by  him  to  one  having  notice  of  the  trust,  or  paying 
no  valuable  consideration.  It  is  a  general  rule  of  law  that  a 
trustee  cannot  purchase  at  his  own  sale,  and  if  he  does  he 
cannot  acquire  an  absolute  title.     It  is  voidable  at  the  elec- 

trust,  and  certainly  not  in  those  States  where  the  wife  is  treated,  in 
respect  to  her  property^  as  a  feme  sole.  See  cases  cited,  supra.  "  A 
resulting  trust  arises  in  favor  of  the  wife  where  property  is  purchased 
by  the  husband  with  her  funds,  and  title  thereto  is  taken  in  the  hus- 
band's name."  Matador  Land  &  Cattle  Co.  v.  Cooper  (Tex.  Civ.  App. 
1905 ) ,  87  S.  W.  Rep.  235.  "  As  between  a  wife  and  the  creditors  of  her 
husband,  the  wife  was  entitled  to  have  a  resulting  trust  in  real  estate, 
in  the  absence  of  any  estoppel,  to  the  extent  of  her  contribution  toward 
the  purchase  price,  and  to  the  extent  that  her  money  had  been  used  in 
repairs,  taxes,  etc.,  over  and  above  her  proportion  of  the  purchase  price. 
Mayer  v.  Kane  (N.  J.  Ch.  1905),  61  Atl.  Rep.  374.  Where  a  minor 
pays  a  portion  of  the  purchase  price  of  a  farm,  title  to  which  is  taken 
in  the  name  of  his  father,  but  with  the  understanding  that  it  was  not  a 
gift  to  the  father,  a  trust  would  result  in  the  minor's  favor  to  the 
amount  paid,  though  the  balance  was  not  so  paid  as  to  raise  a  resulting 
tiust  on  its  account.  Crowley  v.  Crowley  (N.  H.  1903),  56  Atl.  Rep, 
190. 

35  2  Washburn  on  Real  Prop.  447;  1  Spence  Eq.  Jur.  511;  2  Pom.  Eq. 
Jur.  1044;  Perry  on  Tr.,  Sec.  166;  Bailey  i;.  Winn  (Mo.),  12  S,  W.  Rep, 
1045;  Murphy  v.  Murphy  (Iowa),  45  N.  W.  Rep.  914;  Lehmann  V. 
Rothbarth,  111  111,  185;  Morgan  V.  Fisher's  Admr.,  82  Va.  417. 

36  Thus,  if  a  mortgage  is  given  jointly  to  two,  and  one  dies,  the  sur- 
vivor would  hold  the  mortgage  as  trustee  for  himself  and  the  heirs  and 
personal  representatives  of  the  deceased.  Buck  v.  Swazey,  35  Me.  41; 
Randall  v.  Phillips,  3  Mason  378;  Caines  v.  Grant,  5  Binn.  119. 

538 


c:i.  ::iv.J  trusts.  §  C^j 

tion  of  the  cestui  que  trust.  Until  an  avoidance  cr  raliue:i- 
tion  by  him  there  is  a  constructive  trust  raised  in  his  favor."^ 
But  this  rule  does  not  prevent  him  from  purchasing  the  trust 
property  with  the  consent  of  the  cestui  que  trust,  provided  the 
latter  is  of  age.  But  such  transactions  are  closely  watched, 
and  if  the  consideration  paid  therefor  be  not  adequate,  the 
courts  are  greatly  disposed  to  set  aside  the  salo.^^  The  court 
of  equity  may  also  authorize  the  trustee  to  buy  the  property 
in,  and  in  that  case  the  title  of  the  trustee  will  be  good  against 
all  parties.^®     In  the  same  manner,  if  the  trustee  attempts  to 

37  Jennison  v.  Hapgood,  7  Pick.  8 ;  Swinburne  v.  Swinburne,  28  N.  Y. 
5G8 ;  Hubbell  r.  Medbury,  53  N.  Y.  98 ;  Charles  v.  Dubose,  29  Ala.  3G7 ; 
Gaerrers  v.  Bailleno,  48  Cal.  118;  Newton  v.  Taylor,  39  Ohio  St.  399; 
Rea  V.  Copelin,  47  Mo.  76;  Broyles  V.  Nowlin,  59  Tenn.  191;  Reickhoff 
V.  Brecht,  51  Iowa  633;  Pindall  v.  Trevor,  30  Ark.  249;  Blauvelt  V. 
Akerman,  20  N.  J.  Eq.  141;  Barnett  v.  Bamber,  81  Pa.  St.  247;  Tracy 
V.  Craig,  55  Cal.  359;  Davis  v.  Creek,  55  Cal.  359;  Reitz  v.  Reitz, 
80  N.  Y.  538;  Smith  v.  Stephenson,  45  Iowa  645;  Jones  V.  Dexter,  130 
Mass.  380;  Hastings  v.  Drew,  76  N.  Y.  9;  Bennett  v.  Austin,  81  N.  Y. 
308;  Smith  V.  Frost,  70  N.  Y.  605;  Heath  V.  Crealock,  L.  R.  18  Eq. 
215;  In  re  Hallett's  Estate,  L.  R.  13  Ch.  696;  Wedderbum  v.  Wedder- 
burn,  4  My.  &  Cr.  41;  Great  Luxembourg  Ry.  Co.  v.  Magnay,  25  Beav. 
586;  Barnes  v.  Addy,  L.  R.  9  Ch.  244;  Bassett  V.  Shoemaker  (N.  Y.), 
20  Atl.  Rep.  52.  Where  a  grantee  or  devisee  obtains  the  possession 
and  title  to  land  intended  for  another  by  actual  fraud,  on  clear  and 
convincing  proof  of  the  fraud,  a  trust  will  be  raised  in  favor  of  the 
latter.  Moore  v.  Crump  (Miss.  1904),  37  So.  Rep.  109.  A  constructive 
trust  results  in  favor  of  a  corporation  where,  by  reason  of  the  fraudu- 
lent acts  of  its  managing  officers  and  others,  its  property  has  been  con- 
veyed away  and  lost  and  wasted  to  the  corporation  and  its  stockholders. 
Northwestern  Land  Assn.  v.  Grady   (Ala.  1903),  33  So.  Rep.  874. 

88  Downes  v.  Grazebrook,  3  Meriv.  208 ;  Ex  parte  Lacey,  6  Ves.  625 ; 
Morse  v.  Royal,  12  Ves.  355;  Denton  v.  Donner,  23  Beav.  285;  Coles  v. 
Trecsthick,  9  Ves.  234;  Spencer  v.  Newbold's  Appeal,  80  Pa.  St.  317. 

8»Scholle  V.  Scholle,  101  N.  Y.  167;  Fisher's  Appeal,  34  Pa.  St.  29; 
Marshall  v.  Joy,  17  Vt.  546;  Moore  v.  Mandlebaum,  3  Mich.  433;  Bur- 
rell  V.  Bull,  3  Sandf.  Ch.  15;  Young  v.  Hughes,  32  N.  J.  Eq.  372; 
Walker  V.  Carrington,  74  111.  446.  "  The  beneficiary  of  a  trust  fund  is 
entitled  to  all  profits  made  thereon  by  the  trustee  in  violation  of  his 
trust."  JeflTray  f.  Towar  (N.  J.  Ch.  1903),  54  Atl.  Rep.  817.  "Where 
Iwneficiaries  suffered  loss  by  the  conduct  of  the  trustee,  their  remedy 

539 


S  368  TRUSTS.  [part  n. 

make  an  illegal  disposition  of  the  land,  his  grantee  will  take 
it  bound  with  a  constructive  trust  in  favor  of  the  cestui  que 
trust,  unless  he  has  had  no  actual  or  constructive  notice  of 
the  trust,  and  has  paid  a  valuable  consideration/'^  And  where 
such  grantee  is  a  bona  fide  purchaser  for  value,  the  proceeds 
of  sale  will  be  subject  to  the  constructive  trust  in  favor  of 
the  cestui  que  trust,  into  whatever  kind  of  property  such  pro- 
ceeds may  be  invested,  as  long  as  the  possibility  of  identifying 
them  remains.*^  These  are  only  the  more  common  instances 
of  constructive  trusts.  But  there  are  many  others,  and  it  may 
be  stated  as  the  invariable  rule  that  where  there  has  been  a 
fraud  committed  in  the  disposition  or  acquisition  of  the 
property,  equity  will  raise  a  constructive  trust  in  favor  of  the 
person  so  defrauded,  unless  it  will  interfere  with  and  affect 
the  interest  of  innocent  third  persons.^^  Thus,  if  one  em- 
is  to  proceed  against  the  trustee."  Miller  v.  Butler  (Ga.  1905),  49  S. 
E.  Rep.  754. 

40  Thompson  i*.  Wheatley,  5  Smed.  &  M.  499;  Fillman  r.  Divers,  31 
Pa.  St.  42;  Hopkinson  v.  Dumas,  42  N,  H.  304;  Boone  V.  Chiles,  10 
Pet.  177;  McVey  v.  Quality,  97  111.  93;  Dey  v.  Dey,  26  N.  J.  Eq.  182; 
Veile  V.  Blodgett,  49  Vt.  270;  Murray  v.  Ballou,  1  Johns.  Ch.  566; 
Phelps  V.  Jackson,  31  Ark.  272;  Planter's  Bk.  v.  Prater,  64  Ga.  609; 
Dotterer  v.  Pike,  60  Ga.  29;  Musham  V.  Musham,  87  111.  80;  Newton  V. 
Porter,  G9  N.  Y.  133;  Russell  v.  Clark's  Exrs.,  7  Cranch  69;  Sharpe  V. 
Goodwin,  51  Cal.  219;  Boyd  V.  Brincken,  55  Cal.  427;  McEachin  v. 
Stewart,  106  N.  C.  336. 

"  Burks  V.  Burks,  7  Baxt.  353;  Broyles  v.  Nowlin,  50  Tenn.  191;  Til- 
ford  V.  Torrey,  53  Ala.  120 ;  Pindall  V.  Trevor,  30  Ark.  249 ;  McDonough 
1?.  O'Neil,  113  Mass.  92;  Tracy  V.  Kelley,  52  Ind.  535;  Cookson  V. 
Richardson,  69  111.  137;  Coles  v.  Allen,  64  Ala.  (when  no  trust  arises)  ; 
Dodge  V.  Cole,  97  111.  338;  Schlaefer  v.  Corson,  52  Barb.  510;  Hastings 
V.  Drew,  76  N.  Y.  9,  16;  Taylor  V.  Mosely,  57  Miss.  544;  Mich.,  etc., 
R.  R.  V.  Mellen,  44  Mich.  321;  Murray  v.  Lylburn,  2  Johns.  Ch.  441, 
443;  Shaw  r.  Spencer,  100  Mass.  382;  Shelton  v.  Lewis,  27  Ark.  190; 
Duncan  V.  Jaudon,  15  Wall.  165;  Newton  V.  Taylor,  32  Ohio  St.  399; 
Barrett  r.  Bamber,  81  Pa.  St.  247;  Veile  v.  Blodgett,  49  Vt.  270;  Hub- 
bard 17.  Burrell,  41  Wis.  365;  proceeds  charged  with  a  trust  on  sale  to  a 
bona  fide  purchaser. 

*-'  Lakin  V.  Sierra  Buttes  Gold  Mining  Co.,  25  Fed.  Rep.  337 ;  Boyee 
V.  Stanton,  15  Lea,  346;  Palmetto  Lumber  Co.  f.  Risley,  25  S.  C.  309; 

540 


CH.    XIV.]  TRUSTS.  §    -^fiS 

bezzles  money  intrusted  to  his  care  and  invests  it  in  real 
estate,  the  person  to  whom  the  money  belongs  will  have  a 
constructive  trust  in  such  land  as  against  every  one  except 
an  innocent  subsequent  purchaser.**  But  there  will  not  be 
any  constructive  trust  unless  it  can  be  shown  that  specific 
pieces  of  property  had  been  purchased  with  trust  funds.**  A 
constructive  trust  also  arises  where  one  procures  a  devise  or 
bequest  upon  the  fraudulent  misrepresentation  that  he  will 
apply  such  testamentary  provisions  to  the  use  and  benefit  of 
another,*^  or  succeeds  in  effecting  a  purchase  of  property 

Wingerter  v.  Wingerter,  71  Cal.  105;  McElroy  V.  Hiner  (111.).  24  X.  K. 
Rep.  435;  Huxley  v.  Eice,  40  Mich.  73;  Phelps  V.  Jackson,  31  Ark.  272; 
Hendrix  V.  Niinn,  46  Texas,  141;  Veile  v.  Blodgett,  49  Vt.  270:  .len- 
kins  V.  Doolittle,  69  111.  415;  Greenwood's  Appeal,  92  Pa.  St.  181; 
Barnes  v.  Taylor,  30  N.  J.  Eq.  7;  Hollinshead  r.  Simms.  rA  Cal.  158; 
Dewey  V.  Mover,  72  X.  Y.  70,  76;  Beach  v.  Dyer,  93  111.  295;  Dyer  V. 
Dyer,  1  Eq.  Lead.  Gas.  314,  350-364    (4th  Am.  ed.). 

*3Foote  f.  Colvin,  3  Johns.  216;  Murdock  V.  Hughes,  7  Snied.  &  M. 
219;  Johnson  v.  Dougherty,  18  N.  J.  Eq.  406;  Robb's  Appeal,  41  Pa. 
45;  Duncan  v.  Jandon,  15  Wall.  165;  Hubbard  V.  Burrell,  41  Wis.  365; 
Barrett  V.  Bamber,  81  Pa.  St.  247;  McLarren  V.  Brewer.  51  Me.  402; 
Homer  V.  Homer,  107  Mass.  82;  Jones  V.  Dexter,  130  Mass.  380;  Shaw 
V.  Spencer,  100  Mass.  382;  Watson  V.  Thompson,  12  R.  I.  466;  Sohlaefer 
r.  Carson,  52  Barb.  510;  Ferris  v.  Van  Vechten,  73  N.  Y.  113;  Derry  v. 
Derry,  74  Ind.  560;  ReickhoflF  V.  Brecht,  51  Iowa  633;  White  r.  Drew,  42 
Mo.  561;  Tilford  r.  Torrey,  53  Ala,  120;  Coles  v.  Allen,  64  Ala.  98;  Moss 
V.  Moss,  95  111.  449;  Winkfield  v.  Brinkman,  21  Kan.  689;  Thomas  V. 
Standiford,  49  Md.  181;  Tracy  V.  Kelley,  52  Ind.  535;  Dodge  v.  Cole, 
97  111.  338;  Settembre  v.  Putnam,  30  Cal.  490;  Jenkins  v.  Frink,  30 
Cal.  586;  Keech  v.  Sandford,  Sel.  Gas.  Ch.  61,  1  Eq.  Ld.  Gas,  48; 
Riehl  V.  Evansville  Founding  Assn.,  104  Tnd.  70;  Paxton  v.  Stuart,  80 
Va.  873;  Phillips  f.  Overfield,  100  Mo.  467;  McEachin  V.  Stewart,  106 
N.  C.  336.  "  A  constructive  trust  arises  against  one  who,  by  falsely  rep- 
resenting to  B.  that  he  is  acting  for  C,  obtains  from  B.  property  which 
B.  intended  to  give  to  G. ;  and  that  trust  may  be  enforced  by  G.,  irre- 
spective of  the  question  whether  G.  had  an  enforceable  claim  against 
B."    Johnston  r.  Reilly   (\.  J.  1904),  57  Atl.  Rep.  1049. 

**  Phillips  V.  Overfield,  100  Mo.  406. 

4»Bulkley  v.  Wilford,  8  Bligh.  (n.  s.)  Ill;  Chester  v.  Urwick,  23 
Beav.  407;  Church  r.  Ruland.  64  Pa.  St.  432;  McCormick  V.  Grogan,  L. 
R.  4  H.  L.  82,  97,  per  Lord  Westbury;   Podmore  v.  Gunning,  7  Sim. 

541 


§  368  TRUSTS.  [part  II. 

without  the  competition  of  one  who  desired  to  make  the  same 
purchase  by  fraudulently  promising  the  latter  the  benefit  of 
such  purchase,  if  he  refrains  from  competition.*"  But  in  all 
such  cases  the  elements  of  fraud,  and  not  the  bare  verbal 
promise,  gives  rise  to  the  constructive  trust,  and  if  there  be 
no  fraud,  there  will  be  no  constructive  trust.*^  The  invalidity 
of  the  voluntary  conveyance  against  the  creditors  of  the  gran- 
tor may  be  ascribed  to  the  application  of  the  same  principle. 
The  creditors  have  a  constructive  trust  in  the  property  of  the 
debtor  which  follows  the  land  into  the  hands  of  the  volun- 
tary grantees.''^  A  constructive  trust  will  also  arise  in  favor 
of  a  principal,  where  the  agent  buys  property  and  takes  a 

644;  Hoge  I'.  Hoge,  1  Watts,  163,  213;  Dowd  V.  Tucker,  41  Conn.  197; 
Williams  r.  Vreeland,  29  N.  J.  Eq.  417. 

*6  Combs  V.  Little,  3  Green  Ch.  410;  Marlatt  V.  Warwick,  18  N.  J. 
"Eq.  108;  Merritt  V.  Brown,  21  Id.  401,  404;  Troll  v.  Carter,  15  W.  Va. 
567;  Wolford  V.  Herrington,  86  Pa.  St.  39;  1  Eq.  Ld.  Cas.  3.50-364 
(4  Am.  ed.)  ;  Hunt  v.  Roberts,  40  Me.  187;  Hodges  v.  Howard,  5  R.  I. 
149;  Eraser  v.  Child,  5  E.  D.  Smith  153;  Hoge  v.  Hoge,  1  Watts,  163, 
214;  Cousins  V.  Wall,  3  Jones'  Eq.  43;  Ryan  v.  Box,  34  N.  Y.  307; 
and  Wheeler  v.  Reynolds,  66  Id.  227;  Dodd  V.  Wakeman,  26  N.  J.  Eq. 
484;  Walker  v.  Hill's  Exrs.,  22  Id.  519;  Farnham  v.  Clements,  51  Me. 
426;  McCulloch  V.  Cowhed,  5  Watts  &  S.  427,  430;  Kisler  V.  Kisler,  2 
Watts,  32!3. 

4T  Pattison  v.  Horn,  1  Grant's  Cas.  (Pa.)  301;  Barnett  v.  Dough- 
erty, 32  Pa.  St.  371;  Campbell  V.  Campbell,  2  Jones'  Eq.  304;  Cham- 
bliss  V.  Smith,  30  Ala.  366;  Leman  v.  Whitley,  4  Russ.  423;  Levy  v. 
Brush,  45  N.  Y.  586 ;  Wheeler  V.  Reynolds,  66  Id.  227 ;  Payne  V.  Patter- 
son, 77  Pa.  St.  134;  Bennett  V.  Dollar  Sav.  Bank,  87  Id.  382;  Hon  V. 
Hon,  70  Ind.  135;  Gibson  V.  Decius,  82  111.  304;  Farnham  v.  Clements, 
51  Me.  426.  "  Though  a  constructive  trust  may  be  proved  by  parol, 
the  evidence  is  insufficient  unless  '  it  is  full,  clear,  and  convincing.' " — 
Tillar  r.  Henry   (Ark.   1905),  88  S.  W.  Rep.  573. 

48  Hill  V.  Eliot,  12  Miss.  31;  Partridge  r.  Messer,  14  Gray,  180;  Case 
t'.  Gerrish,  15  Pick.  49;  Bliss  v.  Matteson,  45  N.  Y.  22;  Dewey  v.  Moyer, 
72  N.  Y.  70;  Haston  V.  Castner,  31  N.  J.  Eq.  697;  Clark  v.  Douglass,  62 
P^.  St.  408;  Gridley  v.  Watson,  53  111.  180;  Fellows  v.  Smith.  40  Mich. 
689;  Cowen  v.  Alsop,  51  Miss.  158;  Crawford  v.  Kirks^y,  55  Ala.  282; 
Church  r.  Chapin,  35  Vt.  223;  Freeman  v.  Burnham,  36  Conn.  469; 
Pomeroy  r.  Bailey,  43  N.  H.  118;  Stewart  v.  Rogers,  25  Iowa,  395;  see 
also  post.  Sec.  566. 
542 


CH.   XIV.]  TRUSTS.  §  369 

deed  in  his  own  name,  when  he  has  been  instructed  to  buy 
the  property  for  his  principal.*^  So  also  is  there  a  construc- 
tive trust  in  favor  of  the  wife,  where  a  husband  conveys  an 
estate  to  a  third  person  with  an  oral  agreement  that  the 
grantee  is  to  convey  the  same  to  the  wife.^°  And  it  may  be 
stated  generally  that  whenever  one  is  in  a  fiduciary  relation 
with  another,  and  in  violation  of  his  duties  to  such  beneficiary, 
acquires  property  or  profit,  which  ought  to  have  gone  to  such 
beneficiary,  the  property  or  profit  so  acquired  is  charged 
with  a  constructive  trust.''^ 

§  369.  Interest  of  the  cestui  que  trust. —  This  subject  has 
in  the  main  been  already  explained  while  treating  of  uses  and 
trusts  as  they  existed  before  the  statute,*^^  and  nothing  more 
need  now  be  done  than  to  refer  to  the  more  important  pe- 
culiarities of  modern  trusts,  in  which  they  differ  from  uses. 
Generally,  trusts  at  the  present  day  have  all  the  characteris- 
es Rose  V.  Hayden,  35  Kan.  106;  Reese  v.  Wallace,  113  111.  589;  Stew- 
art V.  Duffy,  116  111.  47;  Storm  Lake  Bank  v.  Mo.  Val.  Ins.  Co.,  66  Iowa, 
617;  Hodge  V.  Twitchell,  33  Minn.  380;  McLemore  V.  Carter  (Miss.), 
7  So.  Rep.  357.  But  see  contra,  Bank  of  Springfield  v.  W.  R.  R.  Co., 
86  Mo.  75. 

BOFischbeck  v.  Gross,  112  111.  208;  Hall  v.  Linn,  8  Col.  264. 
SI  Baker  v.  Whiting,  3  Sumn.  475,  495 ;  Kelley  v.  Greenleaf,  3  Story, 
<)3,  101;  Huson  V.  Wallace,  1  Rich.  Eq.  1,  2,  3,  7 ;  Lacy  V.  Hale,  37  Pa. 
c5t.  360;  Barrett  v.  Bamber,  81  Id.  247;  Winkfield  v.  Brinkman,  21  Kan. 
*j82;  Dunlop  V.  Richards,  2  E.  D.  Smith,  181;  Struthers  f.  Pearce,  51 
N.  Y,  357;  Leach  v.  Leach,  18  Pick.  68,  76;  Burdon  v.  Barkus,  3  Giff. 
412;  4  De  G.  F.  &  J.  42;  Holridge  V.  Gillespie,  2  Johns.  Ch.  30;  Van 
aorne  v.  Fonda,  5  Id.  388,  407;  Webster  v.  King,  33  Cal.  348;  Guerrero 
J.  Ballerino,  48  Id.  118;  Tracy  v.  Colby,  55  Id.  67;  Cookson  V.  Richard- 
A)n,  69  111.  137;  Reickhoff  v.  Brecht,  51  Iowa,  633;  Treadwell  v.  Mc- 
Keon,  7  Baxt.  201;  Newton  v.  Taylor,  32  Ohio  St.  399;  Barrett  V. 
fiamber,  81  Pa.  St.  247;  Jones  v.  Dexter,  130  Mass.  380;  Blauvcit  V. 
Ackerman,  20  N.  J.  Eq.  141;  Grumley  V.  Webb,  44  Mo.  444;  Swin- 
ouriio  V.  Swinburne,  28  N,  Y.  568;  Bennett  v.  Austin,  81  Id.  308;  Man- 
ning V.  Hayden,  5  Sawy.  360;  Broyler  v.  Nowlin,  59  Tenn.  191;  Pin- 
dall  V.  Trevor,  .30  Ark.  249;  Jeffray  r.  Towar  (X.  J.  Ch.  1903),  54  Atl. 
Rep.  817;  Miller  v.  Butler  (Ga.  1905),  49  S.  E.  Rep.  754. 
62  See  ante,  Sees.  324,  325,  332,  337. 

543 


§  370  TRUSTS.  [P.Vr.T    II. 

tics  of  the  ancient  use.     They  are  equitable  estates,  and  e::- 
forceable  solely  in  equity."*^ 

§  370.  Liability  for  debts. —  For  a  long  time,  and,  indeed, 
until  within  a  late  period,  an  equitable  estate  was  not  subject 
to  liability  for  the  debts  of  the  beneficiary ;  but  now  in  Eng- 
land, and  in  most  of  the  States  of  this  country,  they  are  by 
statute  made  applicable  to  the  satisfaction  of  his  debts."**  But 
the  trust  may  be  so  limited  as  that  it  will  be  terminated  when 
an  attempt  is  made  to  subject  it  to  the  debts  of  the  cestui  que 
trust.  The  rule  seems  to  be  well  established  that  if  the  trust 
is  executory  and  its  duration  is  discretionary  in  the  trustee, 
or  where  the  trust  by  the  terms  of  the  deed  or  will  is  to  cease 
upon  an  attempted  involuntary  conveyance  (i.  e.,  when  some 
creditor  seizes  upon  the  estate  for  the  payment  of  a  debt),  or 
an  assignment  in  bankruptcy,  or  upon  the  insolvency  of  the 
cestui  que  trust,  these  are  permissible  limitations  upon  the 
estate  of  the  beneficiary,  and  will  prevent  the  transfer  of  any 
interest  therein  to  the  creditors,  even  though  there  be  no 
limitation  over.^"*     But  it  will  not  be  permitted  to  a  man  to 

53  Co.  Lit.  290  b,  note  249,  Sec.  14 ;  2  Spence  Eq.  Jur.  875 ;  1  Prest. 
Est.  189;  1  Spence  Eq.  Jur,  497;  Cholmondeley  v.  Clinton,  2  Jac.  & 
W.  148 ;  Burgess  v.  Wheate,  1  Eden,  223 ;  Orleans  v.  Chatham,  2  Pick. 
29;  Banks  v.  Sutton,  2  P.  Wpas.  713;  Bush's  Appeal,  33  Pa.  St.  88; 
Price  V.  Sisson,  13  N.  J.  174;  2  Pom.  Eq.  Jur.  Sec.  989;  2  Washburn  on 
Real  Prop.  454-457.  "  The  interest  of  a  cestui  que  trust  is  an  equitable 
estate  in  the  land  or  other  thing,  of  which  the  legal  title  is  vested  in  the 
trustee."  Laughlin  v.  Leigh,  112  111.  App.  119,  judgment  affirmed 
Leigh  V.  Laughlin  (111.  1904),  71  N.  E.  Rep.  881,  211  111.  192.  "A 
cestui  que  trust  can  maintain  an  action  in  relation  to  the  trust  prop- 
erty only  after  the  trustee  has  refused  to  sue,  and  the  complaint  must 
show  such  refusal."  Woolf  v.  Barnes  (N.  Y.  Sup.  1904),  93  N.  Y.  S. 
219. 

54  1  Prest.  Est.  144;  2  Washburn  on  Real  Prop.  456;  Pratt  r.  Colt,  2 
Freem.  139;  Kip  v.  Bank  of  New  York,  10  Johns.  63;  Jackson  r. 
Walker,  4  Wend.  462;  Foote  V.  Colvin,  3  Johns.  316;  Bush's  Appeal. 
33  Pa.  St.  85;  Hutchins  v.  Heywood,  50  N.  H.  491;  Campbell  r. 
Foster,  35  N.  Y.  301;  Kennedy  v.  Nunan,  52  Cal.  326;  Wis.  Rev.  Stat. 
Ch.  134,  Sec.  37;  Rudd  v.  Van  Der  Hagan   (Ky.),  5  S.  W.  Rep.  416. 

55  Nichols   r.   Levy,  5   Wall.   433;    Nichols   r.   Eaton,   91    U.   S.    716; 

544 


CH.   XIV.]  TRUSTS.  §  371 

settle  his  estate  in  trust  for  himself,  and  so  limit  it  that  his 
creditors  cannot  touch  it.  The  rule  only  extends  to  the  settle- 
ment of  such  trusts  by  friends  and  relatives,  whose  desire  is  to 
secure  means  of  support  for  the  beneficiary,  free  from  liabil- 
ity for  his  debts.'^"  But  a  condition  against  liability  for  debts 
is  always  good,  where  the  property  is  conveyed  to  charitable 
uses.'^ 

§  371.  Words  of  limitation  in  trusts. —  Unlike  legal  estates 
at  common  law,  in  the  limitation  of  trusts,  the  same  technical 
words  are  not  required  to  be  used.  A  trust  in  fee  may  be 
created  without  using  the  word  heirs,  if  the  intention  of  the 
grantor  is  manifested  in  any  other  way.  And  such  intention 
will  be  presumed  if  the  terms  of  the  trust  cannot  in  any  other 
manner  be  satisfied.  This  rule  not  only  refers  to  the  quantity 
or  duration  of  the  equitable  estate  in  the  cestui  que  trust,  but 
if  the  equitable  estate  under  this  construction  is  larger  than 
the  legal  estate  in  the  trustee  according  to  the  ordinary  legal 
construction,  the  latter  estate  will  be  enlarged  by  construction 
to  meet  all  the  demands  of  the  trust  estate,  and  the  trustee 
will  take  a  fee,  even  though  the  estate  is  not  limited  to  heirs."*' 

Keyser  v.  Mitchell,  67  Pa.  St.  <173;  Rife  v.  Geyer,  59  Pa.  St.  393; 
Leavitt  V.  Beirne,  21  Conn.  1,  8;  Hill  v.  McRae,  27  Ala.  175;  Easterly 
V.  Kenny,  36  Conn.  18;  Fisher  v.  Taylor,  2  Rawle  33. 

B«Le.ster  v.  Garland,  5  Sim.  205;  Thipps  v.  Lord  Ennismore,  4  Russ. 
131;  Mackason's  Appeal,  6  Wright,  330;  Ashhurst's  Appeal,  77 'Pa. 
St.  464;  Brooks  v.  Pearson,  27  Beav.  181;  Partridge  v.  Cavender,  96 
Mo.  452;  Lampert  v.  Haydel,  96  Mo.  439;  Cunningham  v.  Corey,  59 
Mich.  494.  But  see  Markham  v,  Guerant,  4  Leigh,  279;  Johnston  v. 
Zane's  Trustees,  11  Gratt.  552,  and  Hill  v.  McRae,  27  Ala.  175,  where 
trusts  for  the  benefit  of  the  grantor  and  his  wife  or  family  have  been 
supported  against  the  claim  of  creditors. 

07  Butterfield  V.  Wilton  Academy  ( Iowa ) ,  38  N.  W.  Rep.  390. 

88  Villiera  v.  Villiers,  2  Atk.  71;  Gates  v.  Cooke,  3  Burr.  1684;  Shaw 
V.  Weigh,  2  Stra.  803;  Stanley  v.  Colt,  5  Wall.  168;  Neilson  v.  Lagow, 
12  How.  98;  Fisher  v.  Fields,  10  Johns.  505;  Gould  v.  Lamb,  11  Mete. 
87;  Welch  v.  Allen,  21  Wend.  147;  Pearce  v.  Savage,  45  Me.  90;  Greene 
V.  Wilbur,  15  R.  I.  251;  Chase  r.  Cartwright  (Ark.),  14  S.  W.  Rep. 
90;  Boston,  etc.,  Trust  Co.  v.  Mixter,  146  Mass.  100;  Doe  v.  Ladd, 
^  35  545 


§  371  /        TRUSTS.  [part   11. 

As  a  corollary  to  the  above  rule,  it  has  been  well  established 
that  trustees  will  not  take  any  larger  legal  estate  than  is 
required  for  the  purposes  of  the  trust.  If,  by  the  express 
limitation  of  the  deed,  the  trustee  has  a  larger  estate,  as,  for 
example,  he  has  a  fee,  and  the  trust  is  only  a  life  estate,  there 
is  a  resulting  use  in  the  remainder  to  the  grantor  and  his  heirs, 
which,  under  the  statute,  will  lo  executed,  leaving  in  the 
trustee  only  a  legal  life  estate.^^  But  these  are  only  rules  of 
construction  by  which  the  character  and  duration  of  the 
legal  and  equitable  estates  in  the  trufrt  are  determined  where 
the  intention  of  the  grantor  is  not  clearly  expressed.  If  the 
estate  in  the  trustee  is  expressly  limited  for  life,  the  fact 
that  it  is  not  altogether  sufficient  to  support  the  equitable  es- 
tate will  not  enable  a  court  of  equity  to  enlarge  it  by  construc- 
tion.**"     And  so  also  if  the  estate  in  the  trustee  is  larger  than 

77  Ala.  223;  Boone  v.  Davis,  64  Miss.  133.  Words  of  limitation  are 
not  now  required,  in  a  number  of  the  States,  in  order  to  create  an  es- 
tate in  fee.  The  above  statement  applies  only  to  those  States  where 
the  common-law  rule,  in  respect  to  words  of  limitation,  still  prevails. 
"  Where  a  settlor  by  deed  conveys  an  equitable  estate  in  fee  simple 
to  trustees  without  words  of  limitation,  in  order  that  the  equitable  fee 
simple  may  pass  to  them,  it  is  necessary  that  the  settlor  should  either 
refer  to  other  words  in  that  or  some  other  deed  which  show  an  in- 
tention that  the  absolute  interest  is  to  pass  to  them,  or  that  he  should 
use  words  which  show  that  the  trustees  are  to  take  all  the  estate  and 
interest  that  the  settlor  had."  In  re  Irwin  (Eng.  1904),  73  Law  J. 
Ch.  832  [1904],  2  Ch.  752;  Irwin  V.  Parkes,  Id.  "A  deed  to  a  re- 
ligious society's  trustees  and  their  successors,  in  fee,  without  restriction 
or  limitation,  does  not  create  a  trust."  Shaeffer  v.  Klee  (Md.  1905), 
59  Atl.  Rep.  850. 

58  Doe  V.  Davis,  1  Q.  B.  438 ;  Doe  v.  Barthrop,  5  Taunt.  382 ;  Barker 
V.  Greenwood,  4  M.  &  W.  421;  Doe  v.  Ewart,  7  A.  &  E.  636;  Ward 
V.  Amory,  1  Curtis  C.  Ct.  419;  Wells  v.  Heath,  10  Gray,  25;  Norton  v. 
Norton,  2  Sandf.  296;  Bush's  "Appeal,  33  Pa,  St.  85;  Pearce  v.  Savage, 
45  Me.  90;  Renziehausen  v.  Keyser,  48  Pa.  St.  351. 

«o  Waiter  v.  Hutchinson,  I  B.  &  C.  721;  Evans  v.  King,  3  Jones  Eq. 

•    387.     It  is  possible  that  this  strict  rule  would  not  be  observed  generally 

in  this  country.     At  any  rate,  even  an  express  limitation  for  life  to  the 

trustees  may  probably  be  enlarged  into  a  fee  by  construction,  if  the  deed 

gave  affirmative  evidence  of  the  donor's  intention  that  the  trustee  is  to 

546 


CH.   XIV.]  TRUSTS.  §  372 

the  equitable  estate,  but  the  latter  is  uncertain  and  indefinite 
in  its  duration,  there  will  be  no  execution  of  the  resulting  use 
in  the  grantor  until  the  trust  has  terminated,  or  has  been 
rendered  certain.  The  uncertainty  of  duration  of  the  trust 
makes  the  resulting  use  contingent,  corresponding  somewhat  to 
the  legal  possibility  of  reverter."^ 

§  372.  Doctrine  of  remainders  applied  to  tmsts. —  If  the 
future  estate  in  a  trust  is  contingent,  and  is  preceded  by 
a  particular  estate,  the  destruction  of  the  particular  estate 
by  the  act  of  the  first  cestui  que  trust,  or  its  natural  termina- 
tion before  the  happening  of  the  contingency,  does  not  defeat 
the  contingent  trust,  as  it  would  have  done  if  the  future 
estate  had  been  a  legal  contingent  remainder,  or  one  by  way 
of  use.  The  future  estate  in  a  trust  is  altogether  independent 
of  the  prior  estate,  and  need  not  necessarily  take  effect  im- 
mediately upon  the  termination  of  the  latter.^^  g^^  ^he  rule 
in  Shelley's  Case,  which  has  already  been  explained,  applies 
generally  to  all  executed  trusts,  so  that  when  an  estate  is 
limited  in  trust  to  A.  for  life  and  remainder  in  fee  to  his 
heirs,  A.  will  be  considered  cestui  que  trust  in  fee,  but  this 
rule  does  not  apply  to  executory  trusts,  and  wherever  it  is 
the  clearly  expressed  intention  of  the  grantor  that  the  trust 
shall  not  vest  in  fee  in  the  first  taker,  the  rule  will  not  be 
enforced,  and  the  heirs  will  take  as  independent  purchasers.®' 

have  as  large  an  estate  as  the  nature  of  the  trust  requires.  "  The  es- 
tate of  a  trustee  in  real  estate  is  commensurate  with  the  powers  con- 
ferred by  the  trust  and  the  purposes  to  be  efTected  by  it."  Olcott  f. 
Tope  (111.  1904),  115  111.  App.  121;  decree  affirmed,  72  N.  E.  Rep.  751, 
213  ni.   124. 

«i  Doe  f.  Ewart,  7  A.  &  E.  636;  Doe  v.  Davies,  1  Q.  B.  437;  Doe  r. 
Nichols,  1  B.  &  C.  341;  Bush's  Appeal,  33  Pa.  St.  85;  Morgan  V. 
Moore,  3  Gray,  323;  Selden  V.  Vermilya,  3  Comst.  525;  Cumberland 
V.  Graves,  9  Bark.  595. 

«2  2  Washburn  on  Real  Prop.  463;  Fearne  Cont.  Rem.  304;  305;  1 
Spence  Eq.  Jur.  505;  1  Prest.  Abstr.  146;  Scott  V.  Seart»orough,  1 
Beav.  168;  Wainwright  V.  Sawyer,  150  Mass.  168;  People's  Sav.  Bank 
i;.  Denig,  131  Pa.  St.  241;  Barnes  v.  Dow,  59  Vt.  530. 

«3Tud.  Ld,  Gas.  503,  504;  2  Washburn  on  Real  Prop.  455;   1  Spence 

547 


I  373  1  TRUSTS.  [part   II. 

§  373.  How  created  and  assigned. —  Like  uses  before  the 
statute,  no  particular  form  of  words  is  necessary  in  the  crea- 
tion and  declaration  of  trusts.  Any  words  which  manifest 
the  intention  that  the  person  named  shall  have  the  beneficial 
interest  in  the  estate  will  be  sufficient.**    And  even  words, 

Eq.  Jur.  503;  Croxall  v.  Shererd,  5  Wall.  281.  "The  assent  of  a  life 
tenant  of  a  trust  fund  to  an  impairment  of  the  fund  cannot  bind  the 
remainderman,  but  they  are  entitled  to  the  income  from  an  unim- 
paired fund."  Bennett  v.  Pierce  (Mass.  1905),  74  N.  E.  Rep.  360,  188 
Mass.   186. 

8*  Co.  Lit.  290  b,  note  249,  Sec.  14;  1  Spence  Eq.  Jur.  506,  607; 
Gomez  V.  Tradesman's  Bk.,  4  Sandf.  102;  Ames  V.  Ashley,  4  Pick.  71; 
Scituate  v.  Hanover,  16  Pick.  222;  Fisher  V.  Fields,  10  Johns.  495; 
Zaver  v.  Lyons^  40  Iowa,  510;  Smith  v.  Ford,  48  Wis.  115;  Hill  V. 
Den,  54  Cal.  6;  Richardson  V.  Inglesby,  13  Rich.  Eq.  59;  Lyle  V.  Burke, 
40  Mich.  499;  Morrison  V.  Kinstra,  55  Miss.  71;  Kitchen  V.  Bedford, 
13  Wall.  413;  Russell  V.  Switzer,  63  Ga.  711;  Wallace  v.  Wainwright, 
87  Pa.  St.  263;  Selden's  Appeal,  31  Conn.  548;  McElroy  v.  McElroy, 
113  Mass.  509;  Wheeler  v.  Smith,  9  How.  55;  Slocum  V.  Marshall,  2 
Wash.  C.  Ct.  397;  Taft  V.  Taft,  130  Mass.  461;  Toms  t;.  Williams,  41 
Mich.  552;  Whitcomb  V.  Cardell,  45  Vt.  24;  O'Rourke  v.  Beard  (Mass.), 
23  N.  E.  Rep.  576;  O'Riley  V.  McKiernan  (Ky.),  13  S.  W.  Rep.  360; 
Walburton  v.  Camp,  55  N.  Y.  Super.  Ct.  290;  Saunderson  v.  Broadwell, 
82  Cal.  132;  Hellman  v.  Mc Williams,  70  Cal.  449;  Carter  v.  Gibson 
(Neb.),  45  N.  W.  Rep.  634;  Phipard  v.  Phipard,  55  Hun  433;  Gaion  V. 
Williams,  7  N.  Y.  S.  786;  Kintner  v.  Jones,  122  Ind.  148;  Macy  v.  Wil- 
liams, 55  Hun  489.  The  words  used  not  only  must  show  clearly  an 
intention  to  create  a  trust,  but  they  must  themselves  create  the  trust, 
as  verba  de  prcesenti.  A  promise  to  create  a  trust,  if  voluntary  will 
not  raise  a  trust,  either  express  or  implied,  while  such  a  promise  for  a 
valuable  consideration,  would  raise  an  implied  trust,  which  would  be 
enforced  by  a  court  of  equity.  Young  v.  Young,.  80  N.  Y.  422;  Del- 
liger's  Appeal,  71  Pa.  St.  425;  Hays  V.  Quay,  68  Pa.  St.  263;  Martin 
V.  Funk,  75  N.  Y.  134;  Olney  v.  Howe,  89  111.  556;  Andrews  V.  Hob- 
son,  23  Ala.  219;  Wyblc  v.  McPheters,  52  Ind.  393;  Estate  of  Webb, 
49  Cal.  541;  Neves  v.  Scott,  9  How.  196;  Blanchard  ».  Sheldon,  43 
Vt.  512;  Minor  v.  Rogers,  40  Conn.  512;  Adams  t'.  Adams,  21  Wall. 
185;  Taylor  V.  Henry,  48  Md.  550;  Ownes  V.  Ownes,  23  N.  J.  Eq.  60; 
McNulty  V.  Cooper,  3  Gill.  &  J.  214;  Davis  v.  Ney,  125  Mass.  590.  "  An 
intended,  bttt  imperfect,  gift  cannot  be  enforced  as  a  trust,  where  the 
essential  elements  of  a  declaration  of  trust  cannot  be  fairly  inferred." 
Brown  v.  Crafts  (Me.  1903),  56  Atl.  Rep.  213,  98  Me.  40.  "A  will  de- 
vising land  to  testator's  wife  for  life,  '  in  trust  by  her  for  the  bene- 
548 


CH.   XIV.]  TRUSTS.  §   373 

which  in  their  ordinary  acceptation  are  precatory  instead  of 
being  mandatory,  when  used  by  a  testator  in  respect  to  the 
estate  devised,  will  be  sufficient  to  raise  a  trust,  if  from  the 
whole  will  a  clear  intention  to  create  a  trust  may  be  gathered. 
Thus,  the  words  entreat,  desire,  hope,  recommend,  etc.,  have 
been  held  to  declare  a  trust.  But  there  must  be  no  doubt  or 
uncertainty  as  to  the  person  who  is  to  be  benefited,  or  as  to 
the  property  to  be  subjected  to  the  trust,  and  the  intention  of 
the  testator  must  be  fully  established  by  a  fair  construction 
of  the  will.^'  It  has  also  been  held  that  no  trust  is  created 
in  the  children  of  the  devisee,  where  the  devise  was  made  to 
her  "for  the  sole  use  of  herself  and  children,"  where  the 
intention  was  to  make  them  tenants  in  common  or  remainder- 
men with  the  mother,  is  not  more  clearly  manifested  in  the 
will.®"  The  declaration  must,  and  can  only,  be  made  by  the 
owner  of  the  legal  estate ;  but  for  the  creation  of  the  trust  it 

fit  of '  certain  beneficiaries,  and  directing  that  after  her  death  it  be 
sold  and  the  proceeds  divided  between  the  beneficiaries,  but  not  nam- 
ing any  purpose  of  a  trust,  does  not  create  a  trust."  Bank  of  Ukiah 
V.  Rice  (Cal.  1904),  76  Pac.  Rep.  1020. 

«5Pennoek's  Estate,  20  Pa.  St.  274-280;  Foose  v.  Whitmore,  82  N. 
Y.  405;  Dresser  v.  Dresser,  46  Me.  48;  Spooner  v.  Lovejoy,  108  Mass. 
529;  Parsley's  Appeal,  70  Pa.  St.  153;  Williams  V.  Worthington,  49 
Md.  572;  Cook  v.  Ellington,  6  Jones  Eq.  371;  Tolson  v.  Tolson,  10 
Gill.  &  J.  159;  Young  v.  Young,  69  N.  C.  309;  McKee's  Admrs.  v. 
Means,  34  Fla.  349;  Enders  v.  Tasco  (Ky.),  11  S.  W.  Rep.  818;  Baker 
V.  Brown,  146  Mass.  369;  Noe  V.  Kern,  93  Mo.  367;  Wood  v.  Camden, 
etc..  Trust  Co.  (N.  J.),  14  Atl.  Rep.  885;  Colton  v.  Colton,  127  U.  S. 
300;  Taylor  v.  Martin  (Pa.),  8  Atl.  Rep.  928;  Solomon  v.  Lawrence,. 
52  N.  Y.  Super.  Ct.  164;  McClernan  v.  McClernan  (Md.),  20  Atl.  Rep.. 
908;  Rose  v.  Hatch,  125^N.  Y.  427;  Ingersoll's  Wills,  59  Hun  571;  Whit- 
comb's  Estate,  86  Cal.  265.  See  also  2  Pom.  Eq.  Jur.,  Sees.  1014-1017. 
But  see  Phillips  v.  Phillips,  112  N.  Y.  197;  Fullenwider  v.  Watson,  11» 
Ind.  18;  Sturgis  v.  Paine,  146  Mass.  354;  In  re  Haven's  Estate,  6  Dem.. 
456;  Sale  f.  Thornsberry  (Ky.),  5  S.  W.  Rep.  468;  Lawrence  v.  Cooke» 
104  N.  Y.  632;  Balfer  v.  Willigord,  70  Iowa  620;  Rose  V.  Porter,  141 
Mass.  309;  Hopkins  f.  Glunt,  111  Pa.  St.  287;  Corby  v.  Corby,  85  Mo. 
371;  Ziramer  v.  Sennott  (HI.),  25  N.  E.  Rep.  774;  Randall  v.  Randall, 
(111.),  25  N.  E.  Rep.  780. 

««  Small  V.  Field,  102  Mo.  104. 

549 


§  373  TRUSTS.  [PAKr    II. 

is  not  necessary  to  transfer  the  legal  estate  to  a  third  person 
as  trustee.  A  simple  declaration  by  the  owner  of  the  land 
that  he  holds  it  in  trust  for  another,  will  transfer  the  beneficial 
interest  to  the  latter,  and  convert  the  legal  owner  into  a 
trustee,  provided  the  requisite  consideration  is  present  in  the 
grant."  And  it  is  not  even  necessary  that  the  declaration 
should  be  made  to  the  proposed  cestui  que  trust.  It  may  be 
made  without  his  knowledge  and  yet  be  good,  if  he  accepts  it 
within  a  reasonable  time  after  he  has  heard  of  its  existence" 
The  declaration  must  of  course,  particularly  where  it  is  testa- 
mentary, contain  words  of  description  sufficient  to  identify  the 
cestui  que  trust.'^^  So,  also,  a  truot  cannot  be  created  in  a 
deed  by  a  declaration  that  a  third  party  shall  hold  in  trust 
for  the  grantee  the  property  which  is  formally  conveyed  by 
the  deed  to  the  grantee.'^'*  It  is  different  in  the  cases  of 
devises  where  the  special  intent  of  the  testator  to  make  a 
trust  could  be  carried  out.^^ 

«T  1  Spence  Eq.  Jur.  507;  Crop.  v.  Norton,  2  Atk.  76;  Suarez  v. 
Pompelly,  2  Sandf.  Ch.  336;  Morrison  v.  Beirer,  2  Watts  &  S.  81; 
Uraun  V.  Coats,  109  Mass.  581;  Young  v.  Young,  80  N.  Y.  422;  Tan- 
ner V.  Skinner,  11  Bush.  120;  Taylor  v.  Henry,  48  Md.  550;  Ray  V.  Sim- 
mons, 11  R.  I.  266;  Minor  v.  Rodgers,  40  Conn.  512;  Boykin  v.  Pace's 
Exr.,  64  Ala.  68;  Hill  V.  Den,  54=  Cal.  6;  Baldwin  v.  Humphrey,  44  N". 
H.  609;  Bond  v.  Bunting,  78  Pa.  St.  210;  Titehenell  v.  Jackson,  26  W. 
Va.  460.  But  see  Scales  V.  Maude,  6  De  G.  M.  &  G.  43;  Warriner  v. 
Rogers,  L.  R.  16  Eq.  340. 

88  Barren  V.  Joy,  10  Mass.  221;  Ward  v.  Lewif ,  4  Pick.  521;  Beyant 
r.  Russell,  23  Pick.  508;  Berly  v.  Taylor,  5  Hill  577;  Shepherd  V.  Mc- 
Evers,  4  Johns.  Ch.  136;  Scull  v.  Reeves,  2  Green  Ch.  84;  Skipwith's 
Ex'rs.  V.  Cunningham,  8  Leigh  271. 

eo  Read  v.  Williams,  8  N.  Y.  S.  24 ;  In  re  Foley's  Will,  10  N.  Y.  S. 
12.  "  In  the  creation  of  a  trust  by  \7ill  or  deed  the  beneficiary  must 
be  a  definite,  certain,  ascertainable  pei  5on,  natural  or  corporate,  other- 
wise the  trust  must  fail."  Wea/er  v.  Spurr  (W.  Va.  1904),  48  S.  E. 
Rep.  852.  "  A  trust  will  not  fail  merely  because  Oi  uncertainty  in 
whom  the  fee  will  vest  in  case  the  first  beneficiary  dies  leaving  issue  — 
a  contingency  which  may  not  arise."  Orr  v.  Yates  (111.  1904),  70  N. 
E.  Rep.  731,  209  111.  222. 

'0  Annin  v.  Wilson.  15  Col.  236. 

11  But  see  Pebling's  Estate,  138  Pa.  St.  442, 
550 


CH.    XIV.]  TRUSTS.  §  374 

§  374.  Statute  of  Frauds.— Before  the  Statute  of  Frauds 
a  trust  could  be  created  or  transferred  by  an  oral  declaration. 
No  writing  was  necessary  for  its  valid  creation.  But  the 
Statute  of  Frauds  requires  that  all  declarations  or  creations 
of  trusts  should  be  manifested  and  proved  by  some  instrument 
in  writing  signed  by  the  party  creating  the  trust.  But  the 
statute  necessarily  does  not  apply  to  implied,  resulting  and 
constructive  trusts,  and  the  original  English  statute  expressly 
excepted  them  from  its  operation.  These  trusts  may,  there- 
fore, be  proved  by  parol  evidence.'"  The  statute,  however, 
covers  all  express  trusts,  and  these  must  invariably  be  proved 
by  some  writing,"  But  it  is  not  required  that  the  trust 
shall  be  created  by  some  instrument  in  writing.  The  writing 
is  only  necessary  for  its  proof.  Therefore  the  writing  need 
not  have  been  made  for  the  purpose  of  creating  or  declaring  a 
trust;  it  can  act  by  way  of  an  admission,  as  evidence  of  an 
existing  trust.^*     The  statute  only  requires  the  writing  to 

72  2  Washburn  on  Real  Prop.  445,  446,  447;  1  Spence  Eq.  Jur.  497,  512. 
See  ante,  Sees,  364,  368.  "  Under  the  express  provisions  of  Rev,  St. 
Mo.  1899,  Sec  3417,  the  statute  of  frauds  has  no  application  to  an  ac- 
tion to  establish  a  resulting  trust  relating  to  lands."  McMurray  v. 
McMurray  (Mo.  1904),  79  S.  W.  Rep.  701.  "Constructive  trusts  are 
not  within  the  statute  of  frauds."  Avery  v.  Stewart  (N.  C.  1904),  48 
S,  E.  Rep.  775. 

73  Hall  V.  Young,  47  N.  H.  134 ;  Bartlett  f.  Bartlett,  14  Gray  278 ; 
Bragg  V.  Paulk,  42  Me.  502;  Moore  f.  Moore,  38  N.  H.  382;  Hear  V. 
Pujol,  44  Cal.  230;  Movan  v.  Hays,  1  Johns.  Ch.  339;  Lynch  v. 
Clements,  24  N,  J,  Eq,  431;  Patton  v.  Beecher,  62  Ala.  599;  Cornelius 
V.  Smith,  55  Mo,  528;  Ambrose  v.  Otty,  1  P.  Wnis.  322;  Wolford  v. 
Farnham,  44  Minn.  159.  See  Shelton  v.  Shelton,  5  Jones  Eq.  292; 
Osterman  v.  Baldwin,  6  Wall.  116;  Bates  v.  Hurd,  65  Me.  180;  Homer 
V.  Homer,  107  Mass.  82;  Faxon  v.  Folvey,  110  Mass,  392;  Fordyce  v. 
Willis,  3  Bro,  Ch.  677 ;  Wallace  v.  Wainwright,  87  Pa,  St,  263 ;  Barnes 
V.  Taylor,  27  N,  J,  Eq,  259;  Packard  v.  Putnam,  57  N.  H.  43;  De- 
Laurengel  v.  De  Boom,  48  Cal.  581;  Reid  v.  Reid,  12  Rich,  Eq.  213; 
Kingsbury  v.  Burnside,  58  111.  310;  Gibson  f.  Foote,  40  Miss.  788. 

74  1  Cruise  Dig.  390 ;  Foster  V.  Vale,  3  Ves.  707 ;  Ambrose  v.  Am- 
brose, 1  P.  Wms.  322;  Davis  r.  Otty,  33  Beav.  540;  Steer  v.  Steer,  5 
Johns.  Ch.  1;  Jackson  V.  Moore,  6  Cow.  706;  McClellan  r.  McClellan,  65 
Me.  500;  Movan  v.  Hays,  1  Johns.  Ch.  339;  Pinney  v.  Fellows,  51  Vt. 

551 


§  374  TRUSTS.  [part  II. 

show  that  there  is  a  trust,  and  to  give  its  limitations.  If  the 
writing  is  but  an  imperfect  presentation  of  the  trust  and  the 
terms  there  stated  are  uncertain,  the  trust  will  not  be  en- 
forced. Parol  evidence  is  not  admissible  to  supply  what  has 
been  omitted.^'  Letters,  indorsements  on  envelopes,  acknowl- 
edgments and  admissions  in  equity  pleadings  have  been  "held 
sufficient  writing  for  the  proof  of  a  trust.^*  But  they  are  not 
conclusive.''^  The  foregoing  statements  in  respect  to  the 
informality,  which  is  permissible  in  the  declaration  of  trusts, 
have  reference  only  to  transactions  of  this  sort  inter  vivos.  If 
the  trust  is  declared  animo  testandi,  all  the  formalities  required 

625;  Cornelius  f.  Smith,  55  Mo.  528.  But  the  evidence  must  in  that  case 
be  clear  and  free  from  doubt.     Rogers  v.  Rogers,  87  Mo.  251. 

75  Foster  v.  Vale,  3  Ves.  707;  Wright  v.  Wright,  1  Ves.  Sr.  409; 
Brydges  v.  Brydges,  3  Ves.  120 ;  Steere  v.  Steere,  5  Johns.  Ch.  1 ;  Park- 
hurst  V.  Van  Courtlandt,  1  Johns.  Ch.  273;  Abeel  v.  Radcliffe,  13 
Johns.  297;  Patton  v.  Beecher,  62  Ala.  579;  Russell  V.  Switzer,  63  Ga. 
711;  Wheeler  v.  Smith,  9  How.  55,  2  Pom.  Eq.  Jur.,  Sec.  1009.  "A 
mere  parol  agreement  to  convey  land  to  another  raises  no  trust  in  the 
latter's  favor,  and  comes  within  the  provisions  of  the  statute  of  frauds." 
Avery  v.  Stewart  (N.  C.  1904),  48  S.  E.  Rep.  775.  "To  take  an  oral 
trust  out  of  the  statute  of  frauds  on  the  ground  of  the  obtention  of  the 
legal  title  through  fraud,  an  element  of  positive  fraud  must  be  shown." 
Ammonette  v.  Black  (Ark,  1904),  83  S.  W.  Rep.  910. 

76  Foster  v.  Vale,  3  Ves.  696;  Smith  v.  Mathews,  3  De  G.  F.  &  J. 
139;  Montague  v.  Hayes,  10  Gray,  609;  Pratt  v.  Ayer,  3  Chand.  265; 
Fisher  v.  Fields,  10  Johns.  495;  Union  Mut.  Ins.  Co.  V.  Campbell,  95 
111.  267;  De  Laurencel  V.  De  Boom,  48  Cal.  581;  Moore  v.  Pickett,  62 
111.  158;  Kingsbury  V.  Burnside,  58  111.  H^O;  McClellan  v.  McClellan, 
65  Me.  500;  Bates  v.  Hurd,  65  :ie.  180;  Packard  v.  Putnam,  57  N.  H. 
43;  Baldwin  v.  Humphrey,  44  N.  Y.  609;  Ivory  v.  Burns,  56  Pa.  St. 
300;  Johnson  V.  Delaney,  35  Texas,  42;  Patton  v.  Chamberlain,  44 
Mich.  5;  Broadrup  v.  Woodman,  27  Ohio  St.  553;  Loring  v.  Palmer,  118 
U.  S.  321;  Weaver  V.  Emigrant,  etc..  Say.  Bank,  17  Abb.  N.  C.  82; 
Titchenell  v.  Jackson,  26  W.  Va.  754;  McCandless  v.  Warner,  26  W. 
Va.  754;  Macy  v.  WMlliams,  8  N.  Y.  S.  658;  55  Hun  489;  Fowler  v. 
Bowery  Sav.  Bank,  47  Hun  390. 

77Parkham  v.  Suffolk  Sav.  Bank  (Mass.),  24  N.  E.  Rep.  43;  Beaver 
V.  Beaver,  117  N.  Y.  421. 


552 


CH.   XIV.]  TRUSTS.  §  37$ 

in  the  execution  of  wills,  must  here  be  observed  in  the  declara- 
tion of  the  trust.''^ 

§  375.  How  affected  by  want  of  a  trustee. —  The  trust  is 
never  allowed  to  fail  because  there  is  no  trustee  to  hold  the 
legal  estate.  And  it  matters  not  from  what  cause  the  failure 
of  the  trustee  may  arise,  equity  follows  the  land  into  whose- 
soever hands  it  may  fall,  and  compels  them  to  hold  the  legal 
estate  subject  to  the  trust.  The  court  will  either  compel  the 
owner  of  the  legal  estate  to  perform  the  trust,  or  it  will 
appoint  another  to  act  as  trustee,  and  direct  a  conveyance  to 
him." 

§  376.  Removal  of  trustees. —  The  court  of  equity  has  the 
general  power  to  appoint  new  trustees  whenever  the  interests 
of  the  cestui  que  trust  demand  such  appointment.  If  the 
trustee  leaves  the  State,  loses  his  mind,  becomes  insolvent,  or 
does  anything  else  which  makes  it  prejudicial  to  the  cestui 
que  trust  for  him  to  remain  in  charge  of  the  trust,  the  court 
may  remove  him  and  appoint  another  in  his  stead.®"     And 

78  Chase  V.  Stockett  (Md.),  19  Atl.  Rep.  761.  "Under  the  express 
provision  of  Civ.  Code  1895,  Sec.  3153,  all  express  trusts  must  be  in 
writing."  Eaton  v.  Barnes  (Ga.  1904),  49  S.  E.  Rep.  593.  "A  deed 
conveying  property  to  be  held  in  trust  for  a  third  party,  where  such 
trust  is  in  parol,  is  void  under  the  statute  of  frauds,  and  cannot  bo 
enforced  against  the  grantee."  Rogers  v.  Richards  (Kan.  1903),  74  Pac. 
Rep.  255.  "  A  written  declaration  of  trust,  made  after  a  conveyance 
of  real  estute  upon  a  parol  trust  agreement,  is  valid  and  enforceable.'* 
Gallagher  v.  Northrup   (111.  App.  1904),  114  111.  App.  368. 

79  Co.  Lit.  290  b,  note  249,  Sec.  4 ;  1  Cruise  Dig.  403,  460 ;  Wilson  V. 
Towle,  36  N.  H.  129;  Shepherd  v.  McEvars,  4  Johns.  Ch.  136;  Adams  v. 
Adams,  21  Wall,  185;  Peter  v.  Beverly,  10  Pet.  532;  Crocheron  v, 
Jaques,  3  Edw,  Ch.  207 ;  Druid  Park,  etc.,  Co.  v.  Dettinger,  53  Md.  46 ; 
Cloud  V.  Calhoun,  10  Rich.  Eq.  358;  Mills  v.  Haines,  3  Head,  335; 
White  V.  Hampton,  10  Iowa,  244;  «.  c.  13  Iowa,  261;  ISchlessenger  V. 
Mallard,  70  Cal.  326;  Kenady  v.  Edwards,  134  U.  S.  117;  Chesnutt  v. 
Gann,  76  Tex.  150. 

80  2  Washburn  on  Real  Prop.  475;  Sparhawk  v.  Sparhawk,  114  Mass. 
356;  Scott  V.  Rand,  118  Mass.  215;  Shepherd  v.  McEvers,  4  Johns.  Ch. 
136;  Bloomer'8  Appeal,  83  Pa.  St.  46;  McPherson  v.  Cox,  96  U.  S.  404; 

553 


§  376  TRUSTS.  [part   II. 

althoufrh  at  common  law  tho  lejjal  ostate  in  trust,  upon  the 
death  of  the  trustee,  descended  to  his  heirs  to  be  administered 
by  them,  and  this  is  still  the  general  rule,  yet  if  it  wouhi  be 
beneficial  to  the  estate  that  a  new  trustee  be  appointed,  the 
court  may  do  so.*"^  By  recent  statutes  in  England,  and  in 
some  States,  the  appointment  of  a  new  trustee  is  made  to 
operate  upon  the  legal  title,  and  pass  it  to  him  from  the 
former  trustee.*^  But  where  there  is  no  statute  of  that  kind 
the  appointment  does  not  effect  a  transfer  of  the  legal  estate. 
A  court  of  equity,  in  making  the  appointment,  at  the  same 
time  decrees  a  conveyance  to  the  new  trustee,  and  will 
punish  for  contempt  of  court  if  the  holder  of  the  legal 
title  refuses.*^ 

Satterfield  ,t;.  John,  53  Ala.  121;  No.  Ca.  R.  R.  r.  Wilson,  81  N.  C.  223 
Preston  t'.  Wilcox,  38  Mioh.  578;  Green  v.  Blackwell,  31  N.  J.  Eq.  37 
Re  JIayfield,   17  Mo.  App.  684;   City  Council   v.  Walton,   77  Ga.   517 
Loveman  r.  Taylor,  85  Tcnn.  1;  Morgan's  Estate,  8  Pa.  Co.  Ct.  260.     In- 
solvency does  not,  however,  incapacitate  the  trustee  to  act  as  long  as  the 
court  does  not  remove  him.     Rankin  V.  Barcroft,  114  111.  441. 

812  Washburn  on  Real  Prop.  476,  477;  3  Kent's  Com.  311;  Lewin  on 
Tr.  303;  Boone  V.  Childe,  10  Pet.  213;  Berrien  v.  McLane,  HoflFm.  Ch. 
420;  Clark  v.  Taintor,  7  Cush.  567;  Warden  v.  Richards,  11  Gray,  277; 
Evans  V.  Shew,  71  Pa.  St.  47;  Gray  v.  Henderson,  71  Pa.  St.  368; 
Dunning  v.  Ocean  Nat.  Bk.,  6  Lans.  396.  In  New  York,  by  statute 
the  trust  is  made  to  vest  in  the  Supreme  Court,  instead  of  descending 
to  the  heirs  of  the  deceased  trustees.  1  R.  S.  N.  Y.  730,  Sec.  68.  See 
Ross  V.  Roberts,  2  Hun  90;  Clark  V.  Crego,  51  N.  Y.  647.  Such  seems 
also  to  be  the  statutory  rule  in  Michigan  and  Wisconsin;  2  Washburn 
on  Real  Prop.  470.  If  the  trustee  devises  his  trust-estate,  as  he  may  do 
if  not  prohibited  by  statute,  his  devisee  takes  the  place  of  his  heir, 
and  may  perform  the  trust.  Marlow  V.  Smith,  P.  Wms.  198;  Titley 
r.  Wolstenholme,  7  Beav.  425. 

82  Stat.  15,  16,  Vict.  Ch.  55,  Sec.  1;  Parker  v.  Converse,  5  Gray, 
336;  McNish  V.  Guerard.  4  Strobh.  Eq.  66;  Rev.  Stat.  Conn.  Tit.  12; 
Sec.  22;  King  v.  Bell,  2S  Conn.  598. 

83  0'Keefe  ?.  Calthorpe,  1  Atk.  17;  Ex  parte  Greenhouse,  1  Madd. 
109;  Berrier  v.  McLane,  HoflFm.  Ch.  420;  Webster  v.  Vandeventer,  6 
Gray,  428;  Wallace  r.  Wilson,  34  Miss.  357;  Young  v.  Young,  4  Cranch, 
499.  "  The  power  of  a  court  of  chancery  to  appoint  a  trustee  in  place 
of  a  single  trustee,  who  is  totally  disabled  from  the  performance  of 
the  duties  of  the  trust,  includes  power  to  appoint  a  co-trustee  with 

554 


CH.    XIV.],  TRUSTS.  §  377 

§  377.  Refusal  of  trustee  to  serve. —  No  one,  by  the  unau- 
thorized appointment  of  another,  can  be  compelled  to  act  as 
trustee.  To  make  the  performance  of  the  trust  obligatory,  he 
must  accept  the  trust  expressly,  or  so  interfere  with  the 
trust  property  as  to  raise  the  presumption  that  he  has  accept- 
ed.** But  when  he  has  accepted  it  expressly  or  impliedly, 
he  cannot  of  his  own  motion  abandon  it,  or  refuse  to  perform 
the  duties.  The  court  may,  in  the  exercise  of  its  discretion, 
relieve  him  from  his  obligation  or  compel  him  to  serve,  which- 
ever course  best  subserves  the  interests  of  the  cestui  que 
trust  property  as  to  raise  the  presumption  that  he  has  accept- 
greater  effect  upon  the  validity  of  the  trust  than  would  his 
death,  or  a  failure  to  name  a  trustee  in  the  deed  creating  the 
trust.  Another  trustee  would  be  appointed  to  take  his  place. 
But  the  refusal  must  be  a  positive  disclaimer  of  the  trust ;  for 
otherwise  the  law  will  presume  that  the  trust  is  beneficial  to 
the  trustee  as  well  as  the  cestui  que  trust,  and  that  they  both 
have  accepted  it.  A  mere  oral  declination  will  not  prevent 
the  declining  trustee  from  subsequently  entering  upon  the 

him  to  aid  in  the  performance  of  those  duties."  Force  v.  Force  (N.  J. 
Ch.  1904),  57  Atl.  Rep.  973.  "Mere  unfriendliness  of  the  cestui  que 
trust  and  the  trustee  is  not  sufficient  ground  per  se  for  the  trustee's 
removal."  Polk  v.  Linthicum  (Md.  1905),  60  Atl.  Rep.  455.  'The 
refusal  of  a  trustee  to  give  full  information  to  th-  isestui 
que  trust  as  to  the  condition  of  the  trust  is  a  violation  of  the 
relation."       Woolf   v.   Barnes    (N.  Y.    Sup.    1905),   93   N.    Y.    S.   219. 

84  Baldwin  v.  Porter,  12  Conn.  473;  Scull  v.  Reeves,  2  Green  Ch.  4; 
Shepherd  v.  McEvers,  4  Johns.  Ch.  136;  Lewis  V.  Baird,  3  McLean, 
58;  Flint  V.  Clinton  Co.,  82  N.  H.  430;  Lyle  v.  Burke,  40  Mich.  499; 
Hearst  v.  Pojol,  44  Cal.  230;  Adams  v.  Adams,  21  Wall.  185;  Arm- 
strong V.  Morrill,  14  Wall.  120;  Montford  v.  Cadogan,  17  Ves.  485; 
Urch  V.  Walker,  3  My.  &  Cr.  702;  Barclay  v.  Goodloe's  Excr.,  83  Ky. 
493. 

88  Shepherd  v.  McEvers,  4  Johns.  Ch.  136;  Tainter  v.  Clark,  5  Allen, 
•66;  Cruger  v.  Halliday,  11  Paige,  319;  Bowditch  v.  Banuelos,  1  Gray, 
220;  Filchirst  v.  Stevenson,  9  Barb.  9;  Forshaw  v.  Higginson,  20  Beav. 
485;  Tilden  V.  Fiske,  4  Dem.  356;  Barclay  v.  Goodloe's  Exr.,  83  Ky. 
493.  "  A  trustee  has  no  authority  to  appoint  his  successor  unless  such 
authority  is  expressly  conferred  on  him."  Whitehead  v.  Whitehead, 
(Ala.  1904),  37  So.  Rep.  929. 

555 


§  378  TRUSTS.  [part   li. 

performance  of  the  trust,  if  his  place  has  not  actually  been 
filled  by  the  appointment  of  another;  and,  as  a  general  rule, 
the  court  will  not  make  such  an  appointment  until  the  trustee 
has  made  a  more  formal  disclaimer.^' 

§  378.  Survivorship. — -If  there  are  more  than  one  trustee 
they  take  and  hold  the  legal  estate  in  joint-tenancy.  If,  there- 
fore, one  of  them  dies,  the  estate  vests  in  the  survivors  to  the 
exclusion  of  the  heirs  of  the  deceased  trustee,  and  they  are 
generally  competent  to  administer  the  trust.  This  rule  is 
without  limitation  when  applied  to  executed  trusts,  but 
whether  an  executory  trust  survives  depends  upon  the  amount 
of  personal  confidence  reposed  in  them  all  as  one  body.^^  If 
the  special  powers  in  an  executory  trust  are  granted  to  the 
trustees  ratione  officii,  i.  e.,  given  in  general  terms  to  "  my 
trustees,"  the  ordinary  construction  is  that  such  trust  powers 
survive.^®  But  if  they  are  granted  to  them  nominatim,  indi- 
cating a  personal  confidence  in  the  discretion  of  each,  there 
will  be  no  survivorship.^*  The  same  rule  governs  the  right  to 
exercise  trust  powers  by  the  new  trustee  appointed  by  the 
court.     Ordinary  trust  powers  may  be  exercised  by  him,  but 

86Tainter  V.  Clarke,  13  Mete.  220;  Judson  v.  Gibbons,  5  Wend.  224; 
Cloud  V.  Calhoun,  10  Rich.  Eq.  358;  Adams  v.  Adams,  21  Wall.  185; 
Lyle  V.  Burke,  40  Mich.  499;  King  v.  Donnelly,  5  Paige  46;  Putnam's 
Free  School  v.  Fisher,  30  Me.  526;  Jones  V.  Moflfett,  5  Serg.  &  R. 
523. 

87  Lane  v.  Debenham,  11  Hare,  188;  Cole  v.  Wade,  16  Ves.  28;  War- 
burton  17.  Sands,  14  Sim.  622;  Franklin  V.  Osgood,  14  Johns.  553;  Peter 
V.  Beverly,  10  Pet.  564;  Jackson  v.  Schauber,  7  Cow.  194;  Saunders  «. 
Schmaelzle,  49  Cal.  59.  In  New  York,  if  one  of  two  or  more  trustees 
resign,  the  others  have  not  the  power  to  execute  the  trust,  in  the  same 
manner  as  if  he  were  dead.  Another  trustee  must  be  appointed  in  his 
place.     Van  Wick's  Petition,  1  Barb.  Cr.  570. 

88  Peter  v.  Beverly,  10  Pet.  564;  Jackson  v.  Given,  16  Johns.  167; 
Tainter  V.  Clarke,  13  Mete.  220;  Franklin  v.  Osgood,  14  Johns.  553;  Co. 
Lit.  113  a,  note,  146;  Story's  Eq.  Jur.,  Sec.  1062;  Cole  v.  Wade,  16 
Ves.  28;  Wells  v.  Lewis,  4  Mete.   (Ky.)   271,  Lewin  on  Tr.  239. 

89  See  preceding  note,  and  post,  See.  410. 

556 


CH.   Xiy.]  TRUSTS.  §  380 

those  involving  a  personal  confidence  die  with  the  removal 
of  the  trustee,  in  whom  the  confidence  was  reposed."** 

§  379.  Merger  of  interests. —  If  the  legal  and  equitable  es- 
tates of  a  trust  become  lawfully  united  in  one  person,  the 
equitable  is  merged  in  the  legal  estate,  in  accordance  with  the 
general  law  of  merger.  But  the  conjunction  of  the  two  estates 
in  one  person  will  not  produce  a  merger,  if  it  would  be  prej- 
udicial to  the  rights  of  any  one  lawfully  interested  in  the 
trust  property.  As  a  general  rule,  it  is  necessary  that  the 
equitable  estate  should  be  of  equal  extent  with  the  legal  estate, 
so  that  a  merger  might  take  place.®^ 

§  380.  Rights  and  powers  of  trustees. —  Their  rights  and 
powers  must  necessarily  vary  materially  with  the  character 
and  terms  of  the  trust.  So,  also,  do  the  rights  and  powers  of 
the  cestui  que  trust.  The  authority  of  the  former  is  greatest 
and  the  powers  of  the  latter  are  least  in  the  case  of  executory 
trusts,  while  the  converse  is  true  of  passive  trusts.  The 
powers,  that  either  may  have  in  active  trusts,  and  which  are 
peculiar  to  such  trusts,  are  wholly  dependent  upon  the  partic- 
ular provisions  of  each  trust,  and  no  general  rules  can  be 
laid  down  in  explanation  of  them."^     It  may  be  said  of  every 

»oCole  V.  Wade,  18  Ves.  44;  Hibbard  v.  Lamb,  Ambl.  309;  Doyleyr.^ 
Atty.-Gen.,  1  Eq.  Cas.  Abr.  195;  Burrill  v.  Shield,  2  Barb.  457;  Lewin 
on  Tr.  239. 

81  3  Prest.  Conv.,  1  Spence  Eq.  Jur.  508,  572 ;  Nicholson  v.  Halsey, 
7  Johns.  Ch.  422;  Rogers  v.  Rogers,  18  Hun  409;  Gardner  v.  Gardner, 
3  Johns.  Ch.  53;  Hopkinson  v.  Dumas,  42  N.  H.  307;  BoUes  V.  State 
Trust  Co.,  27  N.  J.  Eq.  308;  Cooper  v.  Cooper,  1  Halst.  Ch.  9;  James 
V.  Morey,  2  Cow.  284;  Badgett  v.  Keating,  31  Ark.  400;  Hunt  v.  Hunt, 
14  Pick.  374;  Selby  v.  Alston,  3  Ves.  339;  Wade  v.  Paget,  1  Bev.  Ch. 
363 ;  Butler  V.  Godley,  1  Dev.  94.  "  A  merger  of  legal  and  equitable 
estates  takes  place  only  when  the  trustee  is  the  sole  beneficiary." 
Robb  V.  Washington  and  Jefferson  College  (N.  Y.  Sup.  1905),  93  N.  Y. 
S.  92. 

•2  See  Morse  v.  Morrell,  82  Me.  80;  In  re  Roe,  119  N.  Y.  509;  Kenady 
V.  Edwards,  130  U.  S.  117;  Harris  V.  Petty,  66  Tex.  514;  Kintner  v. 
Jones,  122  Ind.  148. 

557 


§   380  TRUSTS.  [part   II. 

species  of  trusts  that  possessory  actions,  and  actions  for  the 
protection  of  the  legal  estate,  must  be  brought  by  the  trustee. 
The  cestui  que  trust  cannot  maintain  them.  In  a  court  of  law 
the  trustee  is  deemed  to  be  entitled  to  the  possession  of  the 
land,  and  may  even  oust  the  cestui  que  trv^t  from  possession. 
The  latter,  if  in  possession,  holds  it  merely  as  a  tenant  at 
sufferance  or  at  will.®^  Where  there  are  two  or  more  trus- 
tees, all  must  join  in  any  formal  act  under  the  trust,  partic- 
ularly if  the  exercise  of  discretion  is  required,  as  in  the 
case  of  a  sale  of  the  trust  property.®*  In  ordinary  informal 
proceedings,  the  act  of  one  is  deemed  to  be  the  act  of  all. 
But  they  are  not  responsible  for  the  unlawful  acts  of  each 
other  unless  they  participate  in  the  wrongful  acts,  or  are 
guilty  of  negligence  in  the  discharge  of  their  duties,  and  the 
wrongful  act  could  have  been  prevented  by  the  exercise  of 
ordinary  care.®"^     Whenever  the  trustees  violate  the  rights  of 

08  1  Cruise  Dig.  414;  2  Pom.  Eq.  Jur.,  Sec.  991;  Russell  v.  Lewis, 
2  Pick.  508;  Woodman  V.  Good,  6  Watts  &  S.  169;  Newton  V.  Mc- 
Lean, 41  Barb.  289;  Trustees,  etc.,  v.  Stewart,  27  Barb.  553;  Jackson 
V.  Van  Slick,  8  Johns,  487;  Beach  v.  Beach,  14  Vt.  28;  Williams  Ap- 
peal, 83  Pa.  St.  377.  And  as  legal  owner  of  the  land,  he  is  bound  to 
use  all  proper  diligence  in  collecting  rents  and  profits,  and  paying  off 
all  taxes  and  other  charges  against  the  estate.  Story's  Eq.  Jur.,  Sec. 
1280.  A  fiduciary  is  bound  to  exercise  the  diligence  of  a  prudent  man 
in  preventing  trust  property  in  his  charge  from  being  sold  for  taxes. 
Bourquin  v.  Bourquin  (Ga.  1904),  47  S.  E.  Rep.  639. 

9*  If,  however,  the  trust  is  a  public  one,  the  rule  does  not  apply.  In 
public  trusts,  in  the  absence  of  any  special  rule  or  law,  a  majority  of 
the  trustees  are  competent  to  act.  Wilkinson  v.  Mann,  2  Tyrwh.  586; 
Chambers  v.  Perry,  17  Ala.  726. 

»5  The  trustee  cannot  leave  the  entire  estate  in  the  hands  of  his  co- 
trustees.    And,  if  such  a  thing  does  occur  it  is  in  itself  a  clear  neg- 
lect of  duty;  if  the  co-trustee  has  been  enabled  to  violate  the  trust,  the 
former  will  be  responsible  for  the  wrongful  acts  of  the  latter,  whether 
they   be  acts  of  commission   or   omission.     Kip   v.  Deniston,   4   Johns. 
23;   Ward  V.  Lewis,  4  Pick.  518;   Towne  v.  Ammidon,  20  Pick.  535 
Spencer  v.  Spencer,  11  Paige  299;  Pim.  v.  Downing,  11  Serg.  &  R.  66 
Jones'  Appeal,   8   Watts  &  S.    143;    State  v.   Guilford,    15   Ohio  593 
Rayall's  Admr.  v.  McKenzie,  25   Ala.  363;   Edmonds  v.  Crenshaw,  14 
Pet.  166;  Irwin's  Appeal,  35  Pa.  St.  294;  Graham  v.  Davidson,  2  Dev. 
558 


CH.   XIV.]  TRUSTS.  §  381 

the  cestui  que  trust,  or  fail  or  refuse  to  perform  their  duty, 
courts  of  equity  are  the  proper  courts  to  apply  to  for  relief 
and  the  decrees  of  those  courts  are  paramount  in  all  questions 
relating  to  the  powers  and  duties  of  the  parties  to  a  trust.®" 
But  third  parties  cannot  avoid  their  contracts  with  trustees 
on  account  of  the  want  of  power  of  the  trustee,  if  they  have 
been  ratified  by  the  cestui  que  trust.^'^  An  injunction  will  lie 
against  a  trustee  for  committing  waste.®^ 

§  381.  Rights  and  powers  of  cestuis  que  trust. —  Where  it 
is  a  passive  trust,  the  rights  of  the  cestui  que  trust  are  in 
equity  almost  equivalent  to  legal  ownership.  The  trustee  has 
the  bare  legal  title,  and  may  be  compelled  by  chancery  to  do 

&  E.  Eq.  155.  But  if  he  is  not  the  acting  tnistee,  and  merely  joins  in 
tiie  execution  of  the  trust  in  some  particular  matter  for  the  sake  of 
-ormality,  as  where  he  signs  a  receipt  for  money  paid  to  the  co-trustee, 
he  will  not  be  liable  for  a  misappropriation  by  the  co-trustee.  Brice 
V.  Stokes,  11  Ves.  319;  Ingle  V.  Partridge,  32  Beav.  661;  Peter  v.  Bev- 
erly, 10  Pet.  531;  1  How.  134;  Taylor  v.  Benham,  5  How.  233;  Sinclair 
V.  Jackson,  8  Cow.  543.  See  Ormiston  V.  Olcott,  84  N.  Y.  339;  Brice 
V.  Stokes,  2  Eq.  Ld.  Cas.  1748-1805. 

88  Jones  V.  Dougherty,  10  Ga.  373;  Tucker  v.  Palmer,  3  Brev.  47; 
Bush  V.  Bush,  1  Strobh.  Eq.  377;  Den  v.  Troutma*!,  7  Ired.  155;  James 
V.  Cowing,  82  N.  Y.  449;  Williams  v.  Dwindle,  51  Cal.  442.  If  the  duty 
of  the  trustee  be  purely  discretionary,  the  court  will  not  compel  an 
execution.  Stanley  V.  Colt,  5  Wall.  168;  see  post,  Sec.  418.  Nor  will 
the  court  attempt  to  control  the  discretion  of  a  trustee  in  any  manner, 
except  to  prevent  an  unreasonable  exercise  of  it,  which,  on  account  of 
the  injury  to  the  beneficiaries,  could  not  have  been  intended  by  the 
donor.  Arnold  v.  Gilbert,  3  Sandf.  Ch.  531;  Zabriskie's  Exrs.  v.  Wet- 
more,  26  N.  J.  Eq.  18;  Pulpress  v.  African  Ch.,  48  Pa.  St.  204;  Starr 
V.  Moulton,  97  III.  525;  Vallette  v.  Bennett,  69  111.  632;  Phelps  t?. 
Harris,  51  Miss.  789;  Rammelsberg  v.  Mitchell,  29  Ohio  St.  22;  In  re 
Strutt's  Trusts,  L.  R.  16  Eq.  629;  Evans  v.  Bear,  L.  R.  10  Ch.  76;  lies 
V.  Martin,  69  Ind.  114. 

»7  Matheney  v.  Sandford,  26  W.  Va.  336.  "  Where  plaintiff  sues  as 
trustee  of  an  express  trust  concerning  lands,  defendant,  a  stranger  to 
the  agreement  relating  to  the  trust,  has  no  standing  to  contend  that 
it  is  void  because  not  created  in  writing."  Mallory  V.  Thomas  (Kan. 
1905),  81  Pac.  Rep.   194. 

»8  Moses  V.  Johnson,  88  Ala.  517. 

559 


§  382  TRUSTS.  [part  n. 

whatever  in  respect  to  the  legal  title  is  necessary  for  the  bene- 
ficial enjoyment  of  the  property  by  the  cestui  que  trust.  The 
latter  is  entitled  to  the  possession,  can  collect  the  rents  and 
profits  and  apply  them  to  his  use.  But  the  cestui  que  trust 
can  only  acquire  possession  against  the  will  of  the  trustee  by 
means  of  a  decree  in  equity.  A  court  of  law  would  sustain 
an  action  of  ejectment  by  the  trustee.  A  court  of  equity  will 
grant  the  possession  to  the  cestui  que  trust  if  consistent  with 
the  trust,  and  for  a  further  protection  may  enjoin  the  trustee 
from  proceeding  at  law  in  ejectment.®*  Wherever  the  code 
of  procedure  is  in  force,  as  a  matter  of  course,  these  distinc- 
tions as  to  the  relative  standing  of  the  trustee  and  cestui  que 
trust,  in  courts  of  law  and  of  equity,  have  been  necessarily 
abolished,  and  every  one  finds  an  appropriate  remedy  in  the 
same  civil  action,  and  in  the  same  court. 

§  382.  Alienation  of  tmst  estate. —  It  is  also  a  well  estab- 
lished rule  that  the  trustee  of  a  dry  or  passive  trust  may  be 
compelled  by  decree  in  chancery  to  convey  the  estate  as  the 
cestui  que  trust  may  direct.  And  this  rule,  it  would  seem, 
applies  to  every  species  of  trust  where  such  a  decree  is  not 
inconsistent  with  the  express  terms  of  the  trust.  Equity  will 
give  to  the  cestui  que  trust  the  full  power  to  dispose  of  the 
estate,  whenever  it  can  do  so  without  violating  the  express 
or  implied  purpose  of  the  trust,  and  without  doing  injury  to 
any  one  interested  therein.  Where  there  is  no  prohibition 
against  alienation,  the  execution  of  the  deed  of  conveyance  by 

ooLewin  on  Tr.  23,  470,  480;  Shankland's  Appeal,  47  Pa.  St.  113; 
Harris  v.  McElroy,  45  Pa.  St.  216;  Stevenson  v.  Lesley,  70  N.  Y.  512; 
Heard  v.  Baird,  40  Miss.  800;  Barkley  V.  Dosser,  15  Lea,  529.  See 
"Watts  V.  Ball,  1  P.  Wms.  108;  Lewis  v.  Lewis,  1  Car.  102;  Cholmon- 
deley  V.  Clinton,  4  Bligh  115.  But  if  there  are  other  persons  interested 
in  the  estate  the  court  may  either  refuse  to  decree  the  possession  to  the 
cestui  que  trust,  or  impose  such  conditions  and  restrictions  as  may  be 
necessary  for  the  protection  of  the  other  beneficiaries.  Shankland's 
Appeal,  supra;  Harris  V.  McElroy,  supra;  Battle  V.  Petway,  supra; 
Williamson  V.  Wilkins,  supra;  Barkley  v.  Dosser,  supra. 
560 


CH.    XIV.]  TRUSTS.  §  382 

trustee  and  cestui  que  trust  passes  the  absolute  title,  and  the 
trust  is  destroyed  by  the  consequent  merger  of  interests.^  To 
what  extent  these  general  powers  exist  in  an  active  trust  must 
depend  upon  the  peculiar  limitations  of  such  trust.  Wher- 
ever the  power  of  the  trustee  involves  the  exercise  of  a  pro- 
prietary authority  over  the  property,  equity  will  regard  him 
as  the  owner  so  far  as  it  is  necessary  for  the  performance  of 
the  trust.  And  to  that  extent  will  the  rights  and  powers  of 
the  cestui  que  trust  be  curtailed.-  In  New  York,  and  other 
States  in  which  the  New  York  statutes  on  the  subject  of  trusts 

1  1  Cruise  Dig.  448;  Lewin  on  Tr.  470;  Vaux  v.  Parke,  7  W.  &  S. 
19;  Harris  v.  McElroy,  45  Pa.  St.  216;  Barnett's  Appeal,  46  Pa.  St. 
399;  Battle  v.  Petvvay,  5  Ired.  576.  But  see  ante.  See.  348,  where  it 
is  claimed  that  in  the  case  of  a  passive  trust  to  a  married  woman,  the 
conveyance  of  the  equitable  estate  by  her  without  the  co-operation  of 
the  trustee,  will  pass  the  legal  title  as  well. 

2  Lewin  on  Tr.  470;  Barnett's  Appeal,  46  Pa.  St.  309;  McCosker  V. 
Brady,  1  Barb.  Ch.  329;  1  Spence  Eq.  Jur.  490,  497;  Culbertson's  Ap- 
peal, 76  Pa.  St.  145;  Williams'  Appeal,  83  Pa.  St.  377;  Smith  V.  Har- 
rington, 4  Allen  566;  Bowditch  r.  Andrew,  8  Allen  339;  Douglas  r. 
Cruger,  80  N.  Y.  15.  But  when  the  duties  which  have  made  the  trust 
active  have  been  performed  the  trust  again  becomes  passive,  and  if  it 
is  not  executed  by  the  Statute  of  Uses,  the  court  •  may  direct  a  con- 
veyance by  the  trustee  in  accordance  with  the  desires  of  the  cestui  que 
trust.  Welles  V.  Castles,  3  Gray  323;  Sherman  r.  Dodge,  28  Vt.  26; 
Waring  v.  Waring,  10  B.  Mon.  331;  Leonard's  Lessee  v.  Diamond,  31 
Md.  536;  Perry  on  Tr.,  Sec.  351.  "  A  trustee  has  power  to  mortgage  real 
estate,  where  he  is  given  the  power  to  '  take  charge  of,  manage,  and 
control  the  same  for  the  use  and  benefit  of '  a  person  designated."  Ely 
V.  Pike  (HI.  App.  1904),  115  App.  284.  "Where  a  trust  provided 
for  a  sale  and  re-investment  of  the  trust  estate,  on  agreement  between 
the  trustee  and  the  beneficiaries,  the  power  of  sale  was  a  special  per- 
sonal trust  which  did  not  pass  to  a  successor."  Luquire  v.  Lee  (Ga. 
1905),  49  S.  E.  Rep.  834.  "  Where  a  power  to  sell  and  convey  real  prop- 
erty is  conferred  upon  several  executors  or  trustees,  it  continues  to  a 
single  survivor,  and  may  be  exercised  by  him  alone  after  the  death  of 
his  co-trustee,  unless  the  contrary  intent  is  manifest  from  the  instru- 
ment creating  the  trust."  Haggart  V.  Ranney  ( Ark,  1904 ) ,  84  S.  W. 
Rep.  703.  Trustees,  in  making  sales  of  the  trust  estate,  must,  with  a 
view  of  obtaining  the  best  terms,  act  with  the  diligence  a  pnident 
owner  would  observe  in  the  sale  of  his  own  property.  Callaway  v. 
Hubner  (Md.  1904),  58  Atl.  Rep.  362. 

36  561 


§  384  TRUSTS.  [part    11. 

have  been  substantially  followed,  the  cestui  que  trust  is  now 
possessed  of  no  interest  which  he  may  assign,  where  the  trustee 
is  charged  with  the  collection  and  payment  of  the  rents  and 
profits  of  the  estate  to  the  cestui  que  trust. 

§  383.  Liability  of  third  persons  for  performance  of  the 
trust. —  It  has  been  held  in  England  and  in  some  of  the  Amer- 
ican States,  where  a  trustee  has  a  power  of  sale,  that  the  land 
in  the  hands  of  purchasers  is  subjected  to  a  constructive  trust, 
which  compels  the.  purchasers  to  see  to  the  proper  application 
of  the  purchase-money.  This  doctrine  has  been  warmly  con- 
tested and  denied  in  many  of  the  States,  and  presumably  the 
rule  is  generally  limited  to  such  cases  where  the  trust  is  special 
and  the  sale  is  for  a  special  purpose,  as  for  the  satisfaction  of 
a  particular  debt  or  claim.  "Where  the  trust  is  general  it  is 
impossible  for  the  purchaser  to  secure  a  proper  application  of 
the  purchase  money,  and  he  is  not  held  liable  for  any  mis- 
appropriation by  the  trustee.^ 

§  384.  Compensation  of  trustee. —  Formerly  the  trustee  was 
not  entitled  to  any  compensation  for  his  services,  it  being  con- 
sidered a  matter  of  honor.  The  policy  of  the  law  in  respect 
thereto  has  since  been  changed,  and  it  is  now  almost  the  uni- 
versal rule  that  trustees  receive  a  reasonable  percentage — 
usually  five  per  cent. — upon  all  disbursements  made  by  them. 
But  they  are  not  permitted  to  make  any  further  charge  against 
the  trust  estate,  even  though  the  services  rendered  may  be  un- 
usual, and  for  the  performance  of  which  they  have  hired 
others.*    If  the  estate  is  held  in  trust  for  the  life  of  the 

3  Story  Eq,  Jur.,  Sees.  1127,  1130;  1  Cruise  Dig.  450;  Potter  v.  Gard- 
ner, 12  Wheat.  498;  Duffy  v.  Calvert,  6  Gill  487;  Dunch  v.  Kent,  1 
Vem.  260;  Spalding  v.  Shalmer,  1  Vern.  301;  Andrews  v.  Sparhawk,  13 
Pick.  393;  Davis  V.  Christian,  15  Gratt.  11;  Stall  v.  Cincinnati,  16 
Ohio  St.  169.  -^ 

♦  Story  Eq.  Jur.,  Sec.  1266 ;  1  Cruise  Dig.  451 ;  Robinson  v.  Pett,  2 
Eq.  Ld.  Cas.  512,  538-600  (4  Am.  ed.);  Meacham  v.  Sternes,  9  Paige 
Ch.  398;  In  the  matter  of  Schell,  53  N.  Y.  9  Paige  263;  Hall  v.  Hall, 
562 


CH.   XIV.]  TRUSTS.  §  384 

cestui  que  trust,  and  provides  for  a  distribution  of  the  prop- 
erty at  her  death  the  cost  of  administration,  including  the 
compensation  of  the  trustee,  should  be  charged  up  to  the 
account  of  the  cestui  que  trust  for  life."* 

78  N.  Y.  535;  Warbass  v.  Armstrong,  2  Stockt.  Ch.  263;  WagstafiF  v. 
Lowerne,  23  Barb.  209.  But  see  Constant  v.  Matteson,  22  111.  546; 
Mayor  v.  Galluchat,  6  Rich.  Eq.  1. 

5  Cammann  v.  Cammann,  2  Demarest  (N.  Y.)  211.  "Under  Rev. 
Laws  (Mass.),  Ch.  150,  Sec.  14,  providing  that  a  trustee  shall  have 
such  compensation  for  his  services  as  the  court  may  allow,  compensa- 
tion is  to  be  just  and  reasonable  in  each  case  considered  by  it;  and  a 
trustee  is  not  entitled  to  any  certain  commission  for  changing  invest- 
ments, or  for  any  service  without  regard  to  other  circumstances." 
Parker  v.  Hill  (Mass.  1904),  69  N.  E.  Rep.  336.  "Assumpsit  cannot 
be  maintained  to  recover  compensation  for  trustees'  services,  such 
services  being  within  the  exclusive  jurisdiction  of  equity."  Hazard  V. 
•  Coyle  (R.  I.  1904),  58  Atl.  Rep.  987,  26  R.  I.  361.  "Where  leases 
executed  by  trustees  contain  a  provision  that  the  tenants  are  to  pay 
the  taxes,  the  trustees  are  entitled  to  a  commission  of  5  per  cent,  on 
the  gross  amount  the  tenants  are  required  to  pay."  In  re  McCallum'a 
Estate  (Pa.  1905),  60  Atl.  Rep.  903,  211  Pa.  205.  "Trustees  of  an 
estate  are  entitled  to  receive  commissions  for  the  collection  of  accruing 
interest  payable  to  the  estate."  Kennedy  v.  Dickey  (Md.  1904),  57  Atl. 
Eep.  621;  Dickey  v.  Kennedy,  Id. 

563 


CHAPTER  XV. 

EXECUTORY  DEVISES. 

Section  385.  Nature  and  origin. 

386.  Executory  devises,  vested  or  contingent. 

387.  Classes  of  executory  devises. 

388.  Distinguished  from  devises  in  prcesenti. 

389.  Reversion  of  estate  undisposed  of. 

390.  Distinguished   from   uses. 

391.  Distinguished  from  remainders. 

392.  Same  —  Limitation  after  a  fee. 

393.  Same  —  Limitation  after  an  estate-tail. 

394.  Same  —  Where  first  limitation   lapses. 

395.  Same  —  Limitations   after  an   executory  devise. 

396.  Indestructibility  of  executory  devises. 

397.  Limitation  upon  failure  of  issue. 

398.  Same  —  In  deeds. 

399.  Doctrine  of  perpetuity. 

400.  Rule  against  accumulation  of  profits. 

401.  Executory  devises  of  chattel  interests. 

§  385.  Nature  and  origin. —  An  executory  devise  is  a  future 
interest  or  estate  in  lands  limited  in  a  will  in  such  a  manner 
that  it  cannot  take  effect  as  a  remainder  or  as  a  future  use. 
The  law  of  executory  devises  has  been  evolved  by  a  course  of 
judicial  legislation  based  upon  the  Statute  of  Wills  enacted 
in  the  reign  of  Henry  VIII.^  The  cardinal  rule  for  the 
construction  of  wills  is  that  the  intention  of  the  testator  must 
be  carried  out,  if  at  all  possible.  In  conformity  with  this 
liberal  rub  of  construction,  the  common-law  rules  for  the 
limitation  of  future  interests  in  real  property  were  discarded, 
and  estates  or  interests  were  created  and  recognized  under  the 
name  of  executory  devises,  which  could  not  have  been  created 
at  common  law  by  deed.     Mr.  Fearne  defines  an  executory 

1  See  post,  Sec.  628. 
564 


CH.    XV.]  EXECUTORY    DEVISES.  §  385 

devise  to  be  "such  a  limitation  of  a  future  estate  or  interest 
in  lands  as  the  law  admits  in  the  case  of  a  will,  though  con- 
trary to  the  rules  of  limitation  in  conveyances  at  common 
law."^  A  remainder,  the  only  common-law  estate  which  could 
be  directly  created  by  conveyance,  has  been  defined  to  be  a 
future  estate  in  lands  which  is  preceded  and  supported  by  a 
particular  estate  in  possession,  which  takes  effect  in  posses- 
sion immediately  upon  the  determination  of  the  prior  or 
particular  estate,  and  which  is  created  at  the  same  time  and 
by  the  same  conveyance.^  It  follows,  therefore,  that  every 
devise  of  a  future  estate,  which  is  not  preceded  by  a  particular 
estate  created  by  the  same  instrument,  or  which,  if  there  is 
such  a  prior  limitation,  takes  effect  in  possession  before  or 
after  the  natural  expiration  of  the  prior  limitation,  is  an 
executory  devise.*  An  executory  devise  was  once  held  to  be 
an  interest  somewhat  different  from  an  estate,  although  not 
a  mere  naked  possibility.'*  But  whatever  need  there  may 
have  been  for  such  refined  distinctions  in  the  incipient  stages 
of  the  growth  of  those  interests,  none  exists  now,  and  for 
all  practical  purposes  executory  devises"  may  be  considered  as 
estates  in  land,  having  all  the  characteristics  and  appurte- 
nances of  a  common-law  estate,  differing  from  the  latter  only  in 
the  mode  of  creation  and  limitation.  They  are  alienable  and 
devisable  in  equity,  whether  the  devisees  are  vested  with  title 

2  Fearne  Cont.  Rem.  386;  2  Washburn  on  Real  Prop.  680;  2  Bla.  Com. 
172;  4  Kent's  Com.  264;  2  Jar.  on  Wills  (5  Am.  ed)  483;  McRee's 
Admrs.  v.  Means,  34  Ala.  349. 

8  See  ante.  Sec.  296. 

♦  Moore  v.  Parker,  1  Ld.  Raym.  37;  Doe  v.  Scarborough,  3  Ad.  &  El. 
2,  897;  Key  v.  Gamble,  2  Jones  123;  Gore  v.  Gore,  2  P.  Wms.  28; 
Harris  t*.  Barnes,  4  Burr.  2157;  Doe  f.  Morgan,  3  T.  R.  763;  Bullock  r. 
Stone,  2  Ves.  521. 

6  In  Jones  v.  Roe,  3  T.  R.  88,  Chief  Justice  Willes  says :  "  Execu- 
tory devises  are  not  naked  possibilities,  but  are  in  the  nature  of  con- 
tingent remainders."  See  Wright  v.  Wright,  1  Ves.  Sr.  411;  Ham- 
niington  v.  Rudgard,  10  Rep.  52  b.  See  Shaw  v.  English,  81  N.  Y.  S. 
109;  Piatt  t'.  Brannan,  81  Pac.  Rep.  755  (Colo.  1905);  In  re  Moran's 
Will  (Wis.  1903),  96  N.  W.  Rep.  367. 

565 


§   387  EXECUTORY   DEVISES.  [PART   II. 

or  it  is  contingent,  and  descendible  to  the  devisee 's  heirs,  if  he 
should  die  before  the  devise  vests  in  possession.' 

§  386.  Executory  devises,  vested  or  contingent. —  The  devise 
is  vested  where  the  person  who  is  to  take  is  in  esse,  and  is 
ascertained,  and  where  the  event  upon  which  he  is  to  take 
is  also  certain.  Such  a  devisee  takes  a  vested,  future  estate. 
Where  the  estate  is  to  vest  upon  an  uncertain  event  or  in 
a  person  not  definitely  ascertained,  the  executory  devise  is 
contingent,  and  partakes  of  the  nature  of  a  contingent  re- 
mainder.^ 

§  387.  Classes  of  executory  devises. —  Some  of  the  writers 
have  indulged  in  a  minute  subdivision  of  executory  devises, 
but  it  tends  apparently  to  obscure  and  mystify,  rather  than  to 
classify,  the  subject,  and  it  will  be  disregarded,  and  the  follow- 
ing simple  subdivision  employed  in  its  stead:  First,  where  the 
devise  takes  effect  in  the  future  without  a  sufficient  preceding 
limitation  to  support  it;  secondly,  where  the  devise  vests  in 
derogation  of  a  preceding  limitation,  and  thirdly,  where  the 
devise  is  a  future  limitation  in  a  chattel  interest.*     The  third 

«Purefoy  v.  Rogers,  2  Wm.  Saund.  388;  Wright  v.  Wright,  1  "Ves. 
Sr.  409;  Jones  v.  Roe,  3  T.  R.  88;  Proprietors  Brattle  Sq.  Church  V. 
Grant,  3  Gray  161 ;  Edwards  V.  Varick,  5  Denio  664 ;  Stover  v.  Eycle- 
shimer,  46  Barb.  87;  Den  v.  Manners,  1  Spenee  142;  Kean  v.  HoflFeckDr, 
2  Harr.  103;  Hall  v.  Robinson,  3  Jones  Eq.  348.  Mr.  Washburn  states 
that  executory  devises  are  alienable  only  when  the  devisee  is  an  ascer- 
tained person  (2  Washburn  on  Real  Prop.  681),  and  this  seems  to  be  the 
generally  accepted  doctrine.  But,  as  has  been  stated  in  respect  to  the 
alienability  of  contingent  remainders  (see  ante,  Sec.  307,  note),  since 
the  conveyance  of  a  future  contingent  interest  only  operates  in  equity 
by  way  of  estoppel,  if  a  grant  of  the  executory  devise  is  made  by  one 
who,  although  not  yet  ascertained  to  be  the  devisee,  becomes  the  devisee 
subsequently,  by  the  happening  of  the  contingency  by  which  the  devisee 
is  to  be  ascertained,  his  grant  would,  by  estoppel,  convey  to  his  grantee 
the  interest  which  he  thus  subsequently  acquires.  See  post.  Sees.  511, 
.514,  incl. 

T  Shaw  V.  English,  81  N.  Y.  S.  169. 

8  This  is  the  subdivision  employed  by  Mr.  Fearne,  Mr.  Cruise,  and 
566 


CH.    XV.]  EXECUTORY   DEVISES.  §  388 

class  will  be  considered  in  a  subsequent  paragraph.  The  first 
class  would  not  only  include  those  cases  where  the  future  limi- 
tation is  not  preceded  by  any  particular  limitation,  but  also 
those  where  the  preceding  limitation  is  not  sufficient  to  support 
the  future  estate  as  a  remainder.  Where  the  executory  devise 
is  vested,  the  preceding  limitation  may  be  insufficient,  by  ter- 
minating naturally  before  the  former  is  to  take  effect.  And 
where  the  devise  is  contingent,  the  preceding  limitation  would 
be  insufficient,  not  only  for  the  cause  just  mentioned,  but  also 
when  it  is  not  a  freehold  estate.  In  any  one  of  these  cases 
the  future  limitations,  whether  vested  or  contingent,  will  take 
effect  as  executory  devises.^  The  second  class  includes  all 
future  estate,  which  by  vesting,  defeat  or  curtail  a  prior 
limitation.^"  This  class  is  also  called  conditional  limitations, 
and  corresponds  to  shifting  uses,  while  the  first  class  is  similar 
to  springing  uses,  but  containing  other  cases,  which,  as  uses, 
would  be  void  contingent  uses,  viz. :  where  the  preceding  limita- 
tion is  not  sufficient  to  support  the  future  estate.^^ 

§  388.  Distingpiished  from  devises  in  prsesenti. —  Ordinary 
devises  vest  at  the  death  of  the  testator,  and  if  for  any  cause 

Mr.  Washburn.  Fearne  Cont.  Rem.  339;  0  Cruise  Dig.  366;  2  Washburn 
on  Real  Prop.  683.  See  Scatterwood  v.  Edge,  1  Salk.  229;  Nightingale 
r.  Burrell,  15  Pick.  104. 

0  2  Washburn  on  Real  Prop.  684;  Fearne  Cont.  Rem.  400;  2  Bla.  Com. 
173;  Leslie  i;.  Marshall,  31  Barb.  566;  Chambers  v.  Wilson.  2  Watts 
495;  Reding  v.  Stone,  8  Vin.  Abr.  215,  pi.  5;  Key  v.  Gamble,  2  Jones 
123;  Doe  V.  Scarborough,  3  Ad.  &  El.  2,  897;  Whiting  v.  Whiting,  42 
Minn.  548;  Tilden  v.  Green,  54  Hun  231;  Clough  v.  Clough,  64  N.  H. 
509. 

10  Loe  V.  Fonnereau,  1  Dougl.  487;  Marks  v.  Marks,  10  Mod.  423; 
Stanley  v.  Stanley,  16  Ves.  491;  Doe  v.  Beauclerk,  11  East  657;  Pro- 
prietors Brattle  Sq.  Church  v.  Grant,  3  Gray  146;  Brightman  v.  Bright- 
man,  100  Mass.  238;  Jackson  v.  Blanshau,  3  Johns.  299;  Hatfield  v. 
Sneden,  42  Barb.  615;  «.  o.  54  N.  Y.  285;  Hilliary  v.  Hilliary's  Lessee, 
26  Md.  274;  Gaven  v.  Allen,  100  Mo.  293;  Suydam  v.  Thayer,  94  Mo. 
49. 

11  See  ante,  Sees.  364,  356,  359;  May  v.  Lewis  (N.  C.  1903),  43  8. 
E.  Rep.  660. 

567 


§   388  EXECUTORY   DEVISES.  [PART    II. 

the  devisee  is  unable  to  take  at  that  time,  the  devise  lapses. 
Its  vesting  will  not  be  suspended,  nor  will  it  be  kept  alive  as 
an  executory  devise,  until  the  devisee  is  able  to  take.  Whcn\ 
therefore,  the  devise  is,  in  express  words  or  by  necessary  impli- 
cation, to  vest  immediately  upon  the  death  of  the  testator,  it 
cannot  under  any  circumstances  be  construed  to  be  a  future  or 
executory  devise,  in  order  to  carry  out  the  supposed  intention 
of  the  testator  that  the  devise  shall  at  all  events  take  effect.  A 
devise  to  children  without  words  of  qualification  would  be  a 
devise  in  prcesenti,  and  so,  also,  it  has  been  held  that,  a  devise 
to  the  heirs  of  A.,  standing  alone,  would  be  considered  a  devise 
in  prcEsenti,  and  if  A,  should  be  living  at  the  testator's  death, 
the  devise  would  lapse  for  the  want  of  some  ascertained  person 
in  being.  In  order  to  make  such  a  devise  executory,  it  must 
expressly  or  by  implication  refer  to  the  death  of  A.,  as  the 
time  when  the  devise  is  to  take  effect.'-  But  this  decision 
would  probably  be  different  now;  for  at  present  the  courts  will 
avail  themselves  of  very  slight  circumstances  in  order  to  reach 
the  conclusion  that  a  devise,  which  otherwise  would  fail,  was 
intended  to  be  an  executory  devise.'^     But  where  there  are 

12  2  Washburn  on  Peal  Prop.  68.5 ;  6  Cruise  Dig.  422 ;  Doe  V.  Carleton, 
1  Wils.  225;  Goo'dright  v.  Cornish,  1  Salk.  220;  Porter's  Case,  1  Rep.  24; 
Ingliss  V.  Trustees,  etc.,  3  Pet.  99;  Leslie  f.  Marshall,  31  Barb.  565. 
See  post,  Sees.  638,  641. 

isGoodright  V.  Cornish,  1  Salk.  220;  Harris  v.  Barnes,  4  Burr.  2157; 
Yeaton  v.  Roberts,  28  N.  H.  405;  Hoklerby  v.  Walker,  3  Jones  Eq.  46; 
Thompson  v.  Hoop,  6  Ohio  St.  480;  Darcus  V.  Crump,  6  B.  Mon.  365. 
Thus,  if  there  is  a  devise  to  the  children  of  A.  to  he  begotten,  although 
the  devise  would,  without  the  words  in  italics,  have  been  construed  as  a 
devise  in  prasenti,  and  would  have  been  confined  to  the  children  born 
at  the  testator's  death,  the  presence  of  the  words  to  be  begotten,  or 
other  words  of  similar  import,  would  be  sufficient  evidence  of  the  inten- 
tion of  the  testator  to  include  all  the  children  of  A.,  whether  they  are 
born  before  or  after  his  death,  and  the  devise  would,  therefore  be  exec- 
utory. Mogg  V.  Mogg,  1  Meriv.  654;  Newill  v.  Newill.  L.  R.  12  Eq. 
432;  Eldowes  V.  Eldowes,  30  Beav.  603;  Annable  v.  Patch,  3  Pick.  360; 
Hoge  r.  Hoge,  1  Serg.  &  R.  144;  Rupp  v.  Eberly,  79  Pa.  St.  141;  Napier 
V.  Howard,  3  Ga.  202;  Dunn  v.  Bk.  of  Mobile,  2  Ala.  152.  And  where 
there  are  no  persons  in  esse,  who  would  come  under  the  class  of  devi- 
568 


Cil.    XV.]  EXECUTORY    DEVISES.  §   389 

persons  in  being  who  have  the  capacity  to  take  the  devise,  it 
will  be  considered  that  it  will  be  a  devise  in  prcesenti,  and  not 
an  executory  devise,  if  this  construction  is  not  rendered  im- 
possible by  the  other  provisions  of  the  will."  And  this  rule 
has  been  followed  even  in  the  case  of  an  alternate  devise  which 
is  to  take  effect  upon  -the  death  of  the  first  devisee  without 
children  or  issue.  The  presumption  would  be  that  the  contin- 
gency referred  to  the  death  of  the  first  devisee  during  the 
life  of  the  testator.^' 

§  389.  Reversion  of  estate  undisposed  of. —  Where  there  is 
no  limitation  preceding  the  executory  devise,  the  estate 
descends  to  the  testator's  heirs  and  remains  in  them  until  the 
event  happens,  when  the  devise  is  to  take  elfeet.  And  if  the 
executory  devise  is  an  estate  less  than  a  fee  simple,  the  land 
will  revert  to  the  heirs  upon  its  termination.^^     If  the  preced- 

sees  named  at  the  time  of  the  testator's  dealh,  nor  had  there  been  any 
before  his  death,  it  seems  to  be  the  presumption  of  law  that  the  testa- 
tor intended  to  create  an  executory  devise.  Shepherd  V.  Ingram,  Amb. 
448;  Weld  V.  Bradbury,  2  Vern.  705;  Doe  v.  Carleton,  1  Wils.  225; 
Haughton  v.  Harrison,  2  Atk.  329;  Ross  v.  Adams,  28  N.  J.  L.  160. 
And  where  there  is  a  devise  to  children,  or  some  other  definite  class  of 
persons,  and  some  of  them  are  born  and  others  are  unborn  at  the  death 
of  the  testator,  or  where  none  are  born  then,  but  some  come  into  being 
afterwards,  leaving  others  which  are  subsequently  born,  those  who  are 
in  being  take  vested  estates,  and  are  entitled  to  the  whole  income  until 
the  others  are  born,  when  the  devise  opens  and  lets  them  in.  These 
executory  devises  have  a  close  resemblance  to  remainders  to  &  class. 
Shepherd  v.  Ingram,  Amp.  448;  Mainwaring  v.  Beevor,  8  Hare  44; 
Shawe  v.  Cunliffe,  4  B.  C.  144;  Mills  v.  Norris,  5  Ves.  335;  Stone  v. 
Harrison,  2  Call.  715.     See  ante,  Sec.  360. 

"Webster  v.  Welton,  53  Conn.  183;  Kouvalinka  v,  Geibel,  40  N.  J. 
Eq.  443;  Toner  v.  Collins,  67  Iowa  369;  «.  o.  56  Am.  Rep.  346;  Scott 
V.  West,  63  Wis.  529. 

"Carroll  v.  Conley  (N.  Y.),  9  N.  Y.  S.  865;  Jones  v.  Webb,  5  Del. 
Ch.  132;  Burdge  ♦;.  Walling  (N.  J.),  16  Atl.  Rep.  51. 

16  2  Washburn  on  Real  Prop.  686,  687;  2  Prest.  Abst.  120;  4  Kent's 
Com.  268.  See  Boggs  r.  Boggs  (N.  J.  Ch.  1905),  60  Atl.  Rep.  1114; 
May  V.  Lewis  (N.  C.  1903),  43  S.  E.  Rep.  550;  Reynolds  v.  Reynolds 
(S.  C.  1903),  43  S.  E.  Rep.  878. 

569 


§  389  EXECUTOEY  DEVISES.  [PART  II. 

ing  limitation  is  not  sufficient  to  support  the  future  limitation 
as  a  contingent  remainder,  and  the  former  expires  before  the 
latter  vests,  there  will  be  an  intermediate  reversion  of  the 
estate  to  the  heirs.  The  same  general  principles  would  apply 
to  executory  devises  of  the  second  class.  The  only  difficulty 
experienced  in  applying  them  is  when  the  vesting  and  enjoy- 
ment of  the  executory  devise  do  not  absolutely  require  the 
destruction  of  the  entire  preceding  estate,  as  where  the  former 
is  a  particular  estate  and  the  latter  is  a  fee.  Thus,  where  the 
land  is  devised  to  A.  and  his  heirs,  and,  upon  the  happening  of 
some  contingency  to  B.  for  life,  it  is  a  mooted  question — both 
sides  being  sustained  by  eminent  authority — whether  the  estate 
in  A.  would  be  destroyed  altogether  by  the  vesting  of  B. 's 
estate  for  life,  or  whether  A.  is  only  divested  of  his  estate  dur- 
ing the  continuance  of  B.  's  estate,  and  retains  the  reversion  in 
him  and  his  heirs.  Mr.  Fearne  supports  the  former  view, 
while  the  latter  is  maintained  by  Mr.  Preston,  Mr.  Powell,  and 
Mr.  Washburn.^^  The  intention  of  the  testator  certainly  must 
govern  in  such  a  case.  If  a  fee  simple  be  devised  to  one,  there 
is  a  manifest  intention  on  the  part  of  the  testator  to  deprive 
his  own  heirs  of  any  interest  in  the  land.  If  he  attaches 
thereto  an  executory  devise  to  B.  for  life,  in  the  absence  of 
any  express  evidence  to  the  contrary,  it  only  so  far  negatives 
the  presumed  intention  that  A.  should  have  the  fee  as  is 
required  to  give  to  B.  an  estate  for  his  life.  Upon  the  vesting 
of  B.  's  estate  the  present  estate  in  A.  would  be  only  suspended 
until  B's  death,  when  the  estate  will  revert  to  him  and  his 
heirs.^* 

IT  2  Washburn  on  Real  Prop.  686;  Fearne  Cont.  Rem.  251;  2  Prest. 
Abst.  140;  2  Pow.  Dev.  241.  Mr.  Washburn  states  that  a  case,  involv- 
ing this  question,  is  said  to  have  arisen  in  the  Delaware  courts,  p.  687. 
See  to  the  same  effect,  Thomas  v.  Thomas  (N.  J.),  18  Atl.  Rep.  355. 

18 Mr.  Powell  says:  "To  this  important  rule,  namely,  that  an  estate 
subject  to  an  executory  devise,  to  arise  on  a  given  event,  is,  on  the 
happening  of  that  event,  defeated  only  to  the  extent  of  the  executory 
interest,  the  only  possible  objection  that  can  be  advanced  is  the  total 
absence  of  direct  authority  for  it,  for  the  books  do  not  furnish  a 
570 


CH.   XV.]  EXECUTORY   DEVISES.  §  391 

§  390.  Distinguished  from  uses. —  Uses  may  be  created  by- 
devise  as  well  as  by  deed,  and  a  future  limitation  in  a  will  will 
not  be  construed  as  an  executory  devise  if  it  is  limited  as  a 
use,  especially  if  there  is  a  seisin  raised  by  the  will  to  sup- 
port the  use.  Thus,  where  the  devise  is  to  A.  to  the  use  of 
B.,  the  Statute  of  Uses  would  be  required  to  operate  upon 
the  devise  and  transfer  the  legal  estate  from  A,  to  B."  But 
the  mere  expression  **to  the  use  of"  appearing  in  a  devise 
will  not  necessarily  convert  the  devise  into  a  use,  and  it  is 
held  that  a  simple  devise  to  the  use  of  A.  will  take  effect 
as  an  executory  devise.^" 

§  391.  Distinguished  from  remainders. —  Whenever  a  future 
limitation  in  a  devise  can  take  effect  as  a  remainder,  it  will 
be  construed  as  such.  It  cannot  operate  as  an  executory 
devise.  This  rule  of  construction  arises  from  the  desire  of 
the  courts  to  confine  themselves  to  common-law  estates  and 
the  rules  governing  them ;  and  the  doctrine  of  executory 
devises  is  recognized  and  applied  only  when  the  intention  of 
the  testator  cannot  otherwise  be  effectuated.^'^     "What  are  the 

'  single  example  of  its  application."  2  Pow.  Dev.  241.  "  A  limitation  in  a 
will  providing  that,  if  the  devisee  should  die  without  heirs,  the  land 
should  '  revert  back  to  his  next  of  kin,'  is  a  valid  executory  devise." 
May  V.  Lewis  (N.  C.  1903),  43  S.  E.  Rep.  550. 

IB  Co.  Lit.  271  b,  note  231,  Sec.  3;  Sandf.  on  Uses  243;  2  Washburn  on 
Real  Prop.  433,  434.  Whether  the  use  will  be  executed  by  the  statute, 
or  remain  a  trust,  leaving  the  legal  title  in  the  devisee  as  trustee,  is 
governed  by  the  same  rules  which  apply  to  uses  created  by  act  inter 
vivos.  See  Doe  V.  Field,  2  B.  &  Ad.  564;  Doe  V.  Homfray,  6  A.  &  E. 
206;  Norton  v.  Leonard,  12  Pick.  152;  Ayer  v.  Ayer,  16  Pick.  327; 
Upham  V.  Varney,  15  N.  H.  467 ;  Wood  v.  Wood,  5  Paige  Ch.  596. 

20  1  Sugden  on  Pow.  2,  3.  See  Shaw  v.  English  (N.  Y.  1903),  81  N. 
Y,  S.  169. 

2iPurefoy  v.  Rogers,  2  Wm.  Saund.  388;  Doe  v.  Morgan,  3  T.  R. 
763;  Doe  v.  Fonnereau,  Dougl.  487;  Doe  v.  Considine,  6  Wall.  475; 
Nightingale  v.  Burrcll,  15  Pick.  104;  Terry  v.  Briggs,  12  Mete.  17; 
Hall  V.  Priest,  6  Gray  18;  Manderson  v.  Lukens,  23  Pa.  St.  31.  In 
Purefoy  v.  Rogers,  the  rule  was  stated  thus :  "  Where  a  contingency  is 
limited  to  depend  upon  an  estate  of  freehold,  which  is  capable  of  sup- 

571 


§  392  EXECUTORY   DEVISES.  [PART   H. 

requisites  and  characteristics  of  remainders  have  been  already 
discussed,  and  it  will  be  necessary  to  mention  here  only  certain 
important  cases  in  which  doubt  may  arise.  In  respect  to  the 
first  class  of  executory  devises  where  there  is  no  sufficient 
particular  estate,  or  none  at  all,  no  question  can  arise  as  to 
the  proper  construction.  The  difficulty  is  presented  in  the 
second  class,  in  determining  whether  the  second  limitation 
takes  effect  in  derogation  of  the  prior  estate.  In  New  York, 
Michigan,  Wisconsin,  Minnesota,  California  and  Dakota,  it 
is  provided  by  statute  that  no  contingent  remainder  is  de- 
feated by  the  termination  of  the  preceding  estate  before  the 
happening  of  the  contingency;  but  that  it  will  take  effect 
thereafter,  whenever  the  contingency  happens.  This  is  a  prac- 
tical abrogation  of  all  distinction  between  contingent  remain- 
ders and  executory  devises.  So,  also,  in  Alabama,  all  con- 
tingent remainders  are  abolished,  and  all  estates  in  expectancy 
declared  to  have  the  effect  of  executory  devises. 

§  392.  Same  —  Limitation  after  a  fee. —  It  has  been  seen 
that  a  remainder  cannot  be  limited  after  a  fee.^^  And  where 
the  preceding  estate  is  in  fact  a  fee,  whether  it  is  vested  or 
contingent,  a  subsequent  limitation,  which  is  made  to  defeat 
the  preceding  estate  after  it  has  vested,  is  an  executory  devise 
and  not  a  remainder.  But  the  fact  that  there  is  a  preceding 
limitation  of  the  fee  will  not  necessarily  make  the  subsequent 
limitation  an  executory  devise.  If  the  subsequent  limitation 
defeats  and  takes  the  place  of  the  preceding  limitation  upon 
the  breach  of  a  condition,  subsequent  to  the  vesting  of  the 
first  estate,  the  second  limitation  is  an  executory  devise. '^^    But 

porting  a  remainder,  it  shall  never  be  construed  to  be  an  executory 
devise,  but  a  contingent  remainder  only."  Goodright  v.  Cornish,  4 
Mod.  258;  Reeve  V.  Long,  Carth.  310;  Doe  v.  Scarborough,  3  Ad.  &  El. 
2,  897;  Gore  v.  Gore,  2  P.  Wms.  28;  Harris  v.  Barnes,  4  Burr.  2157. 

22  See  ante,  Sees.  296,  298,  313.  See  Simmons  v.  Cabanne  (Mo.  1903), 
76  S.  W.  Rep.  618. 

28  Gulliver  v.  Wicketts,  1  Wils.  105 ;  Fonnereau  v.  Fonnereau.  3  Atk. 
315;  Nightingale  v.  Burrell,  15  Pick.  104;  Doe  v.  Beauclork,  11  East 
572 


CH.    XV.]  EXECUTORY   DEVISES.  §  393 

if  the  subsequent  limitation  is  merely  an  alternate  devise 
which  depends  upon  a  condition  precedent  to  the  first,  and 
which  must  vest,  if  at  all,  before  the  first,  then  it  is  a  contin- 
gent remainder  and  not  an  executory  devise.  It  is  an  alter- 
nate remainder,  or  a  remainder  with  a  double  aspect.'^* 

§  393.  Same  —  Limitation  after  an  estate  tail. —  A  remain- 
der can  be  limited  after  an  estate  tail,  which  is  to  take  effect 
upon  the  failure  of  issue.^"*  But  it  is  often  difficult  in  a 
devise  to  one  and  his  heirs,  and  a  limitation  over  in  case  of  a 
failure  of  issue,  to  discover  whether  it  was  the  intention  of 
the  testator  to  give  to  the  first  taker  an  estate  tail,  or  only 
that  his  estate  of  inheritance  should  cease  when  there  should 
be  a  failure  of  issue,  the  failure  of  issue  being  the  contingency, 
when  the  limitation  over  should  take  effect.  If  it  was  his 
intention  to  create  an  estate  tail,  the  limitation  over  is  a 
remainder;'"   but  if  such  an  intention   cannot  be  gathered 

657;  Doe  V.  Heneage,  4  T.  R.  13;  Nicholl  v.  Nioholl,  2  W.  Bl.  1159; 
Barney  v.  Arnold,  15  R.  I.  78;  Shadden  v.  Hembree  (Ore.),  18  Pac. 
Rep.  572.  "  Where  testator  devises  his  lands  to  his  daughter  in  fee 
simple,  a  subsequent  clause  in  the  will  by  which  he  attempts  to  devise 
over  to  others  so  much  of  the  land  as  his  daughter  had  not  alienated, 
if  she  dies  without  issue,  is  void."  Spencer  v.  Scovil  (Neb.  1903),  96 
N.  W.  Rep.  1016.  See  Cox  v.  Anderson's  Admr.  (Ky.  1902),  70  S.  W. 
Rep.  839. 

24  Luddington  v.  Kime,  1  Ld.  Raym.  203 ;  Goodwright  V.  Dunham,  1 
Dougl.  265;  Taylor  v.  Taylor,  63  Pa.  St.  481,  3  Am.  Rep.  565;  Wilson 
V.  White,  109  N.  Y.  59.    See  ante,  Sec.  310. 

25  2  Washburn  on  Real  Prop.  690;  Wiscot's  Case  2  Rep.  61;  Roc  r. 
Baldwere,  5  T.  R.  110;  Page  v.  Hayward,  2  Salk.  570;  Wilkes  v.  Lion. 
2  Cow.  392;  Hall  v.  Priest,  6  Gray  18;  Poole  v.  Morris,  26  Ga.  374. 
See  ante,  Sec.  298. 

28  Parker  V.  Parker,  5  Mete.  134;  Nightingale  V.  Burrill,  15  Pick. 
104;  Allen  v.  Trustees,  102  Mass.  263;  Hannau  v.  Osborn,  4  Paige  Ch. 
336;  Morehouse  V.  Cotheal,  21  N.  J.  L.  480;  Taylor  v.  Taylor,  63  Pa. 
St.  481,  3  Am.  Rep.  .565;  Hill  V.  Hill,  74  Pa.  St.  173,  15  Am.  Rep.  545; 
Richardson  v.  Richardson,  80  Me.  585;  East  V.  Garrett,  84  Va.  523; 
Summers  v.  Smith,  127  HI.  645;  Rcinsehl  V.  Shirk,  119  Pa.  St.  108; 
Titsell  V.  Cochran  (Pa.),  10  Atl.  Rep.  9;  Knoderer  r.  Merriman  (Pa.), 
7  Atl.  Rep.  152.     And  at  common  law  the  limitation  over  upon  failure 

573 


§  394  EXECUTORY   DEVISES.  [PART   II. 

from  the  language  used,  the  limitation  over  will  be  held  to  be 
an  executory  devise.*^ 

§  394.  Same  —  Where  first  limitation  lapses. —  The  will  goes 
into  effect  at  the  testator's  death,  and  is  construed  according 
to  the  circumstances  surrounding  the  testator  at  that  time. 
No  change  of  circumstances  can  affect  the  will  which  occurs 

of  issue  is  always  presumed  to  be  a  remainder  after  an  estate  tail, 
^  unless  there  is  something  in  the  context  to  the  contrary,  in  conformity 
with  the  general  rule  requiring  a  future  limitation  to  be  construed  as  a 
remainder,  if  it  can  take  effect  as  such.  Hawley  v.  Northampton,  8 
Mass.  3;  Parker  V.  Parker,  5  Mete.  134;  Vedder  v.  Evartson,  3  Paige 
281;  Wolfe  V.  Van  Nostrand,  2  N.  Y.  436;  Stehman  v.  Stehman,  1 
Watts  466;  Wall  v.  Maguire,  21  Pa.  St.  248;  Manderson  v.  Lukens, 
23  Pa.  St.  31.  But  it  must  be  remembered  that  estates  tail  have  now 
been  abolished  in  very  many  of  the  States;  in  some  they  are  converted 
into  fees  simple,  while  in  others  the  first  taker  has  an  estate  for  life, 
and  the  rest  of  the  estate  constitutes  a  contingent  remainder  in  fee  in 
the  first  taker's  issue  and  their  descendants.  See  ante.  Sec.  296.  In 
both  classes  of  States  the  doctrine  that  a  remainder  can  be  limited  after 
a  fee  tail  has  become  obsolete  and  impossible  through  the  inability  to 
create  an  estate  tail.  If  there  is,  in  one  of  these  States,  a  devise  to  A. 
abd  the  heirs  of  his  body,  with  a  limitation  over  upon  failure  of  issue, 
the  limitation  over  can  only  take  effect  as  an  executory  devise,  and 
will  be  a  good  or  a  void  limitation,  according  as  the  testator  is  con- 
strued to  intend  a  definite  or  indefinite  failure  of  issue.  See  post,  Sec. 
397. 

27  Jackson  V.  Chew,  12  Wheat.  153;  Jackson  v.  Elmendorf,  3  Wend. 
222;  Jackson  V.  Thompson,  6  Cow.  178;  Jackson  v.  Staats,  11  Johns. 
337;  Lyon  V.  Burtiss,  20  Johns.  483;  Nicholson  V.  Bettle,  57  Pa.  St. 
384;  Morris  v.  Potter,  10  R.  I.  58;  Wilson  v.  Wilson  (N.  J.),  19  Atl. 
Rep.  132;  Gordon  v.  Gordon  (S.  C),  11  S.  E.  Rep.  334;  Pate  v.  French, 
122  Ind.  10;  Fields  v.  Whitfield  (N.  C),  7  S.  E.  780;  In  re  Swinburne 
(R.  I.),  14  Atl.  Rep.  850;  Martin  v.  Renaker  (Ky.),  9  S.  W.  Rep.  419; 
Buchanan  v.  Buchanan,  99  N.  C.  308;  Galloway  v.  Carter,  100  N.  C. 
Ill;  Henley  v.  Robb,  Pickle  (Tenn.)  474;  Williams  v.  Lewis,  100  N.  C. 
142;  Matthews  V.  Hudson  (Ga.),  7  S.  E.  Rep.  286;  Henderson  V. 
Kinard  (S.  C),  6  S.  E.  Rep.  853;  Stokes  v.  Van  Wick,  83  Va.  724; 
O'Brien  v.  O'Leary,  64  N.  C.  332;  Johnson's  Exr.  v.  Citizens'  Bank,  83 
Va.  65;  Goddard  v.  Whitney,  140  Mass.  92;  Trexler  v.  Holler,  107  N. 
C.  617;  Prosser  V.  Hardesty,  101  Mo.  593.  Generally  the  construction 
depends  upon  the  express  words  of  the  testator  used  in  limiting  the 
estate.  But  if  they  leave  the  character  of  the  limitation  doubtful,  then 
resort  must  be  had  to  the  context;  and  if  it  appears  from  the  context 
that  it  was  the  intention  of  the  testator  to  create  an  executory  devise, 

574 


CH.   XV.]  EXECUTORY   DEVISES.  §  394 

afterwards.  If,  therefore,  there  be  a  sufficient  particular 
estate  to  support  the  future  contingent  limitation  at  the 
death  of  the  testator,  it  will  take  effect  as  a  contingent  re- 
mainder, and  any  subsequent  lapse  of  the  particular  estate, 
before  the  future  estate  vested,  would  defeat  such  contingent 
estate.  Once  a  remainder,  always  a  remainder.  But  if  the 
particular  estate  is  void  or  lapses  because  of  a  change  of  cir- 
cumstances, occurring  between  the  execution  of  the  will  and 
the  testator's  death,  the  devise  will  be  construed  as  if  there 
had  been  no  preceding  limitation,  and  the  contingent  limita- 
tion will  be  supported  as  an  executory  devise.^^  But  the  testa- 
tor may  expressly  provide  that  the  remainder  is  to  take  effect 
only  when  the  particular  estate  vests,  as  where  it  is  provided 
that  the  estate  shall  go  to  a  certain  person  at  the  death  of.  the 
devisee  for  life.     In  the  event  that  such  devisee  did  not  sur- 

it  will  be  held  to  be  one,  notwithstanding  the  ordinary  presumption 
that  such  a  limitation  is  a  remainder.  The  presumption  prevails  only 
when  it  is  absolutely  impossible  to  ascertain  the  intention  of  the  tes- 
tator. Person  i'.  Dodge,  23  Pick.  287;  Armstrong  v.  Kent,  21  N.  J.  L. 
509;  Kennedy  v.  Kennedy,  29  N.  J.  L.  185;  Berg  v.  Anderson,  72  Pa.  St. 
87;  Hill  V.  Hill,  74  Pa.  St.  173,  15  Am.  Rep.  545;  Summers  v.  Smith, 
127  111.  645;  Devecmon  V.  Shaw,  70  Md.  219;  Chaplin  v.  Doty  (Vt.),  15 
Atl.  Rep.  362.  So,  also,  where  a  statute  makes  all  limitations  over  upon 
failure  of  issue,  refer  to  a  definite  failure  of  issue,  the  limitation  will 
be  construed  ordinarily  to  be  an  executory  devise.  Pinkham  v.  Blair, 
57  N.  H.  226;  Macombe  v.  Miller,  26  Wend.  229;  Wilson  V.  Wilson,  32 
Barb.  328;  McKee  v.  Means,  34  Ala.  349;  Black  v.  Williams,  51  Hun 
280;  In  re  N.  Y.,  L.  &  W.  Ry.,  105  N.  Y.  91.  See  post,  Sec.  397,  for  a 
discussion  of  the  question,  when  a  "  failure  of  issue "  will  be  con- 
strued to  mean  a  definite  failure  of  issue,  and  what  would  be  the  effect 
upon  the  executory  devise  of  the  construction  that  it  means  an  indefinite 
failure  of  issue. 

28  2  Washburn  on  Real  Prop.  691;  6  Cruise  Dig.  422;  Fearne  Cont. 
Rem.  625,  626;  Bullock  V.  Bennett,  31  Eng.  L.  &  Eq.  463;  Crozier  V. 
Bray,  39  Hun  121;  Sauter  v.  Muller,  4  Dem.  389.  So,  also,  if  the  prior 
devise  should  fail  by  a  refusal  of  the  devisee  to  accept  it,  the  future  limi- 
tation, which  would  otherwise  be  a  contingent  remainder,  will  take  effect 
as  an  executory  devise.  Yeaton  v.  Roberts,  28  N.  H.  459;  Thompson  v. 
Hoop,  6  Ohio  St.  480;  Reynolds  V.  Reynolds  (S.  C.  1903),  43  S.  E.  Rep. 
878;  May  v.  Lewis  (N.  C,  1903),  43  S.  E.  Rep.  550. 

575 


§  396  EXECUTORY   DEVISES.  [PART   II. 

vive  the  testator,  the  remainder  could  not,  on  the  lapse  of  the 
first  devise,  take  effect  as  an  executory  devise.^^ 

§  395.  Stune  —  Limitations  after  an  executory  devise. —  If 
there  are  successive  limitations  which  take  effect  after  an 
executory  devise,  they  are  all  executory  devises  until  the  first 
limitation  takes  effect  in  possession.  But  upon  the  happening 
of  that  event  they  will  become  and  be  construed  as  remainders, 
if  they  are  capable  of  sustaining  that  relation  to  the  preced- 
ing limitation.     Such  would  be  the  case,  if  the  devise  was  to 

A.  for  life,  six  months  after  the  testator's  death,  remainder  to 

B.  in  fee.  t)uring  the  six  months,  both  limitations  would  have 
the  character  of  executory  devises  in  respect  to  the  rights  of 
the  testator's  heirs,  but  B. 's  estate  would  be  a  remainder  in 
respect  to  A.^"  And  in  limitations  of  this  character  the  first 
executory  devise  may  be  contingent,  while  the  second  is  certain 
and  vested.  Until  the  first  is  vested  the  second  is  vested, 
subject  to  be  opened  and  to  let  in  the  first,  when  it  vests.^^ 
And  if  the  first  limitation  lapses,  the  second  takes  effect  in 
possession  as  an  executory  devise,  as  if  there  had  been  no  pre- 
ceding limitations.^^ 

§  396.  Indestructibility  of  executory  devises. —  Since  execu- 
tory devises  are  not  dependent  for  support  upon  any  preced- 
ing estate,  they  cannot  be  altered  or  defeated  by  any  act  of 
the  first  taker,  unless  such  act  is  made  by  the  terms  of  the 
will  the  occasion  of  defeating  the  devise.  Feoffment  by  the 
first  taker  will  not  otherwise  destroy  the  executory  devise,  as 
it  would  a  contingent  remainder.^^     In  England  an  exception 

29  Gibson  v.  Seymour,  102  Ind.  485;  s.  c.  52  Am.  Rep.  688. 

30  2'Washburn  oh  11p:i1  Prop.  691,  092;  2  Prest.  Abst.  173;  Purefoy  v. 
Sogers,  2  Wm.  Saund.  388,  note;  Fearne  Cont.  Rem.  503;  Pay's  Case, 
Cro.  Eliz.  878. 

31  2  Wasbburn  on  Real  Prop.  693 ;  Fearne  Cont.  Rem.  506. 

32  See  ante.  Sec.  394.  See,  In  re  Lewis,  73  Law,  J.,  Ch.  748  (1904), 
2  Ch.  656,  91  Law.,  J.,  242. 

83  2  Washburn  698,  699;  2  Bla.  Com.   173;   Fearne  Cont.  Rem.  418; 
576 


CH.    Xy.]  EXECUTORY   DEVISES.  §  397 

seems  to  have  been  made  in  the  case  of  an  executory  devise 
taking  effect  in  derogation  of  an  estate  tail,  where  a  recovery 
suffered  by  the  tenant  in  tail  would  also  defeat  the  devise.^* 
As  recoveries  do  not  obtain  in  this  country  this  exception  is 
of  no  importance  to  an  American  lawyer. 

§  397.  Limitation  upon  failure  of  issue. —  In  determining 
whether  a  future  limitation  vesting  upon  a  failure  of  issue  is 
a  remainder  or  an  executory  devise,  two  points  are  to  be  con- 
sidered. The  first  is  whether  the  failure  relates  to  the  issue 
of  the  first  taker,  or  to  that  of  a  stranger.  In  the  first  instance 
the  second  limitation,  in  the  absence  of  an  express  contrary 
intention,  will  so  limit  the  prior  devise  as  to  convert  it  into  an 
estate  tail,  thereby  making  the  second  limitation  a  remainder 
after  an  estate  tail.  If  it  be  the  issue  of  a  stranger  it  will 
not  reduce  the  prior  devise  to  an  estate  tail,  and  hence  the 
second  limitation  can  only  take  effect  as  an  executory  devise.^' 
The  second  point  is  whether  the  failure  means  an  indefinite 
failure  of  issue,  i.  e.,  that  the  second  limitation  is  to  take  effect 
at  any  future  time,  when  there  shall  be  a  failure  of  heirs  in 
the  direct  line  of  descent  from  the  first  taker,  or  whether  it 
refers  to  a  failure  of  issue  within  any  particular  period,  as  at 
the  death  of  the  first  taker.  The  common-law  rule  was,  and  it 
still  obtains  in  the  absence  of  statutory  changes,  that  where 
failure  of  issue  was  made  the  contingency  upon  which  the 
second  limitation  was  to  vest,  without  any  express  reference 
to  the  kind  of  issue  meant,  or  where  the  kind  of  issue  could 
not  be  determined  by  a  reference  to  the  context,  it  was  an 

Props.  Brattle  Sq.  Church  v.  Grant,  3  Gray  146;  McRee's  Admrs.  v. 
Means,  .34  Ala.  349. 

34  2  Washburn  on  Real  Prop.  699;  2  Prest.  Abst.  120;  Fearne  Cont. 
Rem.  423,  424.     See  ante.  Sees.  42,  298. 

88  Grumble  v.  Jones,  11  Mod,  207;  Badger  v.  Lloyd,  1  I^d.  Raym.  526; 
«.  c.  1  Salk.  233;  Atty.-Gen.  v.  Gill,  2  P.  Wms.  369;  Terry  v.  Briggs,  12 
Mete.  22.  But  see  ante,  Sec.  39.3,  notes.  See  Teit  v.  Richard  (N.  J. 
Ch.  1902),  53  Atl.  Rep.  824;  May  v.  Lewis  (S.  C.  1903),  43  S.  E.  Rep. 
650. 

87  577 


§  397  EXECUTORY  DEVISES.  fPART   II. 

indefinite  failure  of  issue/"  which,  as  will  be  shown  in  a  sub- 
sequent paragraph,  would  make  the  second  limitation  good,  if 
it  could  take  effect  as  a  remainder  after  an  estate  tail,  as 
above  explained,^^  and  void,  if  it  could  only  take  effect  as 
an  executory  devise.^*  The  tendency  in  this  country  at  the 
present  time  is  to  change  this  rule  of  construction,  by  statute 
or  by  judicial  legislation,  wherever  possible,  so  that  a  failure 
of  issue  would  mean  a  failure  upon  death  of  the  first  taker.^® 

88  Cole  17.  Goble,  13  C.  B.  445 ;  Pleydell  v.  Pleydell,  1  P.  Wms.  748 
Williamson  V.  Daniel,  12  Wheat.  568;  Brattleboro'  V.  Mead,  43  Vt.  556 
Nightingale  V.  Burrill,  15  Pick.  104;  Jackson  V.  Billinger,  18  Johns 
368;  Miller  V.  Macomb,  26  Wend.  229;  Moore  v.  Rake,  26  N.  J.  L.  574 
Kleppner  v.  Laverty,  70  Pa.  St.  70;  Ingersoll's  Appeal,  86  Pa.  St.  240 
Voris  V.  Sloan,  68  111.  588;  Pennington  V.  Pennington,  70  Md.  418 
Hackney  v.  Tracy,  137  Pa.  St.  53.  A  more  liberal  rule  prevailed  in  re- 
spect to  personal  property  and  chattel  interests  in  real  property,  and 
very  slight  evidence  was  sufficient  to  make  the  "  failure  of  issue  "  mean 
a  definite  failure.  Allender  V.  Sussan,  33  Md.  11,  3  Am.  Rep.  171; 
Morehouse  v.  Cotheal,  22  N.  J.  L.  430.  In  Brummet  v.  Barber,  2  Hill 
(S.  C.)  543,  Judge  O'Neall  says:  "Although  there  is  no  such  positive 
and  substantial  legal  distinction,  yet  there  is  no  doubt  that  the  court 
is  not  so  strictly  bound  down  to  an  artificial  rule  of  construction  in  per- 
sonal as  in  real  estate,  and  that  in  the  former  they  will  lay  hold  of 
words  to  tie  up  the  generality  of  the  expression  *  dying  without  issue  * 
and  confine  it  to  dying  without  issue,  living  at  the  time  of  the  first 
taker's  death,  which  would  not  have  that  effect  in  the  latter."  But 
before  declaring  the  term  "  failure  of  issue,"  or  "  dying  without  issue," 
to  mean  an  indefinite  failure  of  issue,  the  whole  will  must  be  scanned, 
in  order  to  discover  the  intention  of  the  testator.  The  common  law, 
however,  required  clear  proof  of  a  contrary  intention  to  overcome  the  or- 
dinary presumption  of  law  in  favor  of  its  being  an  indefinite  failure  of 
issue.  See  cases  cited  supra.  In  Chism  v.  Williams,  29  Mo.  288,  Judge 
Napton  says:  "The  question  is,  conceding  that  the  words  'dying 
without  issue '  mean  an  indefinite  failure  of  issue,  are  there  other  words 
Which,  of  themselves,  and  in  despite  of  this  general  manifestation  of 
intention  to  keep  the  property  indefinitely  in  the  descendants  of  the  first 
taker,  point,  incontestably  and  unequivocally  to  the  death  of  the  first 
taker  as  a  period  contemplated  by  the  testator  when  the  limitation  over 
should  take  effect." 

37  See  ante,  Sec.  393,  and  notes. 

88  See  post.  Sec.  399. 

8»  Such  is  the  statutory  rule  in  Alabama,  California,  Georgia,  Ken- 
578 


CH.    XV.]  EXECUTORY   DEVISES.  §  397 

And  it  may  be  stated  as  a  general  proposition  that  in  the 
other  States  the  courts  are  receding  from  their  former  strict 
construction  in  favor  of  its  being  an  indefinite  failure  of 
issue,  so  that,  whenever  it  is  possible  to  gather  together  suffi- 
cient circumstances  to  establish  the  intention  to  limit  upon 
a  definite,  instead  of  an  indefinite,  failure  of  issue,  the  courts 
will  readily  do  so,  sometimes  availing  themselves  of  very  slight 
circumstances  in  order  to  reach  the  conclusion  which  is  most 
favorable  to  the  validity  of  the  devise.  For  example,  in  a 
devise  to  Thomas  and  his  heirs,  and  if  he  die  without  issue, 
living  "William,  then  to  William,  the  devise  was  held  to  refer 
to  a  failure  of  issue  during  the  life  of  William.*"  So,  also, 
where  the  contingency  was  that  the  person  should  die,  leaving 
no  issue  behind  him,  or  where  the  second  limitation  was  only  a 
life  estate,  it  was  held  to  mean  a  definite  failure  of  issue.*^ 

tucky,  Maryland,  Michigan,  Minnesota,  Mississippi,  Missouri,  New  Jer- 
sey, New  York,  North  Carolina,  South  Carolina,  Tennessee  and  Vir- 
ginia. 2  Jar.  on  Wills  (5  Am.  ed.)  340;  Worrill  v.  Wright,  25  Ga.  659; 
Condict  V.  King,  13  N.  J.  375;  Fields  v.  Watson,  23  S.  C.  42;  Ford  v. 
Cook,  73  Ga.  215;  Black  V.  Williams,  51  Hun  380. 

*o  Pells  V.  Brown,  Cro.  Jac.  590. 

*i  Porter  v.  Bradley,  3  T.  R.  143 ;  Trafford  V.  Boehm,  3  Atk.  440 ; 
Forth  V.  Chapman,  1  P.  Wms.  663.  Where  the  limitation  over  is  to 
others,  or  to  the  surviving  children  or  issue  of  the  first  taker,  a  definite 
failure  of  issue  is  generally  presumed  to  be  intended.  Jackson  v.  Chew, 
12  Wheat.  153;  Brightman  V.  Brightman,  100  Mass.  238;  Lion  V.  Bur- 
tiss,  20  Johns.  483;  Cutter  v.  Doughty,  23  Wend.  513;  IngersoU's  Ap- 
peal, 86  Pa.  St.  240.  The  tendency  is  to  construe  "  die  unthout  leav- 
ing issue,"  or  "  leaving  no  issue,"  as  meaning  a  definite  failure  of  is- 
sue. Maurice  v.  Maurice,  43  N.  Y.  303;  Hill  v.  Hill,  74  Pa.  St.  173, 
15  Am.  Rep.  545;  Edwards  v.  Bibb,  43  Ala.  666.  Contra,  Malcom  V. 
Malcom,  3  Cush.  472 ;  Haldeman  v.  Haldeman,  40  Pa.  St.  29 ;  Patterson 
V.  Ellis,  11  Wend.  289;  Tongue  v.  Nutwel,  13  Md.  415.  So,  also,  was 
a  definite  failure  of  issue  held  to  be  intended  by  the  clause  dying  "  with- 
out lawful  heirs,"  or  "  without  lawful  heirs  of  his  body."  Abbott  V. 
Essex  Co.,  18  How.  202;  Seibert  v.  Butz,  9  Watts  490;  Berg  V.  Ander- 
son, 72  Pa.  St.  87;  Simmonds  v.  Simmonds,  112  Mass.  157;  Bullock  v. 
Seymour,  33  Conn.  290.  On  the  other  hand,  a  devise  to  sons,  but  if 
they  die  without  issue,  then  "to  my  surviving  children,"  has  been  held 
to  mean  an  indefinite  failure  of  issue.  See  Lapsley  v.  Lapsley,  9  Pa. 
St.  130;  Clark  v.  Baker,  3  Serg.  &  R.  470;  Doyle  v.  Mullady,  33  Pa. 

579 


§  :J08  EXECUTORY    DEVISES.  [PART   II. 

But  the  limitation  over  must  be  defined  to  take  effect  upon 
failure  of  issue,  in  order  to  cut  down  the  preceding  estate  from 
an  estate  in  fee  simple.  And  if  the  limitation  over  is  to  vest 
upon  failure  of  "heirs"  of  the  first  taker,  the  limitation 
would  be  invalid  unless  the  word  "heirs"  eould  be  construed 
to  mean  issue.** 

§  398.  Same  —  In  deeds. —  The  rules  of  construction,  as 
stated  above,  although  in  the  main  referable  to  springing  and 
shifting  uses  created  by  deed,  must  in  their  application  to 
these  limitations  receive  the  further  restriction  that  there  are 
sufficient  technical  words  of  limitation  present  to  convert  the 
prior  limitation  into  a  fee  tail.  If  the  first  limitation  is 
expressly  an  estate  in  fee  simple,  the  second  limitation  over 
upon  failure  of  issue  of  the  first  taker  would  not  convert  the 
former  into  an  estate  tail,  although  the  same  limitation  in  a 
will  would  have  had  that  effect.  Thus  a  conveyance  to  A.  and 
his  heirs,  and  if  he  should  die  without  issue,  then  over,  A. 
would  take  a  fee  upon  condition,  instead  of  an  estate  tail,  as 
he  would  have  done  if  the  limitation  had  been  by  devise.*^     On 

St.  264;  Holeombe  v.  Lake,  25  N.  J.  L.  605.  So,  also,  to  A.  and  B., 
their  heirs  and  assigns,  but  if  they  die  without  issue,  then  over.  Lilli- 
bridge  v.  Adie,  1  Mason  224.  The  truth  is,  the  old  rule,  by  which  these 
questions  were  determined,  was  really  arbitrary,  and  in  most  cases  di- 
rectly contrary  to  the  real  intention  of  the  testator,  although  the  courts 
professed  to  follow  his  intention  as  it  appeared  vipon  the  will.  For 
example,  in  the  case,  cited  above,  of  jMevise  to  two  or  more  sons,  and 
if  they  should  die  without  issue,  "  thra  to  my  surviving  children,"  an 
indefinite  failure  of  issue  was  held  to  be  intended;  whereas  the  most 
natural  and  rational  construction  was,  that  the  testator  intended  his 
surviving  children  to  take,  in  the  event  of  the  death  of  one  of  them 
without  issue.  Those  States  which  have  by  statute  cut  loose  from  these 
common-law  rules  have  acted  wisely.  See  Peterson  v.  Jackson,  196  111. 
40,  63  N.  E.  Rep.  643. 

42Honiet  V.  Bacon,  126  Pa.  St.  176;  Cochran  v.  Cochran,  127  Pa.  St. 
486;  Underwood  v.  Bobbins,  117  Ind.  308.  See  Underwood  V.  Magruder 
(Ky.  1905),  87  S.  W.  Rep.  1076. 

43Coltman  v.  Senhouse,  Pollexf.  536;  Daviess  V.  Speed,  2  Salk.  675; 
Abraham  v.  Twigg,  Cro.  Eliz.  478;  Hall  v.  Priest,  6  Gray  18;  2  Washb. 
on  Real  Prop.  711,  712.  It  is  apparent,  from  the  small  number  of  cases 
580 


CH.    XV.]  EXECUTORY    DEVISES.  §   J^99 

the  other  hand,  the  question  as  to  the  definite  or  indefinite 
failure  of  issue  is  more  liberally  determined  when  it  refers  to 
shifting  uses  than  in  the  case  of  executory  devises,  because  of 
the  common  disinclination  of  the  courts  to  construe  the  wilL 
so  as  to  disinherit  the  heir  at  law.** 

§  399.  Doctrine  of  perpetuity. —  We  have  seen  that  the  com- 
mon-law restrictions,  as  to  the  kinds  and  classes  of  estates 
which  might  be  carved  out  of  a  fee,  do  not  apply  to  executory 
devises  or  springing  and  shifting  uses.  As  a  consequence,  if 
there  was  no  restraint  as  to  the  time  when  an  executory 
devise  or  future  use  should  vest  in  possession,  lands  might  be 
so  conveyed  to  uses,  or  by  way  of  executory  devises,  that  the 
power  of  alienation  might  be  indefinitely  suspended,  thereby 
preventing  that  change  of  ownership  in  lands,  which  has  ever 
been  considered  so  salutary  to  the  welfare  of  the  country.  The 
courts,  therefore,  at  a  very  early  day,  laid  down  the  rule 
that  executory  interests,  whether  by  way  of  use  or  devise, 
must,  in  order  to  be  valid  limitations,  take  effect  in  possession 
within  a  life  or  lives  in  being,  and  twenty -one  years  there- 
after.*''    To  this  was   added   the  nine  months   required  by 

cited,  that  this  question  very  rarely  arises  in  respect  to  springing  and 
shifting  uses. 

**2  Washburn  on  Real  Prop.  711;  Forth  v.  Chapman,  1  P.  Wms.  663; 
Hall  V.  Priest,  6  Gray  18. 

■ts  2  Washburn  on  Real  Prop.  701,  702.  This  limit  of  the  time  within 
which  an  executory  interest  must  take  effect  in  possession  to  be  valid 
was,  no  doubt,  suggested  by  the  fact  that  an  estate  tail,  according  to  the 
English  law,  could  not  be  made  inalienable  for  any  longer  period.  For 
example,  A.  would  settle  his  lands  to  himself  for  life,  remainder  to  his 
eldest  son  in  tail  male,  remainder  to  his  second  son  in  tail  male,  remain- 
ders over.  Since  an. estate  tail  could  be  barred  by  common  recovery,. 
A.,  in  settling  his  estate  in  this  manner,  could  only  make  the  lands  in- 
alienable until  the  eldest  son  was  born  and  became  of  age.  It  would, 
therefore,  at  the  farthest,  remain  inalienable  during  his  life  and  twenty- 
one  years  thereafter,  viz.,  a  life  or  lives  in  being  and  twenty-one  yeara 
thereafter.  This  doctrine  as  to  the  probable  origin  of  the  doctrine  of 
perpetuity  is  supported  by  Mr.  Washburn  (2  Washburn  on  Real  Prop. 
702) ;  and  it  might  be  inferred  from  the  discussion  by  Mr.  Williams  of 

581 


§  399  EXECUTORY    DEVISES.  [PART    11. 

nature  for  the  gestation  of  a  child  en  ventre  sa  mere,  when 
posthumous  children  were  declared  capable  of  taking  future 
estates.*®  If  the  executory  interest  could,  by  any  possibility, 
take  effect  beyond  that  period,  it  was  void,  even  though  it 
afterwards  did,  as  a  matter  of  fact,  take  effect  within  the 
period.  It  must  be  absolutely  certain  to  vest  within  that 
period,  if  at  all,  in  order  to  be  valid.*^  If  the  future  limita- 
tions be  void  for  this  reason,  it  leaves  the  prior  limitation, 
if  any,  free  from  the  condition,  making  what  was  a  condi- 
tional estate  an  absolute  one.*^  A  limitation,  void  because  it 
offends  the  doctrine  of  perpetuity,  will  be  void  altogether,  and 
cannot  be  held,  under  the  cy  pres  rule  of  construction,  to  be 
good  as  to  that  part  which  keeps  within  the  period  of  per- 
petuity, and  void  only  as  to  the  excess.**     And  where  the 

estates  tail,  marriage  settlements,  and  the  doctrine  of  perpetuity  in  the 
same  connection  (see  Williams  on  Real  Prop.  50,  51),  that  he  also  had 
in  mind  the  idea  of  their  common  origin. 

46  2  Washburn  on  Real  Prop.  702,  703;  Williams  on  Real  Prop.  319. 

*7  Purefoy  V.  Rogers,  2  Saund.  388 ;  Nottingham  V.  Jennings,  1  Salk. 
233;  Duke  of  Norfolk's  Case,  2  Chanc.  Cas.  1;  Wood  v.  Griffin,  46  N. 
H.  234;  Andrews  v.  Jackson,  16  Johns.  399; 'Donahue  v.  McNichols,  61 
Pa.  St.  78;  Mandlebaum  V.  McDonnell,  29  Mich.  78,  18  Am.  Rep.  61; 
Appleton's  Appeal,  136  Pa.  St.  354.  See  contra,  Palms  v.  Palms 
(Mich.),  36  N.  W.  Rep.  419. 

•*8Tud.  Ld.  Cas.  361;  Nottingham  V.  Jennings,  1  Salk.  233;  Beard  V. 
Westcott,  5  B.  &  Aid.  801;  Philadelphia  v.  Girard,  45  Pa.  St.  27;  Shep- 
hard  v.  Shephard,  2  Rich.  Eq.  142;  Coggin's  Appeal,  124  Pa.  St.  579; 
Hale  V.  Hale,  124  111.  399;  Fowler  v.  Ingersoll,  50  Hun  60;  Stout  v. 
Stout  44  N.  J.  Eq.  479;  Goldtree  V.  Thompson,  79  Cal.  613;  Penning- 
ton V.  Pennington,  70  Md.  418;  Henderson  v.  Henderson,  46  Hun  509; 
Brown  v.  Brown  (Tenn.),  6  S.  W.  Rep.  869;  Fowler  v.  Ingersoll,  2  N.  Y. 
S.  833;  Davis  v.  Buford's  Exrs.   (Ky.),  3  S.  W.  Rep.  4. 

48  Leak  v.  Robinson,  2  Meriv.  362;  Fox  v.  Porter,  6  Sim.  485;  Evers 
V.  Challis,  7  H.  L.  Cas.  555;  Jackson  v.  Phillips^  14  Allen  572.  Still 
there  is  a  class  of  cases,  in  which  parts  of  a  testator's  will  will  be  car- 
ried into  effect,  while  other  parts  which  are  void  on  account  of  remote- 
ness, will  be  discarded.  But  this  will  be  done,  only  when  substantial 
justice  will  be  done  to  all  parties  concerned,  and  when  the  paramount  or 
general  intention  of  the  testator  would  then  be  carried  into  effect.  See 
Arnold  v.  Congreve,  1  Russ.  &  Myl.  279;  Carver  v.  Bowles,  2  Russ.  & 
Myl.  306;  Church  v.  Kemble,  5  Sim.  522. 
582 


CH.    XV.]  EXECUTORY    DEVISES.  §  399 

devise  is  susceptible  of  two  or  more  constructions,  that  con- 
struction will  be  adopted  which  will  not  offend  the  rule  of 
perpetuity. "^^  If  the  limitation  is  dependent  in  the  alternative 
upon  one  of  two  events,  one  of  which  must  happen  within 
the  period  of  perpetuity  while  the  other  is  remote,  it  will  be 
a  good  limitation,  except  that  it  will  vest  only  upon  the  hap- 
pening of  the  event  which  is  not  remote,  while  the  other  con- 
dition is  void  and  has  no  effect  upon  the  devise.'^  The  great 
est  difficulty  is  experienced  in  applying  this  rule  against  per- 
petuity to  limitations,  upon  failure  of  issue.  If  the  limita- 
tion cannot  be  construed  as  a  reminder  after  an  estate  tail,  or 
an  executory  devise  to  take  effect  upon  a  definite  failure  of 
issue,  it  would  be  void,  since  an  executory  devise,  after  an  in- 
definite failure  of  issue,  cannot  always  take  effect  within  the 
period  of  perpetuity."*^  Since  estates  tail  cannot  be  created 
out  of  a  term  of  years,  the  courts  are  inclined  to  construe  a 
failure  of  issue  in  the  devise  of  a  term  to  mean  a  definite  fail- 
ure of  issue,  referable  to  the  death  of  the  ancestor,  upon  the 
failure  of  whose  issue  the  future  limitation  is  to  vest.  Other- 
wise such  future  limitation  could  never  take  effect,  since  it 
would  always  offend  the  rule   against  perpetuities."*'     It  is 

50  Roe  V.  Vingut,  117  N.  Y.  204;  Sulany  r.  Middleton  (Md.).  10 
Atl.  Rep.  146.  The  rule,  in  construing  a  will,  that  the  law  favors  the 
vesting  of  estates  in  the  common-law  sense  and  in  the  statutory  sense, 
as  regards  the  subject  of  perpetuities,  is  not  for  use  except  in  solving 
uncertainties.     In  re  Moran's  Will   (Wis.  1903),  96  N.  W.  Rep.  367. 

51  Fowler  v.  Depan,  26  Barb.  224;  Schetter  v.  Smith,  41  N.  Y.  328; 
Armstrong  V.  Armstrong,  14  B.  Mon.  333;  Burrill  v.  Boardman,  43 
N.  Y.  254. 

52  Forth  V.  Chapman,  1  P.  Wms.  663;  Doe  v.  Ewart,  7  A.  &  E.  636; 
Terry  V.  Briggs,  12  Mete.  22;  Hall  V.  Priest,  6  Gray  18;  Anderson  r. 
Jackson,  16  Johns.  382;  Gray  v.  Bridgworth,  33  Miss.  312;  Hackney  v. 
Tracy,  137  Pa.  St.  53.  As  to  when  such  a  limitation  would  be  a  re- 
mainder after  an  esate  tail,  instead  of  an  executory  devise  after  a  fee, 
see  ante,  Sec.  393.  As  to  when  a  definite  or  indefinite  failure  of  issue 
is  intended,  see  ante,  Sees.  397,  398. 

53  Forth  V.  Chapman,  1  P.  Wma.  663;  Hall  v.  Priest.  6  Gray  18;  Allen- 
der's  Lessee  v.  Sussan,  33  Md.  11,  3  Am.  Rep.  171;  Morehouse  v.  Cotheal, 
22  N.  J.  L.  430;  BiscOe  v.  Biscoe,  6  Gill  &,  J.  232;   Brummei  v.  Bar- 

583 


§  399  EXECUTOKY    DEVISES.  [PART   II. 

also  difficult  at  times  to  determine  whether  in  the  case  of  an 
executory  devise  to  a  class,  when  some  cannot  take  because  too 
remote,  the  whole  devise  is  void  as  against  perpetuity,  or  only 
that  part  which  offends.  The  determination  of  the  question 
depends  upon  the  ability  to  separate  the  good  from  the  bad, 
and  at  the  same  time  preserve  the  intention  of  the  testator.  If 
this  can  be  done,  and  the  parties  who  cannot  take  are  not 
thereby  prejudiced,  then  only  that  part  of  the  devise  will  be 
void  which  is  too  remote,  while  the  devise  will  be  upheld  and 
carried  out  in  favor  of  those  who  can  take.  If  the  partial 
enforcement  of  the  devise  will  work  an  injury  to  those  who 
are  excluded,  or  confer  upon  the  fortunate  ones  benefits,  not 
intended  by  the  testator,  the  whole  devise  will  then  be  void.^* 
It  must  always  be  borne  in  mind  that  the  rule  of  perpetuity 
only  prohibits  the  vesting  of  future  contingent  estates  beyond 
the  permissible  period.  Hence,  whenever  the  devise  is  vested 
the  postponement  of  the  time  of  enjoyment  beyond  the  period 
of  perpetuity  does  not  affect  the  validity  of  the  limitation.'"' 
In  this  country  the  common  law  rule  of  perpetuity,  that  future 
limitations  must  vest  within  a  life  or  lives  in  being  and  twenty- 
one  years  thereafter,  still  generally  prevails,  although  in  some 
of  the  States  the  period  has  been  shortened  by  statute.  The 
most  important  change  was  made  in  New  York  and  other 
States,  where  the  period  was  limited  to  two  lives  in  being.^" 

ber,  2  Hill  (S.  C),  543;  Moore  v.  Howe,  4  B.  Mon.  199.  See  Teit 
T.  Richard  (N.  J.  Ch.  1902),  53  Atl.  Rep.  824;  Stone  v.  Bradlee 
(Mass.  1903),  66  N.  E.  Rep.  324. 

54  James  v.  Wynford,  1  Smale  &  G.  40;  Griffith  v.  Pownall,  13  Sim. 
393;  Catlin  v.  Brown,  11  Hall  372;  Webster  v.  Boddington,  20  Beav. 
128.  See  2  Washb.  Real  Prop.  727-730;  Stout  V.  Stout  (N.  J.),  15  Atl. 
Rep.  843;  Andrews  v.  Rice,  53  Conn.  566. 

65  Hillyer  v.  Vandcwater,   121  N.  Y.  681. 

56  1  Rev.  Stat.  N.  Y.  723,  Sec.  15;  Greenland  v.  Waddell,  116  N.  Y. 
234;  Henderson  v.  Henderson,  46  Hun  509;  Wood's  Estate,  55  Hun 
204;  Haynes  v.  Sherman,  117  N.  Y.  433;  Kennedy  v.  Hoy,  105  N.  Y. 
134;  Ward  v.  Ward,  105  N.  Y.  68;  Ford  v.  Ford,  70  Wis.  19;  Rice  v. 
Barrett,  102  N.  Y.  161;  Farrand  v.  Petit,  84  Mich.  671;  Cotting  V. 
Schermeshorn,  58  Hun  610;  Lee  v.  Tower,  124  N.  Y.  370. 
584 


CH.    XV.]  EXECUTORY    DEVISES,  §  400 

The  same  change  in  the  rule  has  been  made  in  other  States. 
But  this  caution  must  be  observed  in  determining  which  rule 
of  perpetuity  applies.  While  generally  the  limitation  will  be 
governed  by  the  rule  of  perpetuity  of  the  State  in  which  the 
testator  was  domiciled,  or  his  real  estate  was  situated,  if  the 
limitation  referred  to  real  property  at  the  time  of  his  death,^^ 
yet  it  has  been  held  that  where  the  testator  directs  his  executor 
to  sell  his  lands  in  one  State,  and  re-invest  in  lands  in  another 
State,  subject  to  trusts  and  limitations,  which  offend  the  rule 
of  perpetuity  in  the  former  State,  but  which  is  valid  according 
to  the  rule  in  the  latter  State,  the  limitation  will  be  valid.'^* 

§  400.  Rule  ag^ainst  accumulation  of  profits. —  It  is   very 

often  desirable  that  testators  should  have  the  right  to  direct 
that  the  profits  of  their  estates  should  be  allowed  to  accumulate 
for  a  certain  time  before  being  distributed  among  the  persons 
designated  in  the  will.  At  common  law  there  was  no  restric- 
tion as  to  the  time  within  which  the  profits  may  be  directed  to 
accumulate,  except  the  rule  of  perpetuity.  As  long  as  the  ac- 
cumulation was  kept  within  the  period  of  perpetuity  it  was  a 
valid  limitation.  This  is  the  general  rule  of  law  in  this 
country  at  the  present  day,''®  but  in  England,  and  in»some  of 
the  States,  such  accumulations  are  prohibited  for  a  longer 
period  than  the  life  of  the  grantor  and  twenty-one  years  there- 
after, or  the  minority  of  the  person  or  persons  who  are  to 
take.«» 

67  See  post.  Sec.  629. 
.     68 Ford  V.  Ford  (Mich.),  44  N.  W.  Rep.  1057. 

59  2  Washburn  on  Heal  Prop.  730;  Hale  f.  Hale  (HI.),  17  N.  E.  Rep.  470. 
In  New  York  and  Pennsylvania  statutes  have  been  passed,  similar  in 
their  provisions  to  the  English  statute  mentioned  in  the  text.  1  Rev. 
Stat.  N.  Y.  726,  Sec.  .37;  Manice  v.  Manice,  43  N.  Y.  305;  Pard.  Dig. 
(Pa.  St,  Laws)  853.  See  Morrison  v.  Schoer  (111.  1902),  64  N.  E.  Rep. 
545;  Tobin  v.  Graf,  80  N.  Y.  S.  5. 

60  Statute  39,  40  Geo,  III  Ch.  98;  2  Washburn  on  Real  Prop.  731; 
Williams  on  Real  Prop.  320;  Goldtree  t\  Thompson,  79  Cal.  G13;  Roe  r. 
Vingut  117  N.  Y.  204;  Farmer's  Estate,  6  Dens.  433;  Schwartz's  App. 
119  Pa.  St.  337;  Brubaker's  Appeal   (Pa.),  15  Atl,  Rep.  708;  Scott  f, 

585 


§  401  EXECUTORY    DEVISES.  [PART   II. 

§  401.  Executory  devises  of  chattel  interests. —  At  common 
law  a  remainder  could  not  be  limited  in  a  chattel  interest,  after 
a  prior  limitation  for  life,  or  for  any  indefinite  period  which 
would  be  a  freehold  estate,  if  carved  out  of  a  fee.  Such  limita- 
tions would  be  void  as  common-law  estates."^  Nor  can  an  es- 
tate tail  be  created  out  of  a  term,  the  statute  de  donis  referring 
only  to  tenements,  estates  of  which  tenure  can  be  predicated. 
A  devise  of  a  chattel  interest  to  one  and  the  heirs  of  his  body 
would  be  the  devise  of  an  absolute  estate.*^^  But  the  rule 
in  Shelley's  Case  has  been  held  to  apply  to  the  limitations  of 
leasehold  estates,  so  that  if  a  leasehold  be  devised  to  A.,  for 
life,  with  remainder  to  the  heirs  of  the  body  or  in  general  of 
A.,  A.  will  take  an  absolute  estate  in  fee,  instead  of  fol*  life.^' 
But  future  limitations  were  at  an  early  day  permitted  to  be 
created  in  chattel  interests  to  take  effect  as  executory  devises, 

West,  63  Wis.  529.  This  statute  was  passed  in  consequence  of  the  foolish 
and  vain  ambitions  of  a  man  named  Thelluson,  to  make  the  later  genera- 
tions of  his  family  wealthy  and  powerful,  by  providing  in  his  will  for  the 
accumulation  of  the  profits  during  the  lives  of  his  then  existing  heirs. 
If  it  had  been  carried  out,  the  estate  would  have  amounted  to  £19,000,- 
000,  and  it  was  then  to  be  distributed  among  two  or  three  persons. 
The  will  attracted  widespread  attention,  and,  it  being  thought  dangerous 
to  permit  the  accumulation  of  such  vast  wealth  in  the  hands  of  pri- 
vate persons,  as  well  as  cruel  and  unjust  to  the  immediate  heirs,  an  at- 
tempt was  made  to  break  the  will.  See  Thelluson  V.  Woodford,  1  B.  & 
P.  N.  R.  396;  s.  c.  4  Ves.  227.  But  the  court  declared  the  limitation 
valid,  since  it  did  not  break  the  rule  against  perpetuities.  The  will 
provided  for  the  accumulation  of  the  profits  of  the  estate  during  the 
lives  of  all  his  children,  grandchildren  and  great-grandchildren  living 
at  his  death,  and  should,  at  the  death  of  the  last  survivor,  be  divided 
up  among  certain  descendants  who  would  then  be  in  being.  It  will  he 
apparent  that  the  testator  kept  within  the  rule  against  perpetuity. 

612  Washburn  on  Real  Prop.  722;  Fearne  Cont.  Rem.  401;  Tissen  V. 
Tissen,  1  P.  Wms.  .500;  Manning's  Case,  8  Rep.  95;  Smith  v.  Bell,  6  Pet. 
68;  Merrill  r.  Emery.  10  Pick.  507;  Gillespie  V.  Miller,  5  Johns.  Ch.  21; 
Cooper  V.  Cooper,  1  Brev.  355. 

62  2  Washburn  on  Real  Prop.  723;  Fearne  Cont.  Rem,  401,  466;  Lovies' 
Case,  10  Rep.  87;  Doe  v.  Lyde,  1  T.  R.  593;  Hughes  v.  Nicklas,  70  Md. 
484. 

63  Hughes  V.  Nicklas,  70  Md.  484;  Markley's  Appeal,  132  Pa.  St.  352. 
See  Baldwin  v.  Tucker  (N.  J.  Ch.  1902),  55  Atl.  Rep.  1132. 

586 


CH.    XV.j  EXECUTORY    DEVISES.  §  401 

and  it  matters  not  whether  there  is  or  is  not  a  preceding  limi- 
tation, or  whether  the  second  limitation  takes  effect  in  deroga- 
tion of  the  prior  limitation.  In  each  case  the  future  limitation 
is  construed  as  an  executory  devise;  and  the  rules  here  laid 
down  for  the  government  of  the  other  two  classes  of  executory 
devises  are  in  the  main  applicable  to  these.***  The  only  restric- 
tion upon  the  power  to  create  a  future  estate  in  a  chattel  lies 
in  the  nature  of  the  chattel  itself.  If  it  is  in  its  nature  cap- 
able of  sustaining  a  present  and  a  future  enjoyment,  a  future 
limitation  will  be  good.  But  if  the  present  enjoyment  of  the 
chattel  involves  a  consumption  of  the  thing  itself,  then  of  ne- 
cessity any  future  limitation  would  be  void.®'  If  the  remain- 
der is  limited  in  a  chattel  interest  to  the  "heirs"  of  a  certain 
person,  the  remainder-men  will  be  ascertained  by  ascertaining 
who  will  inherit  the  real  estate  under  the  statute  of  descent.**" 

«<Tissen  v.  Tissen,  1  P.  Wms.  500;  Merrill  v.  Emery,  10  Pick.  507; 
Gillespie  v.  Miller,  5  Johns.  Ch.  21;  Moffatt  V.  Strong,  10  Johns.  12; 
Keene's  Appeal,  64  Pa.  St.  273;  2  Bla.  Com.  174;  2  Washburn  on  Real 
Prop.  724;  Miller's  Ex'x  V.  Simpson   (Ky.),  2  S.  W.  Rep.   171. 

65Atty.-Gen,  v.  Hall,  Fitzg.  314;  Bull  v.  Kingston,  1  Meriv.  314;  2 
Washburn  on  Real  Prop.  724.  But  see  Upwell  V.  Halsey,  1  P.  Wms.  652 ; 
Smith  V.  Bell,  6  Pet.  68;  Rubey  V.  Barnett,  12  Mo.  1;  Whittemore  v. 
Russel,  80  Me.  297;  Walker  v.  Pritchard,  121  111.  221. 

««  Lincoln  v.  Aldrich,  149  Mass.  368;  Mason  v.  Bailey  (Del.),  14  Atl. 
Rep.  309;  Little's  Appeal,  117  Pa.  St.  14;  Reed's  Appeal,  118  Pa.  St. 
215.  But  see  White  v.  Stanfield  (Mass.),  15  N.  E.  Rep.  919.  See  Lacey 
V.  Floyd  (Texas  1905),  87  S.  W.  Rep.  665;  Belcher's  Est.  (Pa.  1905), 
61  Atl.  Rep.  252. 

587 


CHAPTER  XVI. 

POWERS. 

Section  402.  The  nature  of  powers  in  general. 

403.  Powers  of  appointment. 

404.  Kinds  of  powers. 

405.  Suspension  and  destruction  of  powers. 

406.  How  powers  may  be  created. 

407.  Powers  distinguished  from  estates. 

408.  Power  enlarging  the  interest,  with  which  it  is  coupled. 

409.  Who  can  be  donees. 

410.  By  whom  the  power  may  be  executed. 

411.  Mode  of  execution. 

412.  Who  may  be  appointees. 

413.  Execution  by  implication. 

414.  Excessive  execution. 

415.  Successive  execution. 

416.  Revocation  of  appointment. 

417.  Defective  executions  —  How  and  when  cured. 

418.  Non-executions. 

419.  Rules  of  perpetuity. 

420.  Rights  of  donee's  creditors  in  the  power, 

421.  The  rights  of  creditors  of  the  beneficiary. 

§  402.  The  nature  of  powers  in  general. —  A  power,  in  the 
most  comprehensive  sense  in  which  the  word  can  be  used,  is 
an  authority  conferred  upon  a  person  to  do  a  thing.  But  in 
its  present  application  it  signifies  an  authority  to  dispose  of 
property,  which  is  vested  either  in  the  person  exercising  the 
power,  or  in  some  other  person.  Under  this  latter  signification 
three  distinct  classes  of  powers  will  be  recognized :  First,  stat- 
utory powers ;  second,  powers  of  attorney ;  and  third,  what  are 
generally  called  powers  of  appointment,  or  simply  powers.  A 
statutory  'power  is  one  which  is  created  and  vested  in  a  per- 
son by  legislative  enactment.  It  is  an  act  of  the  government ; 
it  derives  its  authority  from  the  Legislature,  and  is  subject  to 
588 


CH.    XVI.]  POWERS.  §  403 

the  same  rules  of  interpretation  and  construction  as  statutes  in 
general.^  Powers  of  attorney  are  authorities  conferred  by  a 
principal  upon  an  agent  to  perform  certain  acts  in  the  manner 
indicated  in  the  instrument  of  authority.  The  exercise  of  this 
power  is  the  act  of  the  principal  through,  or  by  means  of,  the 
agent.  It  is  exercised  in  the  name  of  the  principal,  and  re- 
quires as  much  formality  in  execution  as  if  the  principal  were 
acting  himself.  This  class  of  powers,  so  far  as  they  pertain  to 
the  law  of  real  property,  will  be  more  specifically  explained 
in  subsequent  pages."  In  both  classes  of  powers  just  men- 
tioned, statutory  powers  and  powers  of  attorney,  the  legal  title 
to  the  property  thus  disposed  of  is  conveyed,  not  by  the  crea- 
tion of  the  power,  but  by  the  deed  of  conveyance  made  in  pur- 
suance of  the  power.  The  title  remains  in  the  original  owner, 
unaffected  by  the  creation  of  the  power,  until  its  execution.  It 
is  divested  only  when  the  deed  of  conveyance  is  executed  and 
delivered.^ 

§  403.  Powers  of  appointment. —  The  third  class  of  powers, 
enumerated  above,  is  what  concerns  us  at  present,  viz. :  powers 
of  appointment.  These  powers,  which  are  generally  kpown 
simply  as  powers,  are  modes  of  disposition  of  property,  which 
operate  under  the  Statute  of  Uses  or  the  Statute  of  "Wills. 
The  creation  of  the  power  invests  in  the  person  to  whom  it  is 
granted,  called  the  donee,  a  present  indefea.sible  executory  in- 
terest in  the  land.  It  is  a  right  to  convey  the  land,  and  cannot 
be  revoked  by  the  donor,  nor  is  it  revoked  by  his  death.*     The 

1  Baltimore  v.  Porter,  18  Md.  284.  See  also,  Markham  v.  Porter,  33 
Ga.  508;  In  the  Matter  of  Bull,  45  Barb.  334;  Leak  v.  Richmond  Co.,  64 
N.  C.  132. 

2  See  post,  Sees.  569,  570. 

S2  Washburn  on  Real  Prop.  610;  1  Sugden  on  Pow.  (ed.  1856),  1,  171, 
174 ;  3  Washburn  on  Real  Prop.  277-279.  "  A  power  of  sale  may  law- 
fully reside  in  one  who  has  no  legal  or  equitable  interest  in  the  property 
which  in  the  subject  of  sale."  Coleman  v.  Cabaniss  (Ga.  1904),  48  S. 
E.  Rep.  927. 

*  Roland  v.  Coleman,  76  Ga.  652. 

589 


§  403  POWERS.  [part  n, 

common  law  knows  of  no  class  of  powers  which  will  in  them- 
selves, by  their  very  creation,  convey  an  interest  in  real  prop- 
erty, and  thus  incumber  the  title  thereof."*  There  are  only 
two  modes  of  creating  such  a  power.  One  is  by  way  of  a  use. 
The  power  in  such  a  case  is  '*a  right  to  limit  a  use. "  (Kent.) 
In  the  exercise  of  the  power  a  use  is  created,  which  is  imme- 
diately executed  into  a  legal  estate  by  the  Statute  of  Uses  in 
the  person  to  whom  the  use  has  been  limited,  and  who  is  called 
the  appointee.  The  estates  created  by  means  of  these  powers 
are  either  contingent,  springing  or  shifting  uses,  according  to 
their  relation  with  the  other  limitations  in  the  deed  or  will  cre- 
ating the  power,  and  are  governed  by  the  same  rules  of  con- 
struction.* An  ordinary  contingent  use  vests  upon  the  hap- 
pening of  an  uncertain  event.  In  the  case  of  an  estate  created 
by  means  of  a  power  of  appointment,  the  uncertain  event  is 
the  exercise  of  the  power.''  The  other  mode  of  creating  this 
kind  of  power  is  by  will  under  the  Statute  of  Wills.  The  es- 
tate so  created  is  an  executory  devise,  deriving  its  force  and 
effect  from  the  will  itself.  All  powers  in  a  will  operate  under 
the  Statute  of  Wills,  except  where  it  takes  the  form  of  a  power 
to  limit  a  use,  and  there  is  a  special  seisin  raised  by  the  will 
to  support  the  use  thus  limited.  Then  it  operates  under  the 
Statute  of  Uses,  as  a  contingent  or  future  use.^  Whether  the 
power  be  created  by  deed  or  by  will,  the  appointee 's  estate  will 
have  the  same  characteristics  as  it  would  have  had  if,  instead 
of  the  power,  it  had  been  limited  in  the  instrument  creating 
the  power.  And  in  order  to  determine  the  rights  of  the  ap- 
pointee, and  the  validity  and  character  of  the  estate  appointed 
to  his  use,  it  must  be  tested  by  the  relation  it  would  bear  to 
the  other  limitations  of  the  property,  if  it  had  occupied  the 

5  Sugden  on  Pow.   (ed.  1856)   4;  Co.  Lit.  237  a.     See  contra,  Chance 
on  Pow.  Sees.  5-12. 

oCo.  Lit.  271  b,  n.  231;  Bac.  Law  Tr.  314;  1  Spence  Eq.  Jur.  455;  4 
Kent's  Com.  334 ;  Williams  on  Real  Prop.  394. 

7  Co.  Lit.  271  b,  Butler's  note,  231;  Tud.  Ld.  Cas.  264;  Sheph.  Tou6h. 
629;  Williams  on  Real  Prop.  294;  Rodgers  v.  Wallace,  5  Jones  L.  182. 

s  Sugden  on  Pow.  (ed.  1856)  240;  Prest,  Abst.  347. 
590 


CH.    XVI.  POWERS.  §  404 

place  of  the  power  in  the  original  instrument.  The  appointor 
is  merely  an  instrument  employed  to  limit  the  estate ;  the  ap- 
pointee is  in  by  the  original  instrument,  which  creates  the 
power.**  The  foregoing  explanation  of  the  doctrine  of  powers 
is  true  as  to  this  country  generally,  with,  perhaps,  the  only  ex- 
ception of  New  York  and  of  those  States  in  which  the  New 
York  legislation  has  been  copied.  In  those  States  all  powers, 
heretofore  known  as  operating  under  the  Statute  of  Uses  and 
the  Statute  of  Wills,  have  been  abolished,  and  only  certain 
powers,  enumerated  in  the  statute,  can  now  be  created.  But 
they  have  received  at  the  hands  of  the  courts  practically  the 
same  constructions  as  powers  in  other  States,  so  that  what  is 
subsequently  said  of  powers  of  appointment  is  equally  appli- 
cable to  powers  in  New  York,  the  only  difference  being  that 
there  they  operate  under  the  statute  of  New  York,  instead  of 
the  old  English  Statutes  of  Uses  and  Wills,  and  are  confined 
to  certain  objects.^" 

§  404.  Kinds  of  powers. —  Powers  of  appointment  may  be 
conferred  upon  persons  having  an  interest  or  estate  of  some 
kind  in  the  land,  or  they  may  be  given  to  persons  who  are 
otherwise  altogether  strangers  to  the  property.  In  the  latter 
case  they  are  called  collateral  or  naked  powers;  the  power  is 
not  attached  to  any  present  estate,  and  the  donee  possesses  the 
mere  right  to  exercise  the  power."  In  the  former  case  the 
power  is  either  appendant  or  in  gross,  according  to  its  relation 

»  1  Sugden  on  Pow.  (ed.  1850)  171,  242;  Co.  Lit.  271  b,  Butler's  note, 
231,  Sec.  3,  PI.  4;  Gilbert  on  Uses,  127  n;  4  Kent's  Com.  337;  4  Cruise 
Dig.  220;  2  Washburn  on  Real  Prop.  036,  037;  Doolittle  v.  Lewis,  7 
Johns.  Ch^  45;  Bradish  v.  Gibbs,  3  Johns.  Ch.  550. 

ION.  Y.  Rev.  Stat.  Art.  3,  Sees.  86-148;  Hotchkiss  v.  Elting,  36  Barb. 
38;  Weinstein  v.  Weber,  178  N.  Y.  94,  70  N.  E.  Rep.  115. 

iiTud.  Ld.  Cas,  286;  Williams  on  Real  Prop.  294;  1  Sugden  on  Pow. 
107;  2  Washburn  on  Real  Prop.  639;  Richardson  f.  Hunt,  59  Hun  027; 
Potter  V.  Couch,  141  U.  S.  296,  1  Rev.  St.  N.  Y.  (Edni.  ed.),  Pt.  2.  C.  1. 
Tit.  2,  Sees.  55,  59;  Robinson  v.  Adams,  80  Miss.  1098,  81  App.  Div.  20. 
71  N.  E.  Rep.  1139.  See  Coleman  v.  Cabaniss  (Ga.  1904),  48  S.  K. 
Rep.  927. 

591 


§  404  POWERS.  [part  II. 

to  the  estate,  to  which  it  is  attached.  Any  power  whose  execu- 
tion creates  an  estate,  which  issues,  partly  or  wholly,  out  of 
an  estate  vested  in  the  donee,  is  a  power  appendant.  Thus 
where  a  tenant  for  life  has  the  right  to  make  leases  in  pos- 
session, which  are  to  continue  until  their  natural  termination, 
independent  of  the  lessor 's  life  estate,  this  is  called  a  power  ap- 
pendant. The  lease  granted  takes  effect  immediately  in  dero- 
gation of  the  tenant 's  life-estate,  and  binds  the  remainder-man, 
if  it  does  not  expire  during  the  continuance  of  the  life  estate.^^ 
Bowers  in  gross  are  those  which  do  not  conflict  with  the  estate 
of  the  donee,  and  authorize  the  limitation  of  estates,  which 
take  effect  out  of  the  interest  or  estate  of  some  one  else.  Such 
would  be  a  power  given  to  a  life  tenant  to  dispose  of  the  re- 
mainder, to  raise  a  jointure  for  his  wife,  to  make  leases  com- 
mencing at  his  death.  The  exercise  of  these  powers  cannot  by 
any  possibility  affect  the  estates  to  which  they  are  attached.^' 
Powers  are  also  divided  into  general,  and  special  or  particular. 
If  the  donee  has  the  power  to  appoint  to  whom  he  pleases,  it  is 
a  general  power ;  and  if  he  can  appoint  to  only  certain  particu- 
lar persons,  it  is  a  special  or  particular  power.^*  Then  again  a 
general  power  may  be  for  the  benefit  of  the  donee,  or  one  in 
trust  for  certain  beneficiaries.^**  If  the  power  be  to  create  a 
new  estate,  it  is  called  a  power  of  appointment.^®     If  it  be 

12  Williams  on  Real  Prop.  310;  2  Washburn  on  Real  Prop.  6.39,  G40; 
Maundrell  v.  Maundrell,  10  Ves.  246;  Wilson  V.  Troup,  2  Cow.  236. 

13  1  Sugden  on  Pow.  114;  4  Cruise's  Dig.  220;  Gorin  v.  Gordon,  38 
Miss.  214;  Wilson  V.  Troup,  2  Cow.  236;  Tud.  Ld.  Cas.  293. 

1*  2  Washburn  on  Real  Prop.  641;  Co.  Lit.  271  b,  Butler's  note,  231,  PI. 
4,  See.  3;  Williams  on  Real  Prop.  309;  Wright  V.  Wright,  41  N.  J.  Eq. 
382. 

15  Tud.  Ld.  Cas.  294;  Williams  on  Real  Prop.  307,  308;  Chance  on 
Pow.,  Sec.  34;  Howell  v.  Tyler,  91  N.  C.  207. 

i«  "  The  power  of  appointment  given  by  the  will  of  B.  devising  prop- 
erty to  J.  for  life,  with  authority  to  dispose  of  it  by  will,  is  properly 
exercised  by  J.  devising  the  property  to  M.  for  life,  with  power  to  dis- 
pose of  it  by  will;  the  power  conferred  on  M.  by  J.  not  being  a  mere 
delegation  of  the  power  vested  in  J.  by  B.'s  will."  Mays  v.  Beech 
(Tenn.  1905),  86  S.  W.  Rep.  713. 
592 


CH.    XVI.]  POWERS.  §   405 

simply  to  destroy  an  estate  already  vested,  it  is  called  a  power 
of  revocation.  A  power  of  appointment  always  implies  a 
power  of  revocation,  but  as  a  rule  an  express  power  of  revoca- 
tion will  not  raise  by  implication  a  power  of  appointment.  A 
power  of  appointment  cannot  be  exercised  without  revoking  a 
previous  limitation ;  by  the  exercise  of  the  power  of  revocation, 
where  there  is  no  express  power  of  appointment,  the  land  re- 
verts to  the  grantor  and  his  heirs." 

§  405.  Suspension  and  destruction  of  powers. —  All  general 
powers,  given  for  the  benefit  of  the  donee,  may  be  released  by 
him  to  one  holding  the  freehold,  whether  in  possession,  re- 
mainder, or  reversion,  and  thus  destroyed.  And  this  too, 
whether  the  power  be  appendant,  in  gross,  or  collateral.  For, 
it  being  given  for  the  sole  benefit  of  the  donee,  if  he  releases 
it,  he  will  not  be  allowed  thereafter  to  exercise  it  in  derogation 
of  his  own  release.^*  But  a  special  power,  or  a  general  power 
in  trust  for  certain  beneficiaries,  cannot  be  extinguished  or 
released  by  an  act  of  the  donee  alone.  The  power  in  such 
cases  is  in  the  nature  of  a  trust,  and  the  beneficiaries  have 
rights  therein  which  are  beyond  the  power  of  the  donee  to  de- 
stroy." And  where  the  exercise  of  the  special  power  is  man- 
datory, thereby  imposing  upon  the  donee  a  peremptory  duty 
to  exercise  it ;  or  where  the  discretion,  if  any  is  given  the  donee 
as  to  its  exercise,  is  to  be  exerted  and  employed  at  some  future 
time,  the  donee  has  no  power  to  extinguish  or  release  it,  even 
though  the  persons  interested  in,  and  to  be  benefited  by  its  ex- 

17  4  Cruise's  Dig.  210,  220;  Sandf.  on  Uses  154;  Tud.  Ld.  Cas.  264;  4 
Kent's  Com.  415;  Wright  v.  Tallmadge,  15  N.  Y.  307;  Rieketts  v.  Louis- 
ville, etc.,  R.  R.  Co.  (Ky.),  15  S.  W.  Rep.  182. 

18 Tud.  Ld.  Cas.  294;  Edwards  V.  Slater,  Hard.  416;  Chance  on  Pow., 
Sec.  .3115;  1  Sugden  on  Pow.  112;  Williams  on  Real  Prop.  .'HO;  WoHt  r. 
Bernly,  1  Russ.  &  M.  431;  Grosvenor  r.  Bowen^  15  R.  I.  540;  Sponcor 
V.  Kimball   (Me.  1004).  98  Me.  409.  57  Atl.  Rep.' 703. 

"Co.  Lit.  237  a,  265  b;  1  Sugden  on  Pow.  117;  Doe  v.  Smyth,  6  B.  &. 
C.  172;  «.  c.  9  Dowl.  &  Ry.  136;  Townson  t".  Tickell,  3  B.  &  A.  31; 
Chance  on  Pow.,  Sec.  3105;  Graham  v.  Whitridge  (Md.  1004),  57  Atl. 
Rep.  009. 

88  593 


§  405  POWERS.  [part    II. 

ercise,  consent  to  release,  and  join  in  t'he  deed.^**  But  if  it  is 
within  the  discretion  of  the  donee  when  and  whether,  if  at  all, 
he  should  execute  the  power,  a  joint  deed  of  release  by  him- 
self and  the  beneficiaries  will  extinguish  the  power.-^  Where 
the  power  is  appendant,  the  conveyance  of  the  entire  estate  to 
which  the  power  is  annexed  will  destroy  the  power.  The 
power  can  only  be  exercised  in  derogation  of  the  estate,  and  the 
donee  will  not  be  permitted  to  defeat  his  own  grant  by  execut- 
ing tl^e  power.^  But  if  he  conveys  only  a  part  of  his  estate, 
leaving  a  reversion  in  him,  the  exercise  of  the  power  will  only 
be  suspended  or  postponed  to  the  estate  so  granted,  and  the 
estate  created  by  the  power  will  vest  upon  the  termination  of 
the  prior  demise.^^  The  power  may  be  exercised  at  any  time ; 
only  the  enjoyment  of  the  estate  thus  created  is  postponed.^* 
But  no  conveyance  of  the  estate  of  the  donee,  except  by  feoff- 
ment, will  cause  an  extinguishment  of  the  power  in  gross.     As 

20  2  Washburn  on  Real  Prop.  643;  Chance  on  Pow.,  Sec.  3121;  Will- 
iams on  Real  Prop.     See  Dave  v.  Johnson,  141  Mass.  287. 

21  Brown  &  Sterritt's  Appeal,  27  Pa.  St.  62 ;  Allison  v.  Wilson's  Exrs., 
13  Serg.  &  R.  330.     See  Hare  v.  Cong.  Soc.   (Vt.  1904),  57  Atl.  Rep.  964. 

22  Goodright  V.  Cator,  Dougl.  460;  Wilson  v.  Troup,  2  Cow.  195;  1 
Sugden  on  Pow.  113-115;  Parker  v.  White,  11  Ves.  Jr.  209;  Walniesloy 
V.  Jowett,  23  Eng.  L.  &  E.  353;  Jones  V.  Windwood,  4  Meas.  &  Wels. 
653;  Chance  on  Pow.  Sees.  3155,  3159;  Williams  on  Real  Prop.  310; 
Tud.  Ld.  Cas.  260,  290 ;  4  Cruise's  Dig.  157 ;  Bringloe  v.  Goodson,  4  Ring. 
N.  C.  726. 

23  Ren  V.  Bulkeley,  Dougl.  292;  Tyrrell  v.  Marsh,  3  Bing.  31;  Roper 
t?.  Halifax,  8  Taunt.  845;  Doe  v.  Scarborough,  3  Adolph.  &  Ell.  2;  4 
Cruise's  Dig.  221;  Goodright  v.  Cator,  Dougl.  477;  Tud.  Ld.  Cas.  287. 
See  Graham  v.  Whitridge  (Md.  1904),  57  Atl.  Rep.  609. 

24  1  Sugden  on  Pow.  114,  115,  citing  Bingloe  v.  Goodson,  4  Bing.  N.  C. 
726;  Anon,  Moore  612;  Bullock  v.  Thome,  Moore  615;  Ren  v.  Bulkeley, 
Dougl.  292;  Tud.  Ld.  Cas.  546;  Chance  on  Pow.,  Sec.  402.  Contra, 
Snape  v.  Turton,  Cro.  Car.  472 ;  Mordaunt  v.  Peterborough,  3  Keb.  305. 
But  if  the  power  appendant  enables  only  the  creation  of  estates  in  pos- 
session, as  where  it  is  a  power  to  make  leases  in  possession  and  not  in 
ftHuro,  the  exercise  of  the  power  is  altogether  suspended.  Bringloe  v. 
Goodson,  4  Bing.  N.  C.  726;  1  Sugden  on  Pow.  116. 


594 


CH.   XVI.]  ^  POWERS.  §  406 

a  rule  a  release  is  the  only  mode  of  extinguishing  this  kind  of 
power.-' 

§  406.  How  powers  may  be  created. —  Powers  may  be  cre- 
ated by  deed  or  by  will.  They  may  be  incorporated  in  the 
same  instrument  which  conveys  the  property,  or  they  may  be 
indorsed  thereon,  or  even  granted  by  a  separate  instrument. 
If  the  instrument  be  a  deed  operating  by  transmutation  of 
possession,  the  conveyance  of  the  legal  estate  is  necessary  for 
the  creation  of  the  power.  In  the  case  of  every  instru- 
ment of  conveyance,  there  can  be  a  valid  grant  of  power  with- 
out a  transfer  of  the  legal  estate.^"  No  particular  words  or 
phrases  are  required.  Any  words  which  clearly  indicate  the 
intention  of  the  donor  to  create  a  power,  and  which  define 
its  scope  with  a  reasonable  degree  of  certainty,  will  be  suffi- 
cient. This  rule  governs  all  classes  of  powers,  whether  oper- 
ating under  the  Statute  of  Uses  or  the  Statute  of  Wills. -^ 
Where  the  deed  which  creates  the  power,  operates  by  transmu- 
tation of  possession,  and  a  seisin  is  therefore  raised  by  the 
deed  to  support  the  use,  which  is  to  be  created  under  the  power,, 
the  legal  estate  so  conveyed  must  be  as  extensive  as  the  use  to> 

25  Chance  on  Pow.,  Sec.  3172;  Edwards  v.  Slater,  Hard.  416;  Savile  v. 
Blacket,  1  P.  Wms.  777;  2  Washburn  on  Real  Prop.  643;  1  Sugden  on 
Pow.  112.     See  Weinstein  v.  Webber,  178  N.  Y.  94,  70  N.  E.  Rep.  113. 

2GOuton  r.  Weeks,  2  Keb.  809;  Fitz  v.  Smallbrook,  1  Keb.  134;  1  Sug- 
den on  Pow.  217,  228-231;  Gilbert  on  Uses  46;  Williams  on  Pers.  Prop.. 
246';  Co.  Lit.  271  b,  III,  Sec.  5,  Butler's  note;  Powell  on  Devises;  t. 
Sandf.  on  Uses  195;  Andrews'  Case,  Moore  107;  Fearne  Cent.  Rem. 
128;  Rash  v.  Lewis,  21  Pa.  St.  72;  3  Kent's  Com.  319;  Maundrell  f. 
Maundrell,  10  Ves.  255;  6  Cruise's  Dig.  490.  "A  naked  power  of  dis- 
position under  a  will  may  exist  exclusive  of  any  beneficial  interest  in 
the  donee."  Rehearing  (1903),  69  N.  E.  Rep.  250,  denied,  Hammond 
r.  Croxton  (Ind.  1904),  70  N.  E.  Rep.  368. 

27  2  Washburn  on  Real  Prop,  650;  1  Sugden  on  Pow.  118;  McCord  v. 
McCord,  19  Ga.  602;  Choofstall  v.  Powell,  1  Grant's  Cas.  19;  Bradley 
V.  Westoott.  13  Ves.  445;  Smith  V.  Bell,  6  Pet.  68;  Harris  v.  Knapp, 
21  Pick.  416;  Brant  v.  Va.  Coal  Iron  Co.,  93  U.  S.  326;  Best  v.  Best 
(Ky.),  11  S.  W.  Rep.  600;  Goudie  v.  Johnston,  109  Ind.  427;  Logue  v. 
Bateman,  43  N.  J.  Eq.  434;  Fritsch  v.  Klausing  (Ky,),  13  S.  W.  Rep. 

595 


§  407  POWERS.  '  [part  II. 

be  thus  created.  The  appointee  under  the  power  cannot  take 
a  larger  estate  than  that  granted  to  the  feoffee  to  uses.  This 
is  only  a  special  application  of  a  general  rule  governing  all 
classes  of  uses,^*  . 

■  V 

§  407.  Powers  distinguished  from  estates. —  As  a  conse- 
quence of  this  liberal  rule  concerning  words  necessary  to  create 
a  power,  it  is  very  often  difficult  to  determine  whether  the  in- 
tention of  a  testator  was  to  give  an  estate  in  the  land,  or  only 
a  naked  power.  Since  technical  words  are  used  to  create  an 
estate  by  deed,  it  rarely  happens  that  doubt  will  arise  in  the 
construction  of  a  power  by  deed.  The  question,  therefore,  pos- 
sesses importance  only  in  relation  to  wills.^'*  The  intention  of 
the  testator  will  always  govern  whenever  it  can  be  clearly  as- 
certained, even  though  the  literal  meaning  of  the  words  used 
would  indicate  a  different  conclusion.^"  The  most  numerous 
cases  have  arisen  under  devises,  in  which  executors  are  di- 
rected to  sell  lands  for  the  purpose  of  distribution.  If  the  ex- 
ecutors are  intended  to  have  possession,  until  sale  under  the 
power,  then  it  is,  of  course,  a  power  coupled  with  an  interest, 
and  the  estate  does  not  descend  for  the  time  being  to  the 
donor's  heirs.^^     Succinctly  stated,  if  the  devise  be  that  "the 

241;  Watson  v.  Sutro  (Cal.),  24  Pac.  Rep.  172;  Woerz  V.  Eademacher, 
120  N.  Y.  62;  In  re  Carr  (R.  I.),  19  Atl.  Rep.  145;  Brown  v.  Critten- 
den (Ky.),  1  S.  W.  Rep.  421;  Cooghan  V.  Ockershausen,  55  N.  Y.  Super. 
Ct.  286;  Ames  V.  Ames,  15  R.  I.  12;  Cherry  V.  Greene,  115  111.  591; 
Wright  V.  Wright,  41  N.  J.  Eq.  382. 

28  Co.  Lit.  271  b,  Butler's  note  231;  Cleveland  v.  Hallett,  6  Cush.  403; 
1  Sugden  on  Pow.  231. 

28  4  Kent's  Com.  319;  Sharpsteen  v.  Tillon,  3  Cow.  651;  Peter  V. 
Beverley,  10  Pet.  532;  Jackson  V.  Jansen,  6  Johns.  73;  Jackson  V. 
Schauber,  7  Cow.  187;  Walker  v.  Quigg,  6  Watts  87;  Ladd  v.  Ladd,  8 
How.  10;  Richardson  V.  Hunt,  59  Hunt  627;  Potter  V.  Couch,  141  U.  S. 
296;  Bean  V.  Com.  (Mass.  1904),  71  N.  E.  Rep.  784. 

30  Bloome  v.  Waldron,  3  Hill  361;  see  cases  cited  in  preceding  note; 
Franklin  v.  Osgood,  14  Johns.  527;  De  Vaughn  v.  McLeroy,  82  Ga.  687; 
In  re  Rising,  73  Law  Ch.  455  (1904),  1  Ch.  533,  90  Law  T.  504. 

31  Gray  v.  Lynch,  8  Gill  403;  Hartley  v.  Minor's  App.  53  Pa.  212; 
Clarey  v.  Prayer,  8  Gill  &  J.  403 ;  4  Kent's  Com.  320. 

5C6 


CH.  XVI.]  POWERS.  §  408 

executor  shall  sell,"  or  that  "the  land  shall  be  sold,"  only  a 
naked  power  is  granted.  But  a  devise  to  the  executor  to  sell, 
or  words  of  similar  import,  will  vest  the  legal  title  in  him ;  it 
will  be  a  power  coupled  with  an  interest.'^  All  doubt  is,  of 
course,  removed  where  the  will  makes  some  other  disposition 
of  the  legal  estate.'^  In  New  York,  by  statute,  the  executor  in 
all  such  cases  takes  only  a  naked  power,  unless  some  duty  is 
imposed  upon  him  in  regard  to  the  management  of  the  prop- 
erty, which  would  require  its  possession,'* 

§  408.  Power  enlarging  the  interest,  with  which  it  is  coup- 
led.—  If  the  power  is  general  and  coupled  with  an  interest, 
the  duration  of  which  is  not  clearly  defined,  as  where  there  is 
a  devise  of  lands  generally,  with  full  power  to  dispose  of  them 
by  deed  or  by  will,  the  devise  will  be  construed  to  be  that  of  an 
estate  in  fee,  and  not  simply  a  life  estate  with  a  general  power 
in  gross  attached  thereto.  But  if  the  power  is  special,  or  a 
particular  estate  is  expressly  given  with  a  general  power  of 
disposal,  the  power  will  not  enlarge  the  estate,  and  the  tes- 

32  Yates  V.  Crompton,  8  P.  Wms.  308;  Lancaster  v.  Thornton,  2  Burr 
1027;  1  Williams  on  Ex.  540;  4  Kent's  Com.  326;  1  Sugden  on  Pow, 
189-194;  Jackson  v.  Shauber,  7  Cow.  18;  Co.  Lit.  113  a,  Hargrave's 
note  2;  Greenough  v.  Wells,  10  Cush.  571;  Gordon  t'.  Overton,  8  Yerg. 
121;  Warfield  v.  English  (Ky.),  11  S.  W.  Rep.  662;  Herberts  v. 
Herberts'  Exrs.,  85  Ky.  134 ;  Traphagen  v.  Levy,  45  N.  J.  Eq.  448 ;  Per- 
kins V.  Presnell,  100  N.  C.  220;  Naar  v.  Naar,  41  N.  J.  Eq.  88;  Spencer 
V.  Kimball,  98  Me.  499,  57  Atl.  Rep.  793. 

33  Den  V.  Aweling,  1  Dutch.  449;  Hemingway  V.  Hemingway,  22  Conn. 
462;  Peter  v.  Beverley,  10  Pet.  532;  Ladd  v.  Ladd,  8  How.  10;  Inglis  ». 
McCook  (N.  J.  Ch.  1904),  59  Atl.  Rep.  630. 

34  N.  Y.  Rev.  Stat.,  Art.  2,  Sec.  68 ;  Aldrich  v.  Green,  1  N.  Y.  S.  549. 
In  Pennsylvania  a  statute  provides  that  in  all  such  cases,  whatever 
may  be  the  phraseology  used,  the  executor  takes  the  power  coupled  with 
the  estate.  Shippen'a  Heirs  v.  Clapp,  29  Pa.  St.  265.  "Where  a  will 
devised  all  testator's  realty  to  his  wife  for  life,  with  power  to  devise, 
sell,  and  mortgage  the  estate  in  fee,  and  convert  the  proceeds  to  her 
own  use,  etc.,  the  power  conferred  on  the  wife  was  absolute,  witliin  Rev. 
St.  1898,  Sec.  2112,  defining  an  absolute  power  as  one  by  means  of 
which  the  grantee  is  able  in  his  lifetime  to  dispose  of  the  estate  for  his 
own  benefit."     Auer  v.  Brown  (Wis.  1904),  98  N.  W.  Rep,  906. 

597 


ji  4(iS  powKKs.  [part  n. 

tutor's  heirs  will  take  as  reversioners,  if  the  power  is  not  exer- 
cised." But  this  is  not  an  absolutely  invariable  rule.  If, 
from  the  whole  will  it  appears  to  have  been  the  testator's  inten- 
tion to  give  a  fee  simple  estate,  the  estate  will  be  enlarged  by 

35  1  Sugden  on  Pow.  179,  180;  Flintham's  App.,  11  Serg.  &  R.  23,  24; 
Jackson  v.  Robbins,  16  Johns.  537;  Burleigh  v.  Clough,  52  N.  H.  272; 
Herric'k  v.  Babcock,  12  Johns.  380;  Reinclers  r.  Koppelman,  G8  Mo.  482, 
.30  Am.  Rep.  482;  Green  v.  Sutton,  50  Mo.  190;  Urich's  App.,  86  Pa.  St. 
386,  27  Am.  Rep.  707;  Page  V.  Roper,  21  Eng.  L.  &  E.  499;  Crozier  v. 
Bray,  120  N.  Y.  366;  Glover  V.  Reid  (Mich.),  45  N.  W.  Rep.  91;  Jen- 
kins V.  Compton  (Ind.),  23  N.  E.  Rep.  1091;  Cashman's  Estate,  28  111. 
App.  346;  Kibler  v.  Huver,  10  N.  Y.  S.  Rep.  375;  Hood  v.  Haden,  82 
Va.  588;  Lininger's  Appeal,  110  Pa.  St.  398;  Douglass  v.  Sharp,  52  Ark. 
113;  Rood  V.  Watson,  54  Hun  85;  Lewis  V.  Pitman  (Mo),  14  S.  W.  Rep. 
52;  Sanborn  v.  Sanborn,  62  N.  H.  631;  Miller's  Admr.  v.  Potterfield 
(Va.),  11  S.  E.  Rep.  486;  Wittemore  v.  Russell,  80  Me.  297;  Glover  v. 
Stillson  (Conn.),  15  Atl.  Rep.  752;  Gray  v.  Missionary  Society,  2  N.  Y. 
Sup.  Rep.  878;  Forsythe  v.  Forsythe,  108  Pa.  St.  129;  Cresap  i-.  Cre- 
say,  34  W.  Va.  310;  DuU'a  Estate,  137  Pa.  St.  112;  Holsen  v.  Kockhouse, 
83  Ky.  233;  Peckham  V.  Lego,  57  Conn.  553;  Gaven  V.  Aller,  100  Mo, 
293;  Graves  V.  Trueblood,  96  N.  C.  495.  See  Best  r.  Best  (Ky.),  11 
S.  W.  Rep.  600;  In  re  Cager's  Will,  111  N.  Y.  343;  Richardson  r.  Rich- 
ardson, 80  Me.  585;  McConnell  v.  Wilcox  (Ky.),  12  S.  W.  Rep.  469;  In 
re  Foster's  Will,  76  Iowa  36.  "  Where  a  power  to  dispose  of  a  life  es- 
tate is  given  by  the  will  creating  it,  such  power  is  only  coextensive 
with  the  interest  of  the  donee,  unless  the  contrary  appears."  Dickinson 
r.  Griggsville  Nat.  Bank,  111  111.  App.  183;  In  re  L.  Hammeden.  138 
Fed.  Rep.  606.  That  a  life  tenant,  with  an  absolute  power  of  disposition 
is  held  to  have  the  life  estate  enlarged  by  the  grant  of  a  general  power  of 
disposal,  so  that  the  fee  may  be  conveyed,  is  held  in  many  cases  and 
the  reason  for  the  recognition  of  such  an  enlargement  of  the  estate  is 
tersely  stated  by  the  North  Carolina  court,  in  a  leading  case,  as  fol- 
lows: "This  is  a  power  appurtenant  to  her  life  estate;  and  the 
estate  which  may  be  created  by  its  exercise  will  take  effect  out  of  the 
life  estate  given  to  her,  as  well  as  out  of  the  remainder.  A  power  of 
this  description  is  construed  more  favorably  than  a  naked  power  given 
to  a  stranger,  or  a  power  appendant,  because,  as  its  exercise  will  be 
in  derogation  of  the  estate  of  the  person  to  whom  it  is  given,  it  is  less 
apt  to  be  resorted  to  injudiciously."  Troy  v.  Troy,  60  N.  C.  623.  See- 
also,  Underwood  v.  Cave  (Mo.),  75  S.  W.  Rep.  455;  Wright  v. 
Westbrook,  121  N,  C.  156,  28  S.  E.  Rep.  299;  White  v.  White,  21 
Vt.  250;  Chew  v.  Keller,  100  Mo.  362,  13  S.  W.  Rep.  395;  Burford 
V.  Aldridge,  165  Mo.  419,  63  S.  W.  Rep.  109;  Cummings  v.  Shaw.  108 
598 


CH.    XVI.]  POWERS.  §  409 

the  power,  notwithstanding  the  devisee's  estate  has  been  ex- 
pressly limited  for  life.^®  And  where  the  power  annexed  en- 
larges the  estate  into  a  fee,  it  will,  if  not  expressly  qualified, 
render  any  subsequent  limitation  void.^^  In  every  case  the 
limitation  of  the  power  of  disposal  must  be  clear,  especially  in 
a  will.  For  where  the  limitation  of  the  estate  is  expressly  for 
life,  the  power  of  disposal  may  be  limited  in  its  operation  to 
the  life  estate.^' 

§  409.  Who  can  be  donees. —  Any  one,  who  is  capable  of 
holding  and  disposing  of  his  own  property,  can  be  the  donee 
of  the  power.     It  seems  also  that  a  purely  collateral  power 

Mass.  159;  Parks  V.  Robinson  (N.  C),  50  S.  E.  Rep.  649;  CliflFord  V. 
Choate,  100  Mass.  340.  This  rule,  however,  is  not  followed  by  the 
Federal  Supreme  Court,  which  consistently  adheres  to  the  doctrine  that 
a  general  power  of  disposal,  by  a  life  tenant,  does  not  enlarge  the  estate 
into  a  fee,  or  authorize  the  conveyance  of  the  fee,  as  such  a  power 
would  be  inconsistent  with  the  grant  of  an  estate  for  life.  Smith  r. 
Bell,  6  Pet.  08,  8  L.  Ed.  322;  Brant  V.  Coal  Co.,  93  U.  S.  326,  23  L.  Ed, 
927;  Giles  V.  Little,  104  U.  S.  291,  26  L.  Ed.  745. 

seGoodtitle  v.  Otway,  2  VVils.  6;  Bradford  v.  Street,  11  Ves.  135;  Doe 
V.  Lewis,  3  Adol.  &  Ell.  123;  Wilson  v.  Gaines,  9  Rich.  Eq.  420;  Andrew 
r.  Brumfield,  32  Miss,  107;  Denson  V.  Mitcjjell,  26  Ala.  360;  Burke  v. 
Stiles  (N.  H.),  18  Atl.  Rep.  657;  Walker  v.  Pritchard,  121  III.  221; 
Lienan  V.  Summerfield,  41  N.  J.  Eq.  381;  Russell  f.  Eubanks,  84  Mo. 
82;  Morford  V.  Dieffenbacker,  54  Mich,  593;  Bowsn's  Admr.  v.  Bowen's 
Admr,  (Va.),  12  S.  E.  Rep.  885.  "A  power  of  .sale  given  to  the 
devisee  of  a  life  estate  becomes  inoperative  as  a  power  from  the  testatrix, 
where  he  is  also  the  devisee  of  the  remainder,  and  a  mortgage  given 
by  him  in  his  individual  right  is  valid."  Spencer  v.  Kimball  (Me, 
1904),  57  Atl.  Rep.  793,  98  Me.  499. 

37  Jones  V.  Bacon,  68  Me.  34 ;  s.  c.  28  Am.  Rep.  1 ;  McKenzie's  App., 
41  Conn.  607,  19  Am.  Rep.  525;  Rona  v.  Meier,  47  Iowa  607,  29  Am. 
Rep.  403.  See  ante,  Sec.  298.  Under  Wis,  Rev.  St,  (1898),  Sec.  2108, 
an  absolute  power  of  disposition,  not  accompanied  with  a  trust,  changes 
the  estate  of  the  donee  into  a  fee,  as  to  creditors  and  purchasers,  sub- 
ject, to  future  estates  limited  thereon.  Auer  v.  Brown  (Wis.  1904), 
98  N.  W,  Rep.  966. 

38  Patty  17,  Goolsby,  51  Ark.  61;  Douglass  v.  Sharp  (Ark.),  12  S.  W. 
Rep.  202;  Cox  v.  Sims,  125  Pa.  St.  522;  Fernbacher  v.  Fernbacher,  4 
Dem,  227;  «.  o.  17  Abb.  N.  C.  339;  Dickinson  f.  Bank,  111  111,  App.  183. 

599 


§  410  POWERS.  [part    II, 

may  be  exercised  by  an  infant;  but  this  is  doubtful,  and  it  is 
to  be  supposed  that,  where  the  power  is  to  be  executed  by 
means  of  an,  instrument  which  an  infant  is  not  capable  of  mak- 
ing, he  will  not  be  able  to  execute  the  power  until  he  becomes 
of  age.^°  But  a  married  woman  can  exercise  a  power  as  freely 
as  if  she  were  a  feme  sole.  This  is  a  common  mode  of  enabling 
a  married  woman  to  dispose  of  the  property  secured  to  her 
by  marriage  settlement.*" 

§  410.  By  whom  the  power  may  be  executed. —  As  a  general 
proposition,  only  those  who  are  named  as  the  donees  in  the  in-, 
strument  creating  the  power  can  execute  the  power.  In  testa- 
mentary powers,  the  executor  will  be  impliedly  vested  with 
the  power,  if  no  donee  is  specially  named  or  described.*^  The 
donee  cannot  assign  it  unless  he  is  expressly  authorized,  nor 
can  his  personal  representatives  execute  it  unless  expressly 
named."**  This,  however,  is  not  true  of  powers  in  trust,  or 
powers  coupled  with  an  interest,  the  execution  of  which  does 
not  require  the  exercise  of  a  special  discretion  reposed  in  the 
particular  donee.  In  the  case  of  a  power  in  trust,  the  court 
will  not  allow  any  accident  to  or  neglect  of  the  trustee — not 
even  his  death — to  defeat  the  trust  power.  It  will  either  com- 
pel the  trustee  to  execute  it  or  appoint  a  new  trustee  in  his 
stead,  who  will  have  the  same  powers.*^  But  the  trustee  can- 
not delegate  his  power  without  authority.**     It  would,  how- 

30  4  Kent's  Com.  324,  325;  1  Sugden  on  Pow.  181-211;  2  Washburn  on 
Real  Prop.  652. 

40  1  Sugden  on  Pow.  182;  4  Kent's  Com.  325;  Doe  f.  Eyre,  3  C.  B. 
578;  s.  c.  5  C.  B.  741;  Ladd  V.  Ladd,  8  How.  27;  Rush  v.  Lewis,  21  Pa. 
St.  72;  Doe  V.  Vincent,  1  Houst.  416-427.     See  ante.  Sec.  348,  note. 

*i  Officer  V.  Board  of  Home  Missions,  47  Hun  372. 

«  1  Sugden  on  Pow.  214,  215;  4  Cruise's  Dig.  211;  Cole  v.  Wade,  16 
Ves.  27;  Re  Bierbaum,  40  Hun  504;  Reeves  v.  Tappan,  21  S.  C.  1. 

*s  2  Sugden  on  Pow.  158 ;  Greenough  v.  Wells ;  Hunt  v.  Rousmanier,  8 
Wheat.  207;  Leeds  v.  Wakefield,  10  Gray  517;  Doe  v.  Ladd,  77  Ala.  223. 

« Story's  Eq.  Jur.  1062;  Franklin  V.  Osgood,  14  Johns.  562,  563  j 
Peter  v.  Beverley,  10  Pet.  565;  Cole  v.  Wade,  16  Vcs.  28  n ;  1  Sugden  on 
Pow.  214-216;  Lewin  on  Tr.  228.  "Where  a  power  is  given  in  a  will 
600 


CH.  xvl]  powers.  §  410 

ever,  not  be  a  delegation  of  power  for  the  donee  to  direct  his 
agents  to  do  the  subordinate  ministerial  acts.*°  A  power  coup- 
led with  an  interest  will  ordinarily,  not  only  survive  the  donee, 
but  can  be  exercised  by  him,  to  whom  the  interest  has  been  as- 
signed, provided  always  the  power  is  not  expressly  personal 
to  the  donee.***  Where  the  power  is  limited  to  several  as  a 
class,  such  as  executors,  trustees,  or  sons,  although  all  must 
join  in  the  execution,  if  alive,  the  power  will  survive  the  death 
of  one  or  more ;  but  there  must  be  at  least  two  surviving,  in 
order  to  comply  with  the  plural  description  of  the  donees.*^ 
In  the  case  of  executors,  the  rule  is  so  far  relaxed  that  a  single 
survivor  may  execute  the  power;  and  where  the  power  is  coup- 
led with  an  interest,  the  power  may  be  exercised  by  those  who 
qualify  as  executors ;  it  is  not  necessary  for  the  others  to  join 
in  the  execution  of  the  power.**  Its  exercise  does  not,  how- 
ever, depend  upon  their  qualification  as  executors;  they  may 
insist  upon  their  right  to  join  in  the  execution,  even  though 
they  or  any  of  them  have  failed  to  qualify  or  have  resigned 

or  deed  by  words  that  clearly  indicate  that  the  donor  placed  special 
confidence  in  the  donee,  so  that  the  element  of  personal  choice  is  found, 
such  power  must  be  exercised  by  the  person  or  persons  thus  selected,  and 
ordinarily  is  not  transmissible."  Sells  v.  Delgado  (Mass.  1904),  70 
N.  E.  Rep.  1036. 

<5Toder  v.  Herring  (Miss.),  6  So.  Rep.  840. 

♦8  Hunt  V.  Rousmanier,  8  Wheat.  203 ;  Wilson  v.  Troup,  2  Cow.  236 ; 
Bergen  v.  Bennett,  1  Caines'  Cas.  15;  Hartley's  v.  Minor's  App.,  53  Pa. 
St.  212;  Jencks  r.  Alexander,  11  Paige  Ch.  G19;  Doolittle  r.  Lewis,  7 
Johns.  Ch.  45.  "  A  testamentary  appointment  in  discharge  of  a  moral 
or  legal  obligation  does  not  lapse  merely  by  reason  of  the  appointee 
predeceasing  the  testator,  but  extends  to  the  legal  personal  representa- 
tive of  the  appointee."  Stevens  v.  King,  73  Law  J.  Ch.  535  (1904),  2 
Ch.  30,  90  Law  T.  665,  52  Wkly  Rep.  443. 

*7  1  Sugden  on  Pow.  144,  146;  Story's  Eq.  Jur.,  Sees.  1061,  1062,  n;  4 
Greenl.  Cruise  Dig.  211  n;  Co.  Lit.  113,  Hargrave's  note  140;  Franklin 
r.  Osgood,  14  Johns.  553;  Peter  v.  Beverley,  10  Pet.  564;  Montefiore  v. 
Browne,  7  H.  L.  Cas.  261. 

48  4  Kent's  Com,  220;  Bergen  v.  Bennett,  1  Caines'  Caa.  16;  1  Sugden 
on  Pow.  144,  146;  Peter  v.  Beverley,  10  Pet.  564;  Tainter  r.  Clark,  13 
Mete.  220;  Naunborf  v.  Sehunlann,  41  N.  J.  Eq.  14;  Vernor  v.  Coville, 
44  Mich.  281;  In  re  Bailey,  15  R.  L  60. 

601 


§  411  POWERS.  [part  II. 

their  executorships.**  So,  also,  may  the  power  be  exercised  by 
the  executors,  after  they  have  been  discharged  from  the  ad- 
ministration of  the  estate."^"  But  this  is  the  case  only  when  the 
power  is  given  to  the  executors  nominatim.  If  the  power  is 
given  virtute  officii  then  the  power  can  only  be  exercised  by  the 
acting  executors."^^  And  although  by  the  law  the  executor,  ap- 
pointed by  will  in  one  State,  may  not  be  able  to  exercise  the 
ordinary  powers  of  an  executor  over  lands  situated  in  another 
State,  yet  he  may  execute  a  testamentary  power  of  sale  when 
directed  so  to  do.'*^  Where  the  power  is  given  to  several  donees 
nominatim,  it  indicates  the  repose  of  a  personal  discretion  in 
each,  and  the  power  will  not  survive  the  death  of  one  of  them."*^ 
So,  also,  if  a  power  is  given  one  or  more  executors  by  name, 
it  cannot  be  exercised  by  an  administrator  with  the  will  an- 
nexed."* But  it  is  otherwise,  if  the  power  is  given  to  the  ex- 
ecutor as  such.""* 

§  411.  Mode  of  execution. —  In  the  execution  of  the  power 
the  donee  must  observe  strictly  all  the  conditions  and  re- 
strictions imposed  by  the  donor,  both  as  to  the  manner  and  the 
time  of  execution.  The  donor  has  the  right  to  impose  what- 
ever conditions  he  pleases,  and  however  unessential  they  may 
appear  to  be,  a  neglect  of  them  would  make  the  execution  de- 
fective.   They  must  be  strictly  complied  with.^®    Thus  a  power 

49Tainter  v.  Clarke,  13  Mete.  220;  Clark  v.  Tainter,  7  Cush.  567; 
Treadwell  v.  Cordis,  5  Gray  341;  Dunning  v.  Ocean  Nat.  Bank,  6  Lans. 
(N.  Y. )  296.     See  cases  cited  in  note  47  supra. 

eoSeholl  v.  Olmstead,  84  Ga.  603,  11  S.  E.  Rep.  541. 

01  Yates  v.  Compton,  2  P.  Wms.  309 ;  Ross  v.  Barclay ;  Water  v.  Mar- 
gerson,  10  P.  F.  S.   (Pa.)   39;  Evans  v.  Chew,  21  P.  F.  S.  47. 

62  Doolittle  V.  Lewis,  7  Johns.  Ch.  45-48.  But  see  Hutchins  v.  State 
Bank,  12  Mete.  425. 

53  Co.  Lit.  113,  Hargrave's  note  146;  4  Greenl.  Cruise  Dig.  211  n; 
Story's  Eq.  Jur.,  Sees.  1061,  1062;  1  Sugden  on  Pow.  144-146;  Peter  V. 
Beverley,  10  Pet.  563;  Franklin  v.  Osgood,  14  Johns.  553;  Tainter  v. 
Clarke,  13  Mete.  220 ;  Cole  v.  Wade,  16  Ves.  27. 

84 /fe  Bierbaum,  40  Hun  500;  Compton  v.  McMahan,  19  Mo.  App.  490. 

B»  Griggs  V.  Voghte  (N.  J.),  19  Atl.  Rep.  867. 

68  Sugden  on  Pow,  221,  250,  278;  Langford  v.  Eyre,  1  P.  Wms.  740; 
602 


CH.    XVI.]  POWERS.  §  412 

to  appoint  by  deed  cannot  be  exercised  by  will ;  but  if  there  is 
no  restriction  as  to  the  tyind  of  instrument,  it  may  be  either  by 
deed  or  by  will.^^  So  must  all  other  special  directions  be  ob- 
served, and  conditions  performed.^*  If  the  power  be  to  sell, 
the  property  can  be  sold  only  in  the  manner  prescribed  by  the 
donor,  and  a  power  of  sale  will  not  ordinarily  imply  a  power 
to  mortgage.*^®  And  a  power  to  rent  or  lease  does  not  include 
the  power  to  sell  absolutely.'^''  It  is  customary  for  the  donee's 
instrument  of  conveyance  to  contain  a  recital  of  the  power  un- 
der which  he  acts,  but  this  recital  is  not  competent  evidence 
of  the  existence  of  the  power,  and  if  it  is  questioned  it  must 
be  established  by  other  testimony."^ 

§  412.  Who  may  be  appointees. —  If  it  be  a  general  power, 
any  one  whom  the  donee  selects  may  take  under  the  power.  A 
wife  may  appoint  the  estate  to  her  husband,  and  so  may  the 
husband   to    his   wife.**-     Likewise    the    donee    may   appoint 

Habergham  v.  Vincent,  2  Ves.  231 ;  Wright  v.  Wakeford,  17  Ves.  454 ; 
Wright  V.  Barlow,  3  Maule  &  S.  512;  Ives  v.  Davenport,  3  Hill  373; 
Williams  on  Real  Prop.  295.  "  An  execution  of  a  power  under  a  will, 
which  is  contrary  to  the  limitation  contained  therein,  is  void."  Ketchin 
V,  Rion   (S.  C.  1904),  47  S.  E.  Rep.  376. 

57  Todd  V.  Sawyer  (Mass.),  17  N.  E.  Rep.  527.  "A  devise  of  testa- 
tor's property  to  his  wife,  to  will  to  his  children  '  as  she  thinks 
proper,'  vests  in  the  wife  a  discretion  in  the  exercise  of  the  power  con- 
ferred, which  includes  the  right  of  unequal  distribution."  AUder  v. 
Jones  (Md.  1903),  56  Atl.  Rep.  487. 

58Ladd  V.  Ladd,  8  How.  30-40;  Austin  v.  Oakes,  117  N.  Y.  577;  Rose 
V.  Hatch,  55  Hun  457;  Jennert  v.  Houser,  4  Ohio  C.  C.  353;  Valentine 
V.  Wyson  (Ind.),  23  N.  E.  Rep.  1076. 

88  1  Sugden  on  Pow.  513;  4  Kent's  Com.  331;  Bloomer  v.  Waldron,  3 
Hill  361;  Leavitt  f.  Pell,  25  N.  Y.  474;  Ives  v.  Davenport,  3  Hill  373; 
Price  V.  Courtney,  87  Mo.  387,  56  Am.  Rep.  453. 

60  Roe  17.  Vingut,  117  N.  Y.  204. 

«i  Her.shy  v.  Berman,  45  Ark.  309.  "  If  a  deed  can  have  no  efficacy  ex- 
cept by  reference  to  a  power,  and  the  deed  has  been  executed  substan- 
tially as  provided  in  the  instrument  creating  the  power,  the  estate  will 
pass,  although  the  power  is  not  referred  to  in  the  deed."  Kirkman  t'. 
Wadsworth   (N.  C.  1905),  49  S.  E.  Rep.  962. 

•2  Sugden  on  Pow.  182 ;  4  Kent's  Com.  325 ;  Doe  v.  Eyre,  3  C.  B.  578 ; 

603 


§  413  POWERS.  [part  II. 

himself."'  And  if  the  donee  appoints  to  A.  to  the  use  of  B. 
the  Statute  of  Uses  will  execute  the  use  in  A.,  leaving  the  use 
in  B.  unexecuted,  it  being  a  use  upon  a  use.®*  But  this  rule 
would  not  apply  to  powers  which  operated  under  the  Statute 
of  Wills.  If  it  be  a  special  power,  it  can  be  exercised  only  in 
favor  of  the  special  objects  named.  Thus  a  power  of  appoint- 
ment to  children  will  not  support  an  appointment  to  grand- 
children, unless  in  some  unusual  cases,  strongly  impregnated 
with  circumstances,  such  as  the  non-existence  of  children  at 
the  time  when  the  power  was  created,  and  the  impossibility  of 
other  children  being  subsequently  born,  which  clearly  show  an 
intention  to  refer  to  grandchildren  under  the  name  of  chil- 
dren.®'^ But  the  term  issue  is  generally  capable  of  embracing 
all  descendants  of  every  generation."® 

§  413.  Execution  by  implication. —  In  order  to  insure  a 
valid  execution,  the  power  should  be  expressly  referred  to  in 
the  instrument  of  execution ;  but  this  is  not  necessary  if  it  ap- 
pears in  any  way,  upon  the  face  of  the  instrument,  or  from 
the  facts  of  the  case,  to  have  been  the  intention  of  the  donee 
to  exercise  the  power.®^  And  the  courts  have  of  late  years  so 
far  relaxed  the  rule  as  to  construe  the  instrument  to  be,  by  nec- 
essary intendment,  a  good  execution  of  the  power,  if  it  cannot 
operate  in  any  other  way,  notwithstanding  the  deed  or  will 
purports  to  dispose  only  of  the  individual  property  of  the 

8.  c.  5  C.  B.  741;  Ladd  v.  Ladd,  8  How.  27;  Bradish  v.  Gibbs,  3  Johns. 
Ch.  523 ;  2  Sugden  on  Pow.  24. 

83  2  Washburn  on  Real  Prop.  660 ;  Williams  on  Real  Prop.  295,  n.  1. 

64  1  Sugden  on  Pow.  229 ;  2  Prest.  Abst.  248 ;  2  Washburn  on  Real 
Prop.  613. 

86  2  Sugden  on  Pow.  253;  4  Kent's  Com.  345;  Tud.  Ld.  Cas.  306; 
Wythe  V.  Thurlston,  Ambl.  555;  Horwitz  v.  Norris,  49  Pa.  St.  211.  See 
Allder  V.  Jones  (Md.  1903),  56  Atl.  Rep.  487;  Biggins  v.  Lambert,  203 
111.  625,  73  N.  E.  Rep.  371. 

86  Wythe  V.  Thurlston,  Ambl.  555;  Freeman  v.  Parsley,  8  Ves.  421; 
Drake  v.  Drake,  56  Hun  390. 

87  1  Sugden  on  Pow.  232 ;  4  Kent's  Com.  334 ;  Story's  Eq.  Jur.,  S«e. 
1062  a. 

604 


CH.   XVI.]  POWERS.  §  414 

donee."*  A  specific  reference  to  the  property  subject  to  the 
power  will  be  sufficient  in  the  case  of  a  collateral  or  naked 
power ;  but  where  the  power  is  appendant  or  in  gross,  if  there 
be  no  express  reference  to  the  power,  only  the  legal  estate,  to 
which  it  is  attached,  will  pass.  The  capacity  of  the  instrument 
to  operate  upon  the  estate  of  the  donee  negatives  any  implied 
or  presumed  intention  to  exercise  the  power.  And  where  the 
power  is  not  coupled  with  an  interest,  if  the  donee  has  no 
property  which  he  could  dispose  of  by  means  of  the  instru- 
ment executed,  it  will  be  a  good  execution  of  the  power,  though 
neither  the  power  nor  the  property  was  referred  to.°* 

§  414.  Excessive  execution. —  To  what  extent  an  excessive 
execution  will  affect  the  validity  of  the  appointment  depends 
upon  the  ability  to  separate  the  good  part  from  the  bad  part. 
If  the  excess  can  be  separated  and  clearly  distinguished  from 
what  would  have  been  a  valid  execution,  the  latter  will  be 
sustained,  and  only  the  excess  declared  void.  But  if  such  a 
separation  cannot  be  made  without  destroying  the  evidence  of 
the  donee's  intention  to  exercise  the  power  in  the  manner  in 
which  he  could,  the  whole  will  be  avoided,  and  a  failure  of  ex- 
ecution will  be  decreed.'^''  Thus,  if  the  appointment  be  made 
to  a  number  of  persons,  some  of  whom  can  take  and  others 
cannot,  it  will  be  good  as  to  the  former,  at  least,  in  the  case  of 
a  general  power.  If  the  power  be  special,  it  would  be  good 
as  to  those  who  can  take,  provided  the  partial  execution  of  the 

«8Doe  1?.  Vincent,  1  Houst.  416,  427;  Taylor  v.  Eastman,  92  N.  C.  601. 
See  Kirkman  v.  Wadsworth   (N.  C.  1905),  49  S.  E.  Rep.  962. 

«»4  Kent's  Com.  335;  Amory  v.  Meredith,  7  Allen  397;  Blagge  v. 
Miles,  1  Story  426;  1  Sugden  on  Pow.  432;  4  Cruise  Dig.  212;  Co.  Lit.. 
271  b,  Butler's  note  231;  2  Washburn  on  Real  Prop.  612;  Doe  V.  Rooke, 
6  B.  &  C.  720;  Bepper's  Will,  1  Pars.  Eq.  Cas.  440;  Patterson  t\  Wilson, 
64  Md.  193;  Mut.  Life  Ins.  Co.  v.  Shipman,  119  N.  Y.  324;  Hood  V. 
Haden,  82  Va.  588;  Lee  v.  Simpson,  134  U.  S.  572;  Kirkman  r.  Wads- 
worth  (N.  C.  1905),  49  S.  E.  Rep.  962. 

70Tud.  Ld.  Cas.  306;  2  Sugd.  Pow.  55,  62,  75;  4  Cruise  Dig.  205; 
Crompe  v.  Barrow,  4  Ves.  681;  Funk  v.  Eggleston,  92  111.  515,  34  Am. 
Rep.  136;  Graham  r.  Whitridge   (Md.  1904),  87  Atl.  Rep.  609. 

605 


§  415  POWERS.  [part  h. 

power  in  this  manner  does  not  affect  the  lawful  rights  of  the 
others.^^  So  also  if  the  donee  appoints  a  larger  sura  or  a 
larger  estate  than  the  power  authorizes,  the  execution  will  be 
good  within  the  limits  of  the  power;  or  if  he  annexes  to  the 
appointment  conditions  which  are  prohibited  or  not  authorized 
by  the  terms  of  the  power,  the  illegal  conditions  will  be  void, 
and  the  appointee  will  take  an  absolute  estate.^^  In  this  con- 
nection it  may  be  stated  that  the  cy  pres  doctrine  of  con- 
struction applies  to  powers  executed  by  will,  as  it  does  to  all 
testamentary  dispositions.  If  an  appointment  by  will  be  void 
in  part  when  literally  construed,  and  there  appears  on  the 
face  of  the  will  a  general  intent,  which  would  be  a  good  execu- 
tion of  the  power  were  it  not  for  the  special  .intent  manifested 
by  the  manner  in  which  he  executes  it,  the  general  intent  will 
prevail,  and  the  appointment  will  be  held  to  be  good.  Thus, 
if  the  appointment  be  to  an  unborn  son  for  life,  with  re- 
mainder to  his  (the  son's)  unborn  sons  in  tail,  since  the  lat- 
ter limitation  is  void  as  against  the  rule  of  perpetuity,  the 
court  would  construe  the  appointment  an  estate  tail  in  the  first 
taker,  instead  of  a  life  estate,  there  appearing  to  have  been  a 
general  intent  to  that  effect.^' 

§  415.  Successive  execution. —  The  appointment  of  a  less 
estate  than  what  may  be  created  under  the  power  will  be 
good,  unless  there  is  an  express  restriction  against  a  partial 
execution.'^*  And  as  long  as  the  power  is  not  exhausted  it  may 
be  exercised  successively,  at  different  times  over  different  parts 

'1  Sadler  v.  Pratt,  5  Sim.  632.     See  cases  cited  in  note  58. 
.    72  Parker  v.  Parker,  Gibb.  Eq.  168;   2  Sugd.  Pow.  85;  Tud.  Ld.  Cas. 
317-319;  Alexander  v.  Alexander,  2  Ves.  Sr.  640;  4  Cruise  Dig.  202; 
Campbell  v.  Leach,  Ambl.  740. 

"3  2  Sugden  on  Pow.  60,  61;  2  Washburn  on  Real  Prop.  666;  Robinson 
V.  Hardcastle,  2  T.  R.  241;  Leeds  v.  Wakefield,  10  Gray,  514,  519.  See, 
In  re  Risnig  (Eng.  1904),  73  Law.  J.  Ch.  455,  1  Ch.  533,  90  Law.  T. 
504;  Risnig  V.  Risnig,  idem. 

74  4  Cruise  Dig.  205;  2  Washburn  on  Real  Prop.  621-688;  Butler  v. 
Heustis,  68  111.  594,  18  Am.  Rep.  589. 
606 


CH.   XVI.]  POWERS.  §  417 

of  the  property,  or  over  different  estates  in  the  same  tract  of 
land,  whether  the  power  is  one  of  appointment  or  of  revoca- 
tion. And  where  it  is  intended  that  the  power  shall  not  be 
subsequently  exercised,  it  is  the  custom  to  release  it,  where  that 
is  possible.'^" 

§  416.  Revocation  of  appointment. —  The  donee  cannot  re- 
voke his  appointment,  unless  he  expressly  reserves  the  power  of 
revocation  in  the  instrument  of  appointment,  or  it  is  granted 
to  him  in  the  instrument  of  creation.  And  if  the  power  may 
be  exercised  by  deed  or  by  will,  the  revocation  of  an  appoint- 
ment by  deed  will  revive  the  power  to  appoint  by  will.'® 

§  417.  Defective  execution  —  How  and  when  cured. —  The 
general  rule  is  that  an  execution,  defective  because  of  a  fail- 
ure to  conform  to  the  directions  of  the  donor,  will  be  nugatory, 
and  the  appointment  absolutely  void.  And  if  the  appointment 
is  a  mere  gift  to  the  appointee,  and  the  power  is  general  and 
free  from  the  character  of  a  trust,  the  slightest  defect  will  in- 
validate the  execution.^^  But  if  the  power  is  special,  or  the  ex- 
ecution is  a  trust  and  a  peremptory  duty  upon  the  donee,  or  if 
the  donee  has  received  a  valuable  consideration  for  the  appoint- 
ment, equity  will  correct  or  make  good  the  defective  execution 
by  ordering  a  re-execution,'®  provided  there  has  been  a  sub- 

"1  Sugden  on  Pow.  342;  2  Id.  43-45;  4  Cruise  Dig.  200,  201;  Dig- 
ges's  Case,  1  Rep.  174;  Co.  Lit.  271b,  Butler's  note  231;  Woolston  v. 
Woolston,  1  W.  Bl.  281. 

76  2  Sugden  on  Pow.  243;  Co.  Lit.  271b,  Butler's  note  231;  Saunders 
V.  Evans,  8  H.  L.  Cas.  721. 

77  2  Sugden  on  Pow.  98;  Tud.  Ld.  Cas.  317;  Inglis  v.  McCook  (N.  J. 
Ch.  1904),  59  Atl.  Rep.  630. 

78  Hughes  V.  Wells,  9  Hare  749;  Shannon  v.  Bradstreet,  1  Sch.  &  Lef. 
52;  Reid  v.  Shergold,  10  Ves.  370;  Pollard  V.  Greenvil,  1  Chan.  Cas.  10 
Wilkes  V.  Holmes,  9  Mod.  485;  Thorp  v.  McCullura,  1  Oilman  614 
Hout  V.  Hout,  20  Ohio  St.  119;  Schenck  r.  Ellingwood,  3  Edw.  Ch.  175 
Bruce  v.  Bruce,  L.  R.  11  Eq.  371;  Pepper's  Will,  1  Pars.  Eq.  436,  446 
Huss  V.  Morris,  63  Pa.  St.  367;  Hervey  v.  Hervey,  1  Atk.  561;  In  re 
Dyke'8  Estate,  L.  R.  7  Eq.  337;  Dowell  t*.  Dew,  2  Y.  &  C.  345;  Ellison 

607 


§  418  POWERS.  [part  n. 

stantial  compliance  with  the  condition  of  execution,  and  the 
defect  relates  to  the  formalities  of  execution,  such  as  the  num- 
ber of  attesting  witnesses,  the  technical  words  of  limitations, 
or  conveyance,  etc.^'  But  there  is  no  relief  against  the 
defective  execution  of  a  ^atutory  power.  The  remedy  for 
relief  is  confined  to  powers  created  by  act  of  the  owner  of  the 
property.** 

§  418.  Non-execution. —  But  if  the  donee  has  failed  alto- 
gether to  execute  the  power,  or  disregarded  the  material  condi- 
tions imposed  by  the  donor  upon  his  execution,  equity  will  not 
interfere  to  compel  an  execution,^^  unless  the  power  be  a  trust, 
the  execution  of  which  is  mandatory.  In  such  a  case  equity 
will  not  permit  any  accident  or  neglect  of  the  donee  to  defeat 
the  trust,  and  thus  deprive  the  beneficiaries  of  their  rights  un- 
der the  power.  All  mandatory  powers,  whether  general  or 
special,  are  trusts,  and  courts  of  equity  will  execute  such 
powers,  even  if  the  donee  has  failed  to  exercise  the  power,  and 
died.  But  there  can  never  be  any  interference  by  the  courts 
with  discretionary  powers,  if  the  donees  have  refused  to  ex- 
ercise them.** 

V.  Ellison,  6  Ves.  656;  Watt  V.  Watt,  3  Yes.  244;  Tudor  v.  Anson,  2 
Ves.  Sen.  582. 

70  Story  Eq.  Jur.,  Sees.  169-175;  2  Sugden  on  Pow.  88,  et  seq.;  4 
Cruise  Dig.  222,  et  seq.;  Cotter  V.  Layer,  2  P.  Wms.  622;  Toilet  V.  Tel- 
le*, 2  P.  Wms.  489;  Schenck  v.  Ellenwood,  3  Edw.  Ch.  175;  Long  V. 
Hewitt,  44  Iowa  363;  Bradish  V.  Gibbs,  3  Johns.  Ch.  523,  550;  Barr  v. 
Hatch,  3  Ohio  527. 

80  Gridley's  Heirs  V.  Phillips,  5  Kan.  349 ;  Kearney  v.  Vaughn,  50  Mo. 
284;  Smith  V.  Bowes,  38  Md.  463;  Earl  of  Darington  v.  Pulteney,  Cowp. 
260 ;  and  see  Stewart  V.  Stokes,  33  Ala.  494. 

81  Howard  V.  Carpenter,  11  Md.  259;  Mitchell  v.  Denson,  29  Ala.  327; 
Bull  r.  Vardy,  1  Ves.  270;  Toilet  v.  Toilet,  2  P.  Wms.  489;  1  Eq.  Lead. 
Cas.  365,  and  notes   (4  Am.  ed.)  ;  Arundell  v.  Phillpot,  2  Vern.  69. 

82  Story  Eq.  Jur.,  Sees.  169-175,  1062;  2  Sugden  on  Pow.  88,  et  seq.; 
4  Cruise  Dig.  222,  et  seq.;  Gorin  v.  Gordon,  38  Miss.  214;  Neves  V.  Scott, 
9  How.  196-213;  Sedgwick  v.  Laflin,  10  Allen  432;  1  Sugden  on  Pow. 
158;  Withers  v.  Yeadon,  1  Rich.  Eq.  324,  329;  Brown  v.  Higgs,  8  Ves. 

608 


CH.   XVI.]  POWERS.  §  419 

§  419.  Eules  of  perpetuity  applied  to  powers. —  The  rule 
against  perpetuity  finds  application  both  to  the  limitations  of 
the  power  and  to  the  estates  created  under  the  power.  If  the 
power  can  be  exercised  at  a  time  beyond  that  within  which  all 
limitations  must  take  effect  in  possession,  viz. :  a  life  or  lives  in 
being  and  twenty-one  years  thereafter,  the  power  is  void.  It 
is,  therefore,  generally  necessary  to  place  a  limitation  upon 
the  time  within  which  the  power  may  be  exercised.  A  power 
to  one  and  his  heirs,  without  express  or  implied  limitation, 
would  be  void,  at  least  so  far  as  the  heirs  are  concerned.^*  The 
greatest  difficulty  has  been  experienced  in  applying  the  rule 
against  perpetuity  to  the  estates  appointed  under  the  power. 
If  the  power  is  special,  and  the  appointment  is  limited  to  a  per- 
son or  persons,  none  of  whom  can  take,  from  being  too  remote 
under  the  rule,  the  power  is  absolutely  void.  But  if  the  power 
permits  an  appointment  among  a  class,  some  of  whom  can 
take,  and  a  discretion  is  left  in  the  donee  as  to  which  individ- 
uals of  the  class  shall  be  appointed,  the  power  will  be  void  as 
to  those  who  cannot  take.  The  possibility  of  an  illegal  ap- 
pointment will  not  invalidate  the  power,  if  it  is  in  the  end 
properly  exercised  by  an  appointment  to  lawful  persons.^*  In 
determining  the  validity  of  an  appointment  under  a  special 
power  in  respect  to  perpetuity,  the  appointment  must  be 
viewed  in  its  relation  to,  and  as  a  part  of,  the  original  instru- 
ment creating  the  power,  and  must  be  considered  in  the  light 
of  the  circumstances  surrounding  the  estate  and  the  parties 
thereto,  when  the  original  instrument  was  executed,  if  the 
power  be  created  by  deed,  and  at  the  death  of  the  testator,  if 
by  will.  Thus  a  power  to^  appoint  among  grandchildren  can- 
not be  exercised  in  favor  of  such  grandchildren,  whose  parents 


561,  574.     See,  Biggins  v.  Lambert,  115  111.  App.  576,  213  HI.  625,  73  N. 
E.  Rep.  371;  Allder  v.  Jones  (Md.  1903),  56  Atl.  Rep.  487. 

88  Bristow  V.  Warde,  2  Ves.  350;  Ware  v.  Polhill,  11  Ves.  283. 

84  1  Sugden  on  Pow.  471-475;  2  Washburn  on  Real  Prop.  672-675;  Co. 
Lit.  271b,  Butler's  note  231;  Gilbert's  Uses,  160  n;  Graham  v.  Whit- 
ridge  (Md.  1904),  57  Atl.  Rep.  609. 

39  609 


§  420  POWERS.  [part  II. 

were  not  in  being  at  the  time  that  the  power  was  created.^' 
But  if  it  be  a  general  power,  it  is  so  much  like  an  estate  in 
fee,  in  respect  to  the  restriction  against  alienation,  that  an 
appointment  will  be  good,  if  at  the  time  when  the  power  was 
exercised  it  did  not  offend  the  doctrine  of  perpetuity.  The 
validity  of  an  appointment  under  a  general  power  is  deter- 
mined by  its  condition  when  made,  and  not  considered  as  a 
part  of  the  instrument  in  which  the  power  was  created.  An 
appointment  under  such  a  power  to  unborn  children  of  par- 
ents who  are  in  esse  at  the  time  of  the  execution,  but  unborn 
at  the  time  of  creation  of  the  power,  would  be  good.  The 
restriction  upon  alienation  only  began  when  the  appointment 
was  made.** 

§  420.  Rights  of  donee's  creditors  in  the  power. —  The  power 
not  being  an  estate  in  the  land,  if  the  donee's  creditors  have 
any  interest  in  the  same  or  in  the  estate  created  under  the 
power,  it  can  only  be  an  equitable  claim.  The  donee's  credit- 
ors have  no  legal  rights  in  the  power.*^  Where  the  power  is 
general  and  coupled  with  an  interest,  a  sale  of  the  interest  will 
prevent  the  subsequent  exercise  of  the  power.**  In  no  case  can 
the  donee 's  creditors  acquire  an  interest  in,  or  prevent  the  exe- 
cution of  a  special  power.  It  is  also  definitely  settled  that 
where  the  donee  has  not  exercised  his  general  power,  there  is 
no  interest  in  the  donee  to  which  the  rights  of  creditors  may  at- 

85  2  Washburn  on  Real  Prop.  671;  Co.  Lit.  271  b,  Butler's  note  231;  1 
Sugden  on  Pow.  471-475;  2  Prest.  Abst.  165,  166;  Dana  V.  Murray,  122 
N.  Y.  604 ;  In  re  Christie,  59  Hun  153. 

86  2  Washburn  on  Real  Prop.  671;  Feame's  Exec.  Dev.  5,  Powell's 
note;  1  Sugden  on  Pow.  516;  MiflBin's  Appeal,  121  Pa.  St.  205;  Apple- 
ton's  Appeal,  136  Pa.  St.  354.  See,  In  re  Rising,  73  Law.  J.  Ch.  455,  1 
Ch.  533^  90  Law.  T.  504. 

87  Blake  v.  Irwin,  3  Kelly  345 ;  Johnson  r.  Gushing,  15  N.  H.  298 ; 
Townsend  v.  Windham,  2  Ves.  Jr.  3;  Covendale  v.  Aldrich,  19  Pick.  39L 

ssHobbs  V.  Hobbs,  15  Ohio  St.  419.     See  ante,  Sec.  405.     See  Linn  V. 
Downing,  216  111.  64,  74  N.  E.  Rep.  729.     But  see,  for  power  coupled 
with   an   interest,  under  Ky.   St.    (1903),    Sec.    1681,    as   to   creditors'^ 
rights,  Johnson's  Trustee  v.  Johnson,  79  S.  W.  Rep.  293. 
610 


CH.    XVI.]  POWERS.  §  421 

tach.®"  Nor  can  the  creditors,  through  their  assignee  in  bank- 
ruptcy, under  the  bankrupt  law,  execute  the  power  for  their 
benefit.®"  But  it  has  been  held  that  where  the  appoint- 
ment is  made  under  the  power  to  a  voluntary  appointee,  the 
creditors  may  levy  upon  the  estate  in  the  appointee's  hands; 
and  that  the  appointee  always  takes  the  estate  subject  to  the 
payment  of  the  donee 's  debts,  if  the  donee  might  have  exercised 
the  power  in  favor  of  his  creditors.®^  Since  the  creditors  have 
no  interest  in  the  power  itself,  and  cannot  execute  it,  or  com- 
pel its  execution  in  their  favor ;  and  since  the  donee  never  had 
any  other  interest  in  the  property  except  the  power,  and  the  es- 
tate of  the  appointee  passed  to  him  directly  from  the  donor,  it 
is  difficult  to  understand  by  what  course  of  reasoning  the  posi- 
tion of  these  two  courts  can  be  sustained. 

§  421.  The  rights  of  creditors  of  the  beneficiaries. —  As  a 
matter  of  course,  if  a  special  power  of  trust  is  exercised,  the 
.judgment-creditors  may  levy  upon  the  beneficiary's  share  in 
the  proceeds  of  sale.  But  they  cannot  compel  the  donee  to  exe- 
cute the  power.®^  And  if  the  legal  title  descended  to  the  bene- 
ficiary, subject  to  a  power  of  sale,  whatever  interest  the  bene- 
ficiary's creditors  and  grantees  acquire  in  the  estate  will  be 
defeated  by  the  subsequent  exercise  of  the  power,  but  they  will 
in  equity  attach  at  once  to  the  beneficiary's  share  in  the  pro- 
ceeds of  sale."' 

89  Tallmadge  v.  Sill,  21  Barb.  34 ;  Strong  v.  Gregory,  19  Ala.  146.  See 
Thorpe  v.  Goodall,  17  Ves.  Jr.  338,  460;  Holmes  v.  Coghill,  12  Ves.  206; 
Jenny  v.  Andrews,  6  Madd.  264. 

»o  Jones'  Assignee  v.  Clifton,  U.  S.  Cir.  Ct.  Dist.  of  Kentucky  ( 1878 ) , 
7  dent.  L.  J.  89. 

»i  Johnson  v.  Gushing,  15  N.  H.  298 ;  Tallmadge  v.  Sill,  21  Barb.  34. 

02  Chew's  Exrs.  v.  Chew,  28  Pa.  St.  17.  See  Johnson's  Trustee  v. 
Johnson  (Ky.  1904),  79  S.  W.  Rep.  293. 

93  Allison  V.  Wilson  v.  Wilson's  Exrs.,  13  Serg.  &  R.  330;  Reed  v. 
Underbill,  12  Barb.  113.  See,  for  rights  of  beneficiary's  creditors,  under 
the  Wisconsin  statute  (R.  S.  1898,  Sec.  2108),  Auer  c.  Brown,  98  N.  W. 
Rep.  966.  And  see,  for  power  granted,  subject  to  testator's  debts.  Ash- 
man V.  Harriman  (N^H.  1904),  68  Atl.  Rep.  501. 

611 


CHAPTER  XVII. 

INCORPOREAL  HEREDITAMENTS. 


Section    I. 

Rights  of  Common. 

II. 

Easements. 

III. 

Franchises. 

IV. 

Rents. 

Section  422,  Incorporeal  hereditaments  defined. 

423.  Kinds  of  incorporeal  hereditaments. 

§  422.  Incorporeal  hereditaments  defined. —  An  incorporeal 
hereditament  is  a  right  of  an  intangible  nature  which  descends 
to  the  heir  like  corporeal  hereditaments.  It  is  rather  a  right 
in,  or  issuing  out  of,  a  corporeal  hereditament  than  a  right  to 
or  of  such  kind  of  property.  The  enjoyemnt  and  exercise  of 
the  right  produces  substantial  results,  but  the  results  are  to 
be  distinguished  from  the  right,  and  do  not  constitute  the  in- 
corporeal hereditament.  The  Roman  jura  in  re  aliena  com- 
prised a  very  large  class  of  those  rights,  which  are  in  our  law 
comprehended  under  the  term  incorporeal  hereditaments. 

§  423.  Kinds  of  incorporeal  hereditaments. —  Blackstone 
mentions  nine  principal  classes  of  incorporeal  hereditaments, 
viz.:  (1)  Commons;  (2)  Easements;  (3)  Rents;  (4)  Advow- 
sons;  (5)  Corodies;  (6)  Annuities;  (7)  Franchises;  (8)  Of- 
fices; (9)  Dignities.  Of  these.  Commons,  Easements,  Rents 
and  Franchises  pertain  to  this  country.  The  others  do  not 
now,  if  they  ever  did,  exist  here,  and  can  very  well  be  omitted. 
In  presenting  this  subject  the  discussion  will  be  confined  to  I. 
Rights  of  Commons ;  II.  Easements,  III.  Franchises ;  and  IV. 
Rents. 

612  ^ 


SECTION  I. 

RIGHTS  OP  COMMON. 

Section  424.  Definition. 

425.  Kinds  of  rights  of  common. 

426.  Commons  appendant  and  appurtenant. 

§  424.  Definition. —  A  right  of  common  is  a  right  which  one 
may  have  in  another 's  land,  to  take  from  it  certain  substantial 
products,  which  constitute  a  part  of  the  realty  because  of  their 
connection  therewith.  An  easement  is  also  a  right  in,  or  is- 
suing out  of,  another's  land,  and  constitutes  a  burden  upon  it, 
as  will  be  seen  in  the  next  section ;  but  it  only  relates  to  such 
modes  of  enjoyment  which  may  be  had  without  drawing  from 
it  anything  which,  in  contemplation  of  law,  is  a  part  of  the 
land.  A  right  of  common  is  known  also  by  the  Norman  French 
term  profit  a  prendre,  a  right  to  take  something  from  the  land. 
As  will  be  seen,  the  term  right  of  common  has  lost  its  signifi- 
cance in  this  country.  An  easement  may  prevent  the  owner 
of  adjacent  land  from  building  so  near  the  boundary  as  to  ex- 
clude the  light  and  air  from  one's  residence,  or  it  may  co;"*- 
sist  in  the  right  to  keep  a  stream  free  from  obstruction  while 
flowing  through  the  adjoining  land  above;  but  light,  air  and 
water  are  not  a  part  of  the  realty,  and,  therefore,  one  cannot 
have  a  right  of  common  in  them.  Another  distinction  is  that 
a  right  of  common  does  not  impose  any  obligation  upon  the 
owner  of  the  land  to  maintain  a  supply  of  the  thing  taken, 
while  an  easement  may  contain  such  an  obligation.  Such  an 
obligation  may  be  the  very  essence  of  the  easement.^ 

1  2  Bla.  Com.  32 ;  Huntington  t?.  Asher,  96  N.  Y.  604.  See  also  Post 
V.  Pearsall,  22  Wend.  (N.  Y.)  425;  Hill  v.  Lord,  48  Me.  83;  Huflf  v. 
McCauley,  53  Pa.  St.  206. 

613 


§  426  RIGHTS   OF   COMMON.  [PART    li. 

§  426.  Kinds  of  rights  of  common. —  TTiere  are  four  impor- 
tant kinds  of  common,  viz. :  Common  of  pasture,  piscary,  tur- 
bary and  estovers.  Common  of  pasture  is  a  right  of  pastur- 
ing cattle  upon  the  land  of  another.  Common  of  piscary  is 
the  right  to  fish  in  the  streams  which  pass  through  another's 
land.  Common  of  turbary  consisted  in  the  right  to  dig  turf 
or  peat  for  use  as  fuel.  Of  the  same  character  would  be  the 
right  to  dig  coal  for  the  same  purpose.  Common  of  estovers 
was  a  right  of  the  same  nature,  being  a  right  to  take  whatever 
wood  is  necessary  for  use  on  the  farm,  for  the  purpose  of  fuel, 
repairing  the  ploughs  and  other  agricultural  implements,  or 
the  hedges  and  fences.  According  to  the  use  to  which  the 
wood  was  put,  they  were  respectively  called  house-bote,  plough- 
bote  and  cart-bote,  and  hay-bote  or  hedge-bote.  The  enjoy- 
ment of  these  rights  of  estovers  was  limited  to  a  reasonable 
degree,  and  the  wood  could  be  used  only  as  far  as  it  was  nec- 
essary for  the  purposes  of  the  farm.^ 

§  426.  Commons  appendant  and  appurtenant. —  At  common 
law  rights  of  common  were  divided  into  two  classes,  common 
appendant,  and  common  appurtenant.  Common  appendant 
was  the  more  usual  kind.  It  arose  out  of  the  peculiar  condi- 
tion of  the  English  tenantry,  and  more  especially  out  of  the 
manor  system  of  holding  lands.  When  the  lord  of  the  manor 
rented  his  arable  land  to  his  tenant,  he  gave  with  this  land 
these  rights  of  common,  so  that  the  tenant  would  be  able  to  ob- 
tain everything  necessary  for  the  successful  conduct  of  the 
farm.  Thus  the  tenant  had  a  right  to  pasture  his  cattle  upon 
the  waste  land  of  his  lord,  to  take  the  necessary  wood  from 
the  forests,  etc'  Common  appendant  does  not  now  exist  in 
this  country.  Whatever  commons  are  created  here  are  of  the 
class  known  at  common  law  as  common  appurtenant,  or  in 
gross.  They  rest  upon  grant,  express  or  implied.  When  im- 
plied, the  right  is  acquired  by  prescription,  or  under  the  Stat- 

2  2  Bla.  Com.  32-35. 
8  2  Bla.  Com.  33. 
614 


CH.   XVn.]"  RIGnTS  OP  COMMON,  §  426 

ute  of  Limitations.  Common  appurtenant  and  common  ap- 
pendant were  annexed  to  some  land  held  by  the  person  enjoy- 
ing the  right,  while  common  in  gross  was  to  a  man  and  his 
heirs,  independent  of  any  land  he  may  hold.*  Inasmuch  as 
commons  are  now  created  in  the  same  manner  as  easements, 
they  receive  almost  the  same  construction.  The  subject,  there- 
fore, needs  no  special  treatment  beyond  what  has  been  al- 
ready stated.     The  principal  American  cases  are  cited  below.' 

*2  Bla.  Coin.  33,  34. 

BKnowles  v.  NichoUs,  2  Curt.  571;  Donnell  f.  Clark,  10  Me.  174; 
Thomas  v.  Mansfield,  13  Pick.  240;  Perkins  v.  Perkins,  44  Barb.  134; 
Van  Rensselaer  v.  Radclilfe,  10  Wend.  639;  Livingstone  v.  Ten  Broeck, 
16  Johns.  14;  Funkhouser  v.  Langkopf,  26  Mo,  45;  Edwards  v.  McClung, 
39  Ohio  St.  41. 

615 


SECTION  11. 

EASEMENTS. 

SacnoK  427.  What  are  easements. 

428.  When  merger  takes  effect. 

429.  How  acquired. 

430.  Easements  by  express  grant. 

431.  Implied  grant. 

432.  Equitable  easements. 

433.  Easements  implied  from  covenant. 

434.  Rights  of  action  in  defense  of  easement. 

435.  How  easements  may  be  lost  or  extinguished. 

436.  Kinds  of  easements. 

437.  Right  of  way. 

438.  A  private  way. 

439.  Ways  of  necessity. 

440.  Who  must  repair  the  way. 

441.  Public  or  highways. 

442.  Light  and  air. 

443.  How  acquired. 

444.  Right  of  water. 

445.  Percolations  and  swamps. 

446.  Artificial  water  courses. 

447.  Easements  in  water  courses  and  surface  drainage. 

448.  Right  of  lateral  and  subjacent  support. 

449.  Implied  grant  of  lateral  support. 

450.  Party  walls. 

451.  Double  ownership  in  buildings  —  Subjacent  support. 

452.  Legalized  nuisances. 

§  427.  What  are  easements. —  As  has  been  explained  in  dis- 
tinguishing between  commons  and  easements,  the  latter  are 
rights  of  enjoyment  in,  or  issuing  out  of,  another's  land,  which 
restrict  or  limit  the  owner's  right  of  enjoyment  either  affirm- 
atively, by  giving  another  person  a  right  to  use  the  land  for 
certain  purposes,  as,  for  example,  a  right  of  passing  over  the 
land,  or  negatively,  by  restraining  the  owner  from  using  it  in 
616 


CH.    XVII.]  EASEMENTS.  "  428 

• 

a  particular  manner,  such  as  the  erection  of  buildings  so  /':ar 
to  the  boundary  line  as  to  exclude  the  light  and  air  from  the 
residence  of  an  adjoining  proprietor.*  A  technical  easement 
can  only  exist  as  appurtenant  to  an  estate  in  lands,  although 
there  may  be  an  incorporeal  hereditament  in  the  nature  of  an 
easement,  which  exists  and  is  owned  independently  of  any  es- 
tate in  the  land.^  Two  estates  are  thereby  brought  into  relation 
with  each  other,  and  the  existence  of  both  is  necessary  to  the 
maintenance  of  an  easement.  They  are  called  the  dominant 
and  servient  estates.  The  dominant  estate  is  the  one  enjoy- 
ing the  easement,  and  to  which  it  is  attached ;  the  servient  es- 
tate is  the  one  upon  which  the  easement  is  imposed.  As  ap- 
purtenant to  the  dominant  estate,  the  easement  passes  with  it 
into  whosesoever  hands  the  land  may  come.  The  easement 
cannot  be  severed  from  it.* 

§  428.  When  merger  takes  effect. —  When  the  dominant  es- 
tate falls  into  the  possession  of  the  owner  of  the  servient  es- 
tate, the  easement  is  extinguished,  if  the  two  estates  are  co- 
equal and  co-extensive,  since  no  man  can  have  an  easement  in 
his  own  land.*  If  the  title  to  either  of  the  estates  proves  de- 
fective, the  easement  is  only  suspended  while  the  two  estates 

«  Ritger  V.  Parker,  8  Cush.  (Mass.)  145;  Gale  on  Easements,  p.  5; 
Oliver  v.  Hook,  47  Md.  301;  Scriver  v.  Smith,  100  N.  Y.  471;  Big  Mt. 
Imp'v't.  Co.'s  App.,  54  Pa.  St.  361;  Goddard  on  Eas.  70,  71,  72,  84; 
Barlow  v.  Rhodes,  1  O.  &  M.  448 ;  Thomson  v.  Waterlow,  L.  R.  6  Eq. 
Cas.  36;  Fetters  v.  Humphreys,  19  N.  J.  Eq.  471;  Washburn  on  Eas.  39; 
Worthington  v.  Grimson,  105  E.  C.  L.  616;  Pearson  v.  Johnson,  68  N. 
Y.  62 ;  s.  c.  23  Am.  Rep.  149. 

7  Knecken  v.  Voltz,  110  HI.  264;  Manderbach  v.  Bethany  Orphans* 
Home,  1  Cent.  Rep.  (Pa.)  402;  Hills  v.  Miller,  3  Paige  (N.  Y.)  254. 

8  Hills  V.  Miller,  3  Paige  (N.  Y.)  254;  Oliver  v.  Hook,  47  Md.  301; 
Meek  v.  Breckenridge,  29  Ohio  St.  642;  Murphy  r.  Welch,  128  Mass. 
489;  Dark  v.  Johnston,  65  Pa.  St.  361;  Parsons  V.  Johnson,  68  N.  Y.  62; 
Stuyvesant  v.  Woodruff,  1  Zab.  (N.  J.)   133. 

•  Atwater  v.  Bodfish,  11  Gray  150;  McAllister  v.  Devane,  76  N.  Car. 
67;  Miller  V.  Lapham,  44  Vt.  416;  Denton  v.  Leddell,  23  N.  J.  Eq.  64; 
McTavish  v.  Carroll,  7  Md.  362. 

617 


§  429  EASEMENTS.  [PART   U. 

are  in  the  possession  of  the  one  owner. ^°  So  if  the  dominant 
estate  which  is  transferred  to  the  owner  of  the  servient  estate, 
is  less  in  point  of  duration  than  the  servient,  the  easement  will 
only  be  suspended  during  the  union  of  the  two  estates  and  will 
revive  upon  their  separation.^^  And  it  may  be  stated  generally 
that,  wherever  the  extinguishment  of  an  easement  will  operate 
as  an  injury  to  some  one  having  rights  in  the  same,  equity  will 
limit  the  effect  of  the  union  of  the  estates  to  suspension  during 
such  union,  and  the  easement  will  revive,  in  favor  of  the  parties 
having  rights  in  it,  at  the  termination  of  the  union.  But  if 
the  two  estates  are  of  the  same  quality  and  duration,  when 
they  come  into  the  possession  of  the  same  owner,  the  easement 
is  completely  extinguished,  and  is  not  revived  by  a  subsequent 
conveyance  of  the  dominant  estate,  except  by  express  agree- 
ment.^- 

§  429.  How  acquired. —  Easements  are  acquired  by  grant, 
express  or  implied,  or  by  prescription,  which  pre-supposes  a 
grant.  The  doctrine  of  prescription  as  known  at  the  com- 
mon law  is  no  longer  in  practical  operation.^^  It  has  been  su- 
perseded by  Statutes  of  Limitation,  which  fix  a  time  in  which 
a  right  may  be  acquired  by  adverse  possession  or  enjoyment. 
The  subject  of  title  by  prescription  or  limitation  will  be 
treated  more  fully  in  subsequent  pages.  These  Statutes  of 
Limitations  do  not  in  express  terms  refer  to  easements,  but 
courts  have  generally  applied  to  easements  their  provisions 
concerning  rights  in  real  property.  It  is,  therefore,  a  general 
rule  that  a  right  of  easement  is  acquired  by  prescription 

10  Tyler  V.  Hammond,  11  Pick.  193. 

11  Grant  v.  Chase,  17  Mass.  443;  Pearce  v.  McClenaghan,  5  Rich.  178. 

12  Thomson  v.  Waterlow,  L.  R.  6  Eq.  Cas.  36;  Barlow  v.  Rhodes,  1  C. 
&  M.  448;  Longendyke  V.  Anderson,  101  N.  Y.  625;  Parsons  v.  Johnson, 
68  N.  Y.  62.  But  see,  Bullock  v.  Phelps  (R.  I.  1905),  27  R.  1.  164,  61 
Atl.  Rep.  589. 

13''  To  acquire  an  easement  in  the  land  of  another  under  the  common 
law,  the  use  must  have  been  continued  from  a  time  when  the  memory 
of  man  ran  not  to  the  contrary."    Wasmund  v.  Harm  (Wash.  1904),  78 
Pac.  Rep.  777. 
618 


CH.    XVII.]  LASEMEl^S.  §  429 

within  the  time  prescribed  by  the  Statute  of  Limitation  for 
the  recovery  of  lands. ^*  But  since  the  application  of  the 
statute  to  the  case  of  easements  rests  upon  analogy,  the  statu- 
tory period  has  been  held  to  raise  only  a  legal  presumption 
that  a  grant  has  been  made,  and  does  not  operate  as  a  legal 
bar.  The  presumption  can  be  rebutted  by  evidence,  showing 
that  there  had  been  no  grant."  But  the  rule  is  not  uniform, 
there  being  cases  which  hold  that  it  is  a  conclusive  presump- 
tion.^" It  is  probable  that  this  may  now  be  considered  as 
the  generally  prevailing  law."  But  no  prescriptive  right  can 
be  claimed  where  the  long  use  was  had  under  a  license  from 
the  owner  of  the  land,^*  or  where  the  use  was  constantly 
interrupted."  Nor  can  there  be  any  easement  by  prescrip- 
tion in  favor  of  the  public.^**     The  public  may,  however,  ac- 

1*  Campbell  v.  Wilson,  3  East  2^4;  Richard  v.  Williams,  7  Wheat.  59; 
Stearns  v.  Jones,  12  Allen  582;  Carlisle  V.  Cooper,  19  N.  J.  Eq.  256; 
Nichols  V.  Wentworth,  100  N.  Y.  455;  Wallace  v.  United  Presb.  Church, 
111  Pa.  St.  164;  Rogerson  V.  Shepherd,  33  W.  Va.  307,  10  S.  E.  Rep. 
632;  Smith  v.  Putnam,  62  N,  H.  369;  McKinzie  v.  Elliott  (111.),  24  N. 
E.  Rep.  965, 

isTiilkham  v.  Arnold,  3  Me.  120;  Parker  v.  Foote,  19  Wend.  309; 
Sherwood  v.  Burr,  4  Day  244.  See  Tredwell  v.  Inslee,  120  N.  Y.  458. 
24  N.  E.  Rep.  651. 

laBeasley  V.  Shaw,  6  East  208;  Wright  v.  Howard,  I  Sim.  &  S.  190; 
Comett  1?.  Phudy,  80  Va.  710. 

17  Tyler  v,  Wilkinson,  4  Mason  (U.  S.)  397;  Corning  v.  Gould,  16 
Wend.  (N.  Y.)  531;  Carlisle  v.  Cooper,  19  N.  J.  Eq.  256;  Poison  v. 
Ingram,  22  S.  Car.  .541;  Benlow  v.  Robbins,  71  N.  C.  338;  NichoUs  v. 
Wentworth,  100  N,  Y.  455;  Gordon  v.  Taunton,  126  Mass.  349;  Com.  v. 
Low,  3  Pick.  (Mass.)  408;  Sargent  v.  Ballard,  9  Pick.  (Masa.)  251. 
See  Hay  r.  Callman  (N.  Y.  1905),  73  N.  E.  Rep.  1125. 

18  Eckerson  v.  Crippen,  38  Hun  419.  "Where  the  owner  of  a  saloon 
adjoining  a  hotel  had  a  permissive  license  to  use  the  rotunda  as  a 
passageway  to  the  saloon,  such  license  could  not  ripen  into  an  easement." 
Reiser  v.  Moore  (Ark.  1904),  84  S.  W.  Rep.  219. 

18  Kirschner  v.  The  W.  &  A.  R.  Co.,  67  Ga.  760;  Lehigh  Valley  R.  Co. 
V.  McFarlan,  30  N.  J.  Eq.  180;  Eckerson  v.  Crippen,  39  Hun  (N.  Y.) 
419. 

20 Curtis  V.  Keesler,  14  Barb.  (N.  Y.)  511;  Pearsall  v.  Post,  20  Wend. 
(N.  Y.)  121;  8.  c.  22  Wend.  (N.  Y.)  440.  Compare  Gordon  v.  Taunton, 
126  Mass.  349. 

619 


§  431  EASEMENTS.  [PART   H. 

quire  such  a  right  by  dedication,  and  without  formal  con- 
veyance.'^^ 

§  430.  An  easement  by  express  grant. —  Is  created  by  deed, 
containing  an  express  reservation  of  the  right.  It  cannot 
be  created  by  parol.  ^*  It  need  not  be  reserved  in  the  same 
deed  which  creates  or  conveys  the  dominant  estate;  it  may 
be  granted  in  a  separate  deed.-^  It  may,  also,  be  created 
in  a  deed  conveying  the  servient  estate  by  reservation  to  the 
grantor.-*  For  the  creation  of  an  easement  by  express  grant 
upon  one  estate  in  favor  of  another,  there  need  not  be  any 
prior  unity  of  title  or  estate  in  the  two  parcels  of  land. 
There  need  not  be  any  previous  connection  whatever  between 
the  two  estates  or  their  owners.^' 

§  431.  Implied  grants. —  An  easement  is  created  by  implied 
grant  where  the  easement  is  so  essential  to  the  enjoyment 
of  the  estate  granted,  that  it  is  necessary  to  be  implied  to 
prevent  the  conveyance  from  operating  as  an  injury  to  the 
grantee.  Thus,  if  a  man  conveys  a  parcel  of  land,  sur- 
rounded on  all  sides  by  his  own  land,  so  that  the  grantee 
cannot  get  to  the  land  conveyed,  except  by  passing  over 
the  other  lands  of  the  grantor,  the  law  implies  that  a  right 

21  Trustees  of  Watertown  v.  Cowen,  4  Paige  (N.  Y.)  510;  see  also 
Scott  V.  Cheatham,  12  Heisk.  (Tenn.)  713;  Stevenson  v.  Chattanooga, 
20  Fed.  Rep.  586. 

22  Brown  on  Statute  of  Frauds,  Sec.  232;  Bryan  v.  Whistler,  8  B.  & 
C.  288;  Knight  v.  Dyer,  57  Me.  174;  Taylor  v.  Millard,  118  N.  Y.  244, 
23  N.  E.  Rep.  376;  Robinson  v.  Thrailkill,  110  Ind.  117;  see  also  Fuhr 
r.  Dean,  26  Mo.  116;  Brooks  v.  Curtis,  4  Lans.  (N.  Y.)  283;  Miller  v. 
A.  &  S.  R.  Co.,  6  Hill   (N.  Y.)   61. 

23  Gerrard  v.  Cook,  2  Bos.  &  P.  N.  R.  109 ;  Ashcroft  v.  E.  R.  Co.,  126 
Mass.  196;  Hankey  v.  Clark,  110  Mass.  262;  Corbin  v.  Dale,  57  Mo.  297; 
Richardson  v.  Clements,  89  Pa.  St.  503. 

24  Pettee  V.  Hawkes,  13  Pick.  323, 

25Gibert  v.  Peteler,  39  N.  Y.  165.     See,  Bernos  v.  Coulpa   (La.  1905), 
38  So.  Rep.  438;  Bole  v.  Todd    (Ga.  1905),  50  S.  E.  Rep.  990;  Anthony 
V.  Kennard  Bldg.  Co.   (Mo.  1905),  87  S.  W.  Rep.  921. 
620 


CH.    XVII.]  EASEMENTS.  §  432 

of  way  over  such  lands  was  granted  in  the  deed.^*  What 
shall  be  considered  such  a  necessity  as  will  raise  an  ease- 
ment by  implication  depends  upon  the  facts  of  each  partic- 
ular case.  It  is  a  well  established  rule  that  the  necessity 
need  not  be  absolute.  If  the  enjoyment  of  the  estate 
granted^  cannot  be  complete  without  the  easement,  except  at 
an  unusual  expense,  or  inconvenience,  the  easement  will  be 
implied. ^^  The  enjoyment  of  the  land  without  the  easement 
need  not  be  absolutely  impossible.  Thus,  in  the  case  of  a 
right  of  way,  it  is  not  necessary  that  the  land  should  be 
entirely  surrounded,  in  order  to  create  by  implication  an 
easement  of  way  over  the  grantor's  lands;  it  will  be  suJ0&- 
cient  if  the  land  granted  is  to  such  an  extent  surrounded, 
that  the  grantee  can  get  to  it  only  with  great  difficulty  and 
inconvenience. 

§  432.  Equitable  easements. —  Corresponding  to,  and  form- 
ing a  part  of,  the  subject  of  implied  easements,  is  the  doc- 
trine of  equitable  easements.  At  law  it  is  impossible  for 
an'  easement  to  exist  between  two  estates  owned  by  the  same 
person.  If  the  two  parcels  had  had  separate  owners,  upon 
the  union  of  them  in  the  one  owner,  as  we  have  seen,  the 
easement  would  at  least  be  suspended  during  the  continuance 
of  such  union  and  revive  upon  their  separation.     The  ease- 

w  Potnfret  V.  Ricord,  1  Saund.  322 ;  Proctor  v.  Hodgson,  10  Exch.  624. 
See  post,  Sec.  439. 

"O'Rorke  v.  Smith,  11  R.  I.  259;  a.  c.  23  Am.  Rep.  440;  Francies'B 
Appeal,  96  Pa.  St.  200;  Nichols  v.  Luce,  24  Pick.  (Mass.)  102;  Barnes 
V.  Lloyd,  112  Mass.  224;  Hollenbeck  v.  McDonald,  112  Mass.  247;  Buss 
V.  Dyer,  125  Mass.  287;  Wentworth  v.  Philpot,  60  N.  H.  193;  Burns  v. 
Gallagher,  62  Md.  462;  see  also.  Mitchell  v.  Seipel,  53  Md.  251;  Randall 
V.  McLaughlin,  10  Allen  (Mass.)  366.  "  Where  land  sold  out  of  a  tract 
is  surrounded  on  three  sides  by  land  of  private  individuals,  the  sale 
carries  with  it,  by  presumption  of  law,  a  right  of  way  over  the  remain- 
ing  land  of 'the  grantor  to  a  public  highway."  Brown  v.  Kemp  (Ore. 
1905),  81  Pac.  Rep.  236.  "  An  execution  sale  of  part  of  a  tract  of  land 
without  an  exit  carries  with  it  a  right  of  way  of  decessity  over  the  re* 
mainder."    Damron  v.  Damron  (Ky.  1905),  84  S.  W.  Rep.  747. 

621 


§   432  EASEMENTS.  [PART   II. 

ment  would  revive  only  when  the  dominant  and  servient 
estates  were  of  unequal  value  in.  the  matter  of  duration.** 
But  notwithstanding  the  fact  that  at  law  there  can  be  no 
easement  in  favor  of  one  parcel  imposed  upon  another,  both 
being  held  by  the  same  owner,  yet  in  equity  such  a  relation 
may  exist.  If  the  owner*  of  two  parcels  so  uses  them  as  to 
make  one  servient  to  the  other,  as,  for  example,  in  the 
construction  of  a  drain  carrying  waste  water  from  one 
estate  oveWthe  other,  in  equity  an  easement  will  be  imposed 
upon  one  lot  in  favor  of  the  other,  which,  upon  the  severance 
of  ownership  by  alienation,  assumes  the  character  of  a  legal 
easement,*"  if  its  continuance  is  essential  to  the  enjoyment 
of  the  estate  which  is  sold.^"  It  seems  also  that  the  servitude 
will  be  an  open  and  notorious  incumbrance,  particularly 
where  the  servient  estate  is  conveyed  away.^^  The  same 
principle  has  been  applied  to  a  case  where  the  owner  of  two 
lots  conveys  them  to  different  grantees,  and  so  divides  them 
that  the  wall  of  the  house  conveyed  to  one  of  them  falls 
within  the  boundary  line  of  the  other,  held  to  create  an 
equitable  easement  in  favor  of  the  owner  of  the  house^* 
Especially  does  an  easement  arise  when  the  quasi  dominant 
estate  is  granted  to  another.  If  the  quasi  servient  estate 
has  been  conveyed,  it  is  a  question  of  some  doubt  whether 
there  is  reserved  to  the  grantor  by  implication  an  easement 

28  See  ante,  Sec.  428. 

29  Pyer  V.  Carter,  40  Eng.  L.  &  Eq.  410;  Guy  v.  Brown,  5  Moore  644; 
Johnson  v.  Jordan,  2  Mete.  234 ;  Smith  v.  Blanpied,  62  N.  H.  652 ;  Smith 
V.  Smith,  62  N.  H.  429;  Crosland  v.  Rogers  (S.  C),  10  S.  E.  Rep.  874; 
Lampman  v.  Milks,  21  N.  Y.  505;  Huttemeier  v.  Albro,  18  N.  Y.  48; 
Lansing  v.  Wiswall,  5  Denio  (N.  Y.)  213. 

30  Smith  V.  Blanpied,  62  N.  H.  652;  Smith  v.  Smith,  62  N.  H.  429; 
Crosland  v.  Rogers  (S.  C),  10  S.  E.  Rep.  874.  See  Jackson  v.  Eli  (D. 
C.  1904),  23  App.  D.  C.  122;  Hess  v.  Kennedy  (N.  J.  Ch.  1904),  61  Ail. 
Rep.  464. 

siTredwell  v.  Insley,  120  N.  Y.  458,  24  N.  E.  Rep.  651;  Fetters  v. 
Humphreys,  19  N.  J.  Eq.  471;  Grant  v.  Chase,  17  Mass.  443. 

82  Reiners  v.  Young,  38  Hun  335 ;  John  Hancock,  etc.,  v.  Patterson, 
103  Ind.  582,  53  Am.  Rep.  550. 
622 


CH.    XVII.]  EASEMENTS.  §  433 

to  maintain  the  drain  or  other  burden  upon  the  'granted 
estate.  The  authorities,  English  and  American,  are  at  vari- 
ance on  this  question.  In  this  country  the  better  opinion 
is  that  the  rule  would  be  the  same  as  in  the  case  of  the  con- 
veyance of  the  quasi  dominant  estate,^*  especially  if  it  was 
strictly  necessary  to  the  enjoyment  of  the  dominant  estate, 
and  the  existence  of  the  easement  is  apparent  or  known  to 
the  grantee.^* 

§  433.  Easement  implied  from  covenant. —  Somewhat  sim- 
ilar are  the  cases  where,  in  the  conveyance  of  several  parcels 
of  land  to  different  grantees,  the  grantor  imposes  a  restric- 
tion upon  the  use  and  mode  of  enjoyment  of  the  land  so 
granted,  which  creates  a  mutual  benefit  to  the  owners  of  the 
several  parcels.  Even  though  the  restriction  be  in  the  form 
of  a  covenant,  equity  will  construe  it  to  have  the  binding 
force  of  an  easement,  and  will  sustain  an  action  for  its 
enforcement  in  favor  of  any  one  of  the  owners.  They  are 
covenants  running  with  the  land,  and  can  be  enforced  by 
any  one  in  whose  possession  any  one  of  the  parcels  should 
fall.^'     Such  would  be  the  case  where,  in  granting  several 

88  Warren  v.  Blake,  54  Me.  289 ;  Johnson  v.  Jordan,  2  Mete.  234 ; 
Treadwell  v.  Inslee,  120  N.  Y.  458. 

84  Scott  V.  Bentel,  23  Gratt.  (Va.)  1;  Hardy  v.  McCullough,  23  Gratt. 
(Va.)  251;  Griffiths  v.  Morrison,  106  N.  Y.  165;  Outerbridge  v.  Phelps, 
13  Abb.  N.  C.  (N.  Y.)  117;  Morrison  V.  King,  62  111.  30;  Life  Ins.  Co. 
V.  Patterson,  103  Ind.  582 ;  s.  c.  53  Am.  Rep.  550 ;  Robinson  v.  Thrailkill, 
110  Ind.  117;  Cave  v.  Crafts,  53  Cal.  135;  Sanderlin  v.  Baxter,  76  Va. 
299 ;  8.  c.  44  Am.  Rep.  165 ;  Galloway  v.  Bonesteel,  65  Wis.  79 ;  Petland 
V.  Keep,  41  Wis.  490;  Turner  v.  Thompson,  58  Ga.  268;  U.  S.  v.  Ap- 
pleton,  1  Sumn,  (U.  S.)  492;  Hazard  v.  Robinson,  3  Mason  (U.  S.)  272; 
Alexander  v.  ToUeston  Club,  110  111.  65;  Cihak  v.  Klekr,  117  111.  643. 
See  Keith  v.  Twen.  Cent.  Club,  73  Law.  J.  Ch.  546,  90  Law.  T.  775  (Eng. 
1904). 

88 Martin  v.  Martin  (Kan.),  25  Pac.  Rep.  418;  Clement  v.  Burtis  (N. 
Y.),  24  N.  E.  Rep.  1013;  Nye  v.  Hoyle,  120  N.  Y.  195,  24  N.  E.  Rep.  1; 
Graves  v.  Deterling,  120  N.  Y.  447;  Pittsburg,  etc.,  R.  R.  Co.,  t;.  Reno, 
22  111.  App.  470;  8.  c.  123  111.  273,  14  N.  E.  Rep.  195;  Midland  Ry.  Co. 
V.  Fisher  (Ind.),  24  N,  E,  Rep.  756,  758.  See  Hess  v.  Kennedy  (N.  J. 
Ch.  1905),  61  Atl.  Rep.  464. 

623 


§  434  EASEMENTS.  [PART   11. 

parcels  of  land,  the  conveyances  contain  covenants  that  any 
buildings  thereafter  erected  upon  any  one  of  them  shall  be 
set  back  from  the  street  a  certain  distance.  An  injunction 
would  be  granted  at  the  suit  of  either  of  the  owners  of  the 
several  pieces  of  property  restraining  another  from  violating 
the  covenant.^*  But  if  the  covenant  as  to  the  use  of  the 
land  is  imposed  upon  only  one  of  the  lots,  and  omitted  in  the 
conveyance  of  the  others,  the  covenant  is  held  to  be  thereby 
abandoned  even  as  to  the  grantee  in  whose  deed  the  covenant 
was  inserted.^^ 

§  434.  Rights  of  action  in  defense  of  easements. —  The  ac- 
tions are  of  two  kinds,  (1)  by  injunction*®  restraining  some 

38  Whatman  v.  Gibson,  9  Sim.  196;  Harrison  V.  Good,  L.  E.  11  Eq. 
338;  Brewer  v.  Marshall,  19  N.  J.  Eq.  543;  Winfield  v.  Henning,  21  N. 
J.  Eq.  188;  St.  Andrews  Church  Appeal,  67  Pa.  St.  518;  Pingree  v. 
McDuffie,  56  N.  H.  306;  Burns  v.  Gallagher,  62  Md.  462;  Viall  v.  Car- 
penter, 14  Gray  (Mass.)  126;  Day  v.  Walden,  46  Mich.  575;  Brown  V. 
Burkenmcyer,  9  Dana  (Ky.)  159;  Lennig  v.  Ocean  City  Assn.,  41  N.  J. 
Eq.  606;  s.  c.  56  Am.  Rep.  See  also.  White's  Bank  of  Buffalo  v.  Nichols, 
64  N.  Y.  65;  Foster  V.  City  of  Buffalo,  64  How.  Pr.  (N.  Y.)  127;  in  the 
Matter  of  Opening  Eleventh  Ave.,  81  N.  Y.  436;  Baxter  V.  Arnold,  114 
Mass.  577;  s.  c.  11  Am.  Rep.  335;  Bagnall  v.  Davies,  140  Mass.  76; 
Atty.-Gen.  v.  Williams,  140  Mass.  329,  54  Am.  Rep.  468;  Payson  v. 
Burnham,  141  Mass.  547;  Hamlin  V.  Werner,  144  Mass.  396;  Winnepe- 
saukee,  etc.,  Assn.  v.  Gordon,  63  N.  H.  505;  Webb  V.  Robbins,  77  Ala. 
176;  Hull  V.  C.  B.  &  Q.  R.  R.  Co.,  65  Iowa  713;  Coudert  v.  Sayre  (N.  J.), 
19  Atl.  Rep.  190;  Graves  v.  Detenling,  120  N.  Y.  447,  24  N.  E.  Rep.  655; 
Page  V.  Murray  (N.  J.),  19  Atl.  Rep.  11;  Mackenzie  V.  Childers,  43  Ch. 
Div.  265;  Foster  V.  Foster,  62  N.  H.  46;  Avery  v.  N.  Y.  Cent.  &  C.  R. 
R.  Co.  (N.  Y.),  24  N.  E.  Rep.  20,  24;  Smith  V.  Bradley  (Mass.),  28  N. 
E.  Rep.  14.  In  the  same  manner  a  covenant  to  build  and  maintain  a 
party  wall,  if  the  wall  has  been  constructed,  will  operate  as  an  ease- 
ment. Richardson  v.  Tobey,  121  Mass.  457,  23  Am.  Rep.  283.  But  an 
executory  agreement  or  covenant  to  build  a  party  wall  cannot  operate 
as  an  easement,  since  such  a  covenant  does  not  run  with  the  land,  and 
is  binding  only  upon  the  covenantor.  Cole  v.  Hughes,  54  N.  Y.  444,  13 
Am.  Rep.  611. 

37 Duncan  v.  Central  Pas.  R.  R.  Co.  (Ky.),  4  S.  W.  Rep.  228;  Stuart 
r.  Diplock,  23  Ch.  Div.  343. 

38  Rogerson  v.  Shepherd,  33  W.  Va.  307,  10  S.  E.  Rep.  632 ;  Herman  v. 
624 


X 


CH.   XVn,]  EASEMENTS.  §  435 

future  injury  or  impairment  of  the  easement,  or  enforcing 
the  performance  of  the  conditions  of  such  easement,  and 
(2)  an  action  for  damages  for  the  objection  to,  or  in- 
terference with,  the  easement  which  has  already  happened.*® 
And  in  order  to  sustain  the  action  for  damages,  no  actual 
damage  need  be  proven.  It  would  be  an  injuria  sine  damno, 
or  wrong  without  damage,  which  is  always  actionable.  But 
the  owner  of  the  servient  estate  may  make  any  use  of  it, 
which  does  not  materially  interfere  with  the  exercise  of  the 
easement.*" 

§  435.  How  easements  may  be  lost  or  extinguished. —  This 
may  occur  (1)  by  acts  of  the  owner  of  the  dominant 
estates,  or  (2)  by  acts  of  the  owner  of  the  servient  estate. 
An  easement  may  be  released  by  deed  of  the  owner  of  the 
dominant  estate,  or  it  may  be  lost  by  abandonment.  It 
cannot  be  released  by  parol  agreement,' unless  the  agreement 
is  carried  into  execution  by  some  affirmative  act,  as  the 
creation  of  a  new  easement  in  the  place  of  the  old  one,  so 

Roberts,  119  N.  Y.  37,  23  N.  E.  Rep.  442;  Swift  v.  Coker,  83  Ga.  789, 
10  S.  E.  Rep.  442;  Frey  v.  Lowden,  70  Cal.  550,  11  Pac.  Rep.  838.  See 
Wasmund  v.  Harm  (Wash.  1904),  78  Pac.  Rep.  777. 

89  2  Washburn  on  Real  Prop.  339 ;  Tud.  Ld.  Cas,  129 ;  Bane  v.  Bean,  03 
Mich.  652,  30  N.  W.  Rep.  373;  Autenreith  v.  St.  Louis,  etc.,  R.  R.  Co., 
36  Mo.  App.  254;  Ladd  v.  City  of  Boston  (Mass.),  24  N.  E.  Rep.  858. 
"  A  mandatory  injunction  for  the  removal  of  a  building  obstructing 
ancient  lights  should  not  be  granted  in  an  ordinary  case  where  damages 
would  be  an  adequate  remedy."  Colls  v.  Home  &  Colonial  Stores  (Eng. 
1904),  73  Law  J.  Ch.  484  (1904),  App.  Cas.  179,  90  Law.  T.  687,  53 
Wkly.  Rep.  30,  20  Times  Law  R.  475. 

"Patterson  v.  Phila.,  etc.,  R.  R.  Co.,  8  Pa.  Co.  Ct.  186;  Phillips  r. 
Dressier,  122  Ind.  414,  24  N.  E.  Rep.  226;  Ames  v.  Shaw,  19  Atl.  Rep. 
831,  82  Me.  379;  Joslin  v.  Sones  (Iowa),  45  N.  W.  Rep.  917;  Grafton 
V.  Moir,  9  N.  Y.  S.  3;  Spalding  r.  Bemiss  (Ky.),  1  S.  W.  Rep.  468;  Alc- 
Kenzie  v.  Elliott  (111.),  24  N.  E.  Rep.  965;  Tyler  v.  Cooper,  47  Hun  94; 
Smith  V.  Holloway  (Ind.),  24  N.  E.  Rep.  886;  Edgar  v.  Stevenson,  70 
Cal.  286,  11  Pac.  Rep.  704.  See  Hay  v.  Coleman  (N.  Y.  1905),  73  N.  E. 
Rep.  1125,  on  measure  of  damages. 

40  625 


§  435  EASEMENTS.  [PART   II. 

that  by  non-user  the  first  has  been  lost.**  Mere  non-user, 
even  though  for  twenty  years,  will  not  of  itself  extinguish 
the  easement  unless  there  has  been  adverse  possession."  It 
must  be  accompanied  with  the  express  or  implied  intention 
of  abandonment,  and  the  owner  of  the  servient  estate,  act- 
ing upon  the  intention  of  abandonment  and  the  actual  non- 
user,  must  have  incurred  expenses  upon  his  own  estate.*' 
The  three  elements,  non-user,  intention  to  abandon  and 
damage  to  the  owner  of  the  servient  estate,  must  concur  in 
order  to  extinguish  the  easement.  In  cases  of  easements 
created  by  prescription  the  last  element  is  not  considered 
essential.**  The  easement  may  also  be  destroyed  when  the 
owner  of  the  dominant  estate  gives  a  license  to  the  owner 
of  the  servient  estate  to  perform  or  do  certain  acts  upon  the 
servient  estate,  the  performance  of  which  will  effectually 
prevent  the  enjoyment  of  the  easement.  The  execution  of 
the   license  will  destroy  or  extinguish  the  easement,   since 

41  Liggins  V.  Inge,  7  Bing.  682 ;  Ward  v.  Ward,  7  Exch.  838 ;  Shaffer 
V.  State  Uank,  37  La.  Ann.  242 ;  Snell  V.  Leavitt,  39  Hun  227. 

42  Veghte  V.  R.  W.  P.  Co.,  4  C.  E.  Green  (N.  J.)  142;  see  also  Horner 
V.  Stillwell,  35  N.  J.  L.  307;  Pratt  V.  Sweetser,  68  Me.  344;  Eddy  t?. 
Chace,  140  Mass.  471. 

43  Eddy  V.  Chace,  140  Mass.  471;  Poison  v.  Ingram,  22  S.  C.  541; 
Tyler  v.  Cooper,  47  Hun  94;  Whitney  v.  Wheeler  Cotton  Mills  (Mass.), 
24  N.  E.  Rep.  774;  Vogler  v.  Geiss,  51  Md.  407.  See  also  Pope  V.  O'Hara, 
48  N.  Y.  446;  Poison  v.  Ingram,  22  s.  c.  541;  Hamilton  V.  Farrar,  128 
Mass.  492 ;  King  v.  Murphy,  140  Mass.  254 ;  Central  Wharf,  etc.,  Crop. 
V.  Proprietors  of  India  Wharf,  123  Mass.  567;  Johnston  v.  Hyde,  32  N. 
J.  446;  see  also  Hulme  V.  Shreve,  3  Green's  Ch.  (N.  J.)  116;  Merritt  v, 
Parker,  Coxe  (N.  J.)  460;  Jewett  v.  Whitney,  43  Me.  242.  "Abandon- 
ment is  a  matter  of  intention,  and  consists  in  the  giving  up  of  a  thing 
absolutely  without  reference  to  any  particular  person  or  purpose.  There 
can  be  no  abandonment  to  a  definite  person."  Norman  v.  Corbley 
(Mont.  1905),  79  Pac.  Rep.  1059. 

44  Jewett  V.  Jewett,  16  Barb.  (N.  Y.)  150;  see  also  Pope  v.  O'Hara,  48 
N.  Y.  446;  Eddy  v.  Chace,  140  Mass.  471;  Bronson  v.  Coffin,  108  Mass. 
175;  Knecken  v.  Voltz,  110  111.  264;  Day  v.  Walden,  46  Mich.  575; 
Steere  v.  Tiffany,  13  R.  I.  568;  Louisville,  etc.,  R.  Co,  v.  Covington,  2 
Bush  (Ky.)  526;  Wilder  v.  St.  Paul,  12  Minn.  192. 

626 


CH.   XVII.]  EASEMENTS.  §  436 

the  license  is  irrevocable  after  execution.*'  Finally,  any 
actions  on  the  part  ctf  the  owner  of  the  dominant  estate, 
which  increase  the  burden  upon  the  servient  estate  and  which 
so  materially  change  the  easement,  as  that  it  cannot  be 
restored  to  its  original  condition,  will  operate  in  a  discharge 
of  the  servient  estate  from  the  burden  of  the  easement. 
But  if  the  increase  in  the  burden  can  be  separated  from  the 
original  easement,  the  latter  will  still  remain.**  In  the  same 
way  as  easements  may  be  acquired  by  prescription,  so  may 
they  also  be  lost  or  extinguished.*'  This  subject  is  similar 
in  its  character,  and  is  allied  to  the  subject  of  loss  by  aban- 
donment. 

§  436.  Kinds  of  easements. —  The  easements  most  commonly 
known  are  right  of  way,  light  and  air,  water,  support,  and 
party  walls.  Many  other  servitudes  may  be  imposed  upon 
the  land,  but  a  discussion  of  the  classes  just  mentioned  will 
be  sufficient  to  illustrate  the  general  principles. 

45  Winter  V.  Brockwell,  8  East  308 ;  Liggins  v.  Inge,  7  Bing.  682 ; 
MeConnell  v.  Am.  Bronze,  etc.,  Co.,  41  N.  J.  Eq.  447;  Morse  v.  Copeland, 
2  Gray  (Mass.)  302.    Compare  Dyer  v.  Sandford,  9  Mete.  (Mass.)  395. 

48  Luttrell's  Case,  4  Rep.  87 ;  Saunders  v.  Newman,  1  B.  &  Aid.  258 ; 
Garrett  t?.  Sharp,  3  A.  &  E.  325;  Blanchard  v.  Bridges,  4  A.  &  E.  176; 
Carpenter  v.  Graber,  66  Tex.  465;  1  S.  W.  Rep.  178;  llicox  v.  Chicago, 
etc.,  B.  R.  Co.  (Mich.),  44  N.  W.  Rep.  143;  Prescott  v.  White,  21  Pick. 
(Mass.)  341;  Cary  v.  Daniels,  8  Mete.  (Mass.)  466;  Thompson  v.  Uglow, 
4  Ore.  369;  Blaisdell  v.  Stephens,  14  Nev.  17;  Hall  v.  McCaughey,  51  Pa. 
St,  43;  Kaler  v.  Beaman,  49  Me.  207;  Schaffer  v.  State  Bank,  37  La. 
Ann.  242;  Jaqui  v.  Johnson,  27  N.  J.  Eq.  552;  Darlington  v.  Painter,  7 
Barr  (Pa.)  473;  Stevenson  v.  Stewart,  7  Phila.  293;  Evangelical,  etc.. 
Home  V.  Buffalo  Hydraulic  Assn.,  64  N.  Y.  563;  Roberts  v.  Roberts,  55 
N.  Y.  275;  Wynkoop  v.  Burger,  12  Johns.  (N.  Y.)  222;  Stiles  V.  Hooker, 
7  Cow.   (N.  Y.)  266;  Huson  v.  Young,  4  Lans.   (N.  Y.)  63. 

47  Clarke  v.  Gaffeney,  116  111.  362;  Veghte  V.  R.  W.  P.  Co.,  4  C.  E. 
Green  (N.  J.)  142;  see  also  Homer  v.  Stillwell,  35  N.  J.  L.  307;  Pratt 
V.  Sweetser,  68  Me.  344;  Eddy  v.  Chance,  140  Mass.  471.  "An  agreement 
surrendering  a  right  of  way  by  necessity  is  an  instrument  required  to 
I>e  recorded,  under  the  statute  providing  for  the  record  of  every  convey- 
ance of  lands,  tenements,  or  hereditaments."  Dablberg  v.  Haeberle  (N» 
J.  Sup.  1904),  59  Atl.  Rep.  92. 

627 


§  438  EASEMENTS,  [tART    II. 

§  437.  Bight  of  way. —  Rights  of  this  character  are  divided 
into  private,  where  the  right  is  in  favor  of  one  or  more 
private  individuals,  and  is  appurtenant  to  an  estate  owned 
by  them,  and  public,  where  it  is  enjoyed  by  the  public  gener- 
ally. They  are  easements  imposed  upon  another's  land, 
authorizing  certain  persons  or  the  public,  as  the  case  may  be, 
to  pass  over  it,  in  pursuit  ct  specific  or  general  objects. 

§  438.  A  private  way. —  May  be  c.  sated  by  express  grant, 
or  it  may  be  implied  from  the  circum  5tances  surrounding  the 
estate  granted  (these  are  called  ways  of  necessity),  or  it 
may  further  be  acquired  by  prescription.  A  way  acquired 
for  a  particular  mode  of  use  will  not  be  extended  so  as  to 
include  the  right  to  use  it  in  some  other  manner.  Thus,  if 
the  right  be  limited  to  a  foot-path,  it  cannot  be  used  as  a 
carriage-way  or  horse-way.  Such  an  extension  of  the  right 
would  be  an  act  of  trespass,  and  render  the  owner  of  the 
dominant  estate  liable  for  damages  to  the  owner  of  the 
servient  estate.  This  would  be  the  case,  even  though 
the  burden  upon  the  servient  estate  has  not  been  ma- 
terially increased.**  Neither  can  the  way  be  used  for 
the  benefit  of  any  other  estate  but  the  one  to  which  the 
easement  is  appurtenant.*®  A  right  of  way  may  be  granted 
subject  to  a  condition  and  limitation,  and  the  right  in  such 

*8  Brunton  v.  Hall,  1  Gale  &  D.  207 ;  Cowling  v.  Higginson,  4  Mees.  & 
W.  245;  Ballard  v.  Tyson,  1  Taunt.  279;  Allan  v.  Gourme,  11  A.  &  E. 
759;  French  v.  Marstin,  24  N.  H.  440,  32  N.  H.  316;  Kirkham  v.  Sharp, 

1  Wharf.  323.  But  a  general  right  of  way  will  be  inferred  from  evidence 
that  the  way  has  been  used  in  every  manner  necessary  for  the  full  en- 
joyment of  the  dominant  estate.  Parks  V.  Bishop,  120  Mass.  340,  21 
Am.  Eep.  519.  For  cases  on  the  implied  right  of  way  on  surface,  as 
incident  to  right  to  mine,  see  White,  Mines  &  Min.  Rem.,  Sec.  219,  p. 
293,  and  cases  cited;  Chartiers  Coal  Co.  v.  Mellors,  152  Pa.  St.  286. 

49  Colchester  v.  Roberts,  4  Mees.  &  W.  769 ;  Willia'ms  v.  James,  L.  R. 

2  C,  B.  580;  Davenport  v.  Lamson,  21  Pick.  72;  French  v.  Marstin,  24 
N.  H.  440,  32  N.  H.  316;  Hayes  V.  De  Vity,  141  Mass.  233;  Brightman 
V.  Chaping,  1  Atl.  Rep.  412,  15  R.  I.  166;  Reise  v.  Enoa  (Wis.),  45  N. 
W.  Rep.  414. 

628 


CH.    XVII.]  EASEMENTS.  §  439 

cases  cannot  be  claimed  after  the  breach  of  the  condition 
or  happening  of  the  limitation.'"  Where  the  way  is  ac- 
quired by  express  or  implied  grant,  the  owner  of  the  servient 
estate  has  the  right  to  lay  out  the  way  in  whatever  manner 
will  be  most  convenient  to  him,  and  will  at  the  same  time 
secure  to  the  owner  of  the  dominant  estate  the  full  enjoyment 
of  the  easement.  But  if  the  owner  of  the  servient  estate 
refuses  to  do  this,  the  owner  of  the  dominant  estate  may  exer- 
cise the  power.  Once  the  way  has  been  laid  out,  it  cannot 
be  changed  by  either  party  without  the  consent  of  the 
other.'*  Private  ways  may  be  acquired  also  by  prescrip- 
tion." 

§  439.  Ways  of  necessity. —  A  way  of  necessity  exists  where 
the  land  granted  is  completely  environed  by  land  of  the 
grantor,  or  partially  by  his  land,  and  the  land  of  strangers. 
The  law  implies  from  these  facts  that  a  right  of  way  over  the 
grantor's  land  was  granted  to  the  grantee,  as  appurtenant 
to  the  estate.'^  Inasmuch  as  the  implication  is  raised  from 
the  existence  of  a  necessity,  the  easement  expires  with  the 
cessation  of  the  necessity,  as,  for  example,  when  a  new  way 
is  acquired.'*  When  such  a  necessity  exists  as  will  create 
by  implication  a  right  of  way,  is  a  question  of  fact,  deter- 
mined by  the  circumstances  of  each  particular  case.  Mere 
inconvenience  will  not  constitute  such  necessity.  It  must 
be  a  strict  necessity;  but  excessive  expense  in  procuring 
another  way  would  make  it  a  case  of  strict  necessity."     Rear 

BO  Hall  V.  Armstrong,  53  Conn.  554. 

51  Henning  v.  Burnett,  8  Exch.  187 ;  Northam  v.  Hurley,  1  E.  &  B. 
666 ;  Holmes  v.  Seeley,  19  Wend.  507 ;  French  v.  Williams,  82  Va.  462. 

52  Gay  V.  Boston  &  Albany  R.  R.  Co.,  141  Mass.  407. 

BSRogerson  V.  Shepherd,  33  W.  Va.  307,  10  S.  E.  Rep.  632;  Kripp  V. 
Curtis,  71  Cal.  62,  11  Pac.  Rep.  879.  But  see,  as  to  necessity  that 
land  sold  should  be  surrounded  by  grantor's  land.  Wills  v.  Reid  (Miss. 
1905),  38  So.  Rep.  793. 

84Pettingill  v.  Porter,  8  Allen  9;  Baker  v.  Crosby,  9  Gray  421;  Vlial 
V.  Carpenter,  14  Gray  126;  Thomas  v.  Bertram,  4  Bush  317;  Brown  v. 
Berry,  6  Coldw.  (Tcnn.)  98. 

BoPettingill  v.  Porter,  B  Allen  1;  OTlorke  r.  Smith,  11  R.  I.  259,  23 

629 


§  441  EASEMENTS.  [PART   11. 

entrances  to  city  lots  cannot  be  claimed  as  ways  of  necessity.*' 
If  a  way  of  necessity  is  implied  for  any  purpose,  it  may  be 
used  for  any  and  all  purposes  for  which  private  ways  are 
generally  adapted."' 

§  440.  Who  must  repair  the  way. —  In  the  absence  of  an 
express  agreement,  the  grantee  of  the  right  of  way  must 
keep  the  way  in  repair;  and  if  he  fails  to  do  so,  he  has  no 
right  to  use  other  adjacent  land  of  the  servient  estate  because 
the  way  has  become  impassable.  But  the  obligation  to  repair 
may  by  covenant  be  imposed  upon  the  owner  of  the  servient 
estate.  In  such  a  case,  if  the  latter  violates  the  agreement, 
the  grantee  of  the  way  may,  if  it  is  necessary,  pass  over 
the  adjoining  land  of  the  servient  estate.** 

§  441.  Public  or  highways. —  Here  no  reference  is  made  to 
such  highways  where  the  fee  sipiple  title  to  the  land  is  in 
the  State  or  municipal  corporation.  In  such  cases  there  can 
be  no  question  in  respect  to  easements.  This  section  relates 
to  such  cases  where  the  land,  over  which  the  highway  ex- 
tends, belongs  to  the  owners  of  the  contiguous  land,  and  a 
right  of  way  over  it  is  enjoyed  by  the  public.*''     Where  it  is 

Am.  Rep.  440;  Bartlett  r.  Prescott,  41  N.  H.  493;  Barr  v.  Flynn,  70  Mo. 
383;   Fischer  v.  Laack    (Wis.),  45  N.  W.  Rep.    104;   Morse  v.  Benson 

(Mass.),  24  N.  E.  Rep.  675;  Pearson  V.  Allen  (Mass.),  23  N.  E.  Rep. 
731;  Nat.  Exeh.  Bank  v.  Cunningham,  46  Ohio  St.  5?5,  22  N.  E.  Rep. 
924;  Murphy  v.  Lee,  144  Mass.  371;  Bell  v.  Todd,  51  Mich.  21;  Smyles 
V.  Hastings,  22  N.  Y.  217;  approving  24  Barb.  (N.  Y.)  44;  Pratt  v.  B. 
C.  R.  Co.,  19  Hun  (N.  Y.)  30;  Foster  v.  Buffalo,  64  How.  Pr.  (N.  Y.) 
127;  Wills  V.  Reid  (Miss.  1905),  38  So.  Rep.  793. 

86  Fischer  v.  Laack    (Wis.),  45  N.   W.   Rep.    104;    Smith  v.  Griffin 

(Colo.),  23  Pac.  Rep.  905, 
Bf  Whittier  v.  Winkley,  62  N.  H.  338. 

58  Pomfret  V.  Ricord,  1  Saund.  323 ;  Bullard  V.  Harrison,  4  M.  &  S. 
387 ;  Jones  v.  Percival,  5  Pick.  485 ;  Hamilton  v.  White,  5  N.  Y.  9. 

59  The  right  of  the  public  to  the  use  of  a  highway,  where  the  soil  or 
bed  belongs  to  the  adjoining  owners,  is  not  strictly  an  easement;  it  is  an 
incorporeal  hereditament  in  the  nature  of  an  easement.  Since  the  sub- 
ject of  highways  is  not  to  be  treated  at  any  length,  it  is  discussed  in 

630 


CH.    XVn.]j  EASEMENTS.  §  441 

doubtful  whether  the  grantor  intended  to  convey  an  easement 
or  a  fee  simple  title  to  the  land,  the  presumption  is  held  to 
be  in  favor  of  the  grant  of  an  easement.®"  Such  highways 
are  established  either  by  dedication  by  the  owners  of  the 
land,  or  by  appropriation  by  the  State,  under  the  right  of 
eminent  domain.  In  the  case  of  dedication  no  formal  acts 
are  necessary  to  the  creation  of  the  way.  Any  act  or  acts 
such  as  conveyances  of  lots  bounding  on  such  streets,  platting 
and  recording  a  map,  in  which  the  streets  are  laid  out,  and 
the  like,  which  show  a  clear  intention  to  dedicate  the  land  to 
the  public  use  will  be  sufficient.®^  The  conveyance  of  lands 
for  the  purpose  of  a  highway  may  always  be  subjected  to 
conditions,  restrictions  and  limitations  as  to  use,  which  can 
only  be  removed  by  the  exercise  of  the  right  of  eminent 
domain.®^  A  highway  may  also  be  created  by  custom,  as 
from  long  use  by  the  public,  although  there  had  been  no 
dedication  by  the  owner."^     To  make  the  dedication  complete 

this  connection  to  avoid  the  necessity  of  a  separate  subdivision  of  this 
chapter. 

«oN.  Y.  &  N.  E.  R.  R.  Co.  v.  City  of  Providence  (R.  I.),  19  Atl.  Rep. 
759. 

61  Pope  V.  Town  of  Union,  18  N.  J.  Eq.  282 ;  Hawley  v.  City  of  Balti- 
more, 33  M.  D.  270;  Buchanan  v.  Curtis,  25  Wis.  99,  3  Am.  Rep,  23; 
Point  Pleasant  Land  Co.  V.  Cranmer,  40  N.  J.  Eq.  81;  Re  Pearl  St.,  Ill 
Pa.  St.  565;  Harrison  V.  Augusta  Factory,  73  Ga.  447;  Brooks  v. 
Topeka,  34  Kan.  277;  Shea  t;.  Ottumwa,  66  Iowa  39;  State  v.  Schwin,  65 
Wis.  207;  Dorman  v.  Bates  Mfg.  Co.,  82  Me.  438;  Johnson  v.  Shelter 
Island  Grove,  etc.,  Co.,  47  Hun  374;  In  re  Ladue,  118  N.  Y.  213,  23  N. 
E.  Rep.  465.  The  evidence  of  an  intention  to  dedicate  the  land,  must  be 
clear  and  manifest.  Manchester  v.  Hoag,  66  Iowa  649;  Robinson  c 
Coffin,  2  Wash.  251.  See  Mott  v.  Ens  (N.  Y.  1904),  90  N.  Y.  S.  608, 
97  App.  Div.  586;  Providence  Steamboat  Co.  v.  Fall  River  (Mass.  1904), 
72  N.  E.  Rep.  338. 

82  Odneal  v.  City  of  Sherman,  77  Texas  182. 

«8Holt  V.  Sargent,  15  Gray  97;  Compton's  Petition,  41  N.  H.  197; 
State  t".  Van  Derveer,  57  N,  J.  L.  259;  South  Branch  R.  R.  Co.  v. 
Parker,  41  N.  J.  Eq.  489;  Strong  t?.  Makeever,  102  Ind.  578;  Toof  v. 
Decatur,  19  111.  App.  204;  Hart  v.  Red  Cedar,  63  Wis.  634;  Fritsche  v. 
Fritsche  (Wis.),  45  N.  W.  Rep.  1088.  But  see  Forres  v.  Falgoust,  37 
La.  An.  497;  Tucker  v.  Conrad,  103  Ind.  349,  where  it  is  held  that  mere 

631 


§  442  EASEMENTS.  [PART    II, 

and  binding  upon  the  public,  there  must  be  an  acceptance 
of  the  same.  But  continued  use  of  the  land  in  conformity 
with  the  dedication  will  be  sufficient  evidence  of  acceptance. 
A  formal  acceptance  is  not  necessary."*  A  dedication  to 
public  use  as  a  highway  or  other  thoroughfare  is  not  affected 
by  an  attempted  appropriation  of  the  land  to  other  public 
uses  in  the  exercise  of  the  right  of  eminent  domain.  The 
defective  condemnation  may  be  set  aside,  but  the  dedication 
as  a  highway  survives,  and  the  original  owner  cannot  main- 
tain ejectment  for  the  land.*" 

§  442.  Light  and  air. —  There  may,  like  a  right  of  way,  be 
an  easement  in  the  light  and  air  coming  from  over  the 
land  of  an  adjacent  owner,  which  would  prevent  its  obstruc- 
tion by  any  erections  upon  the  adjoining  land  near  the  bound- 
ary line.  Thus,  the  owner  of  a  house  may  acquire  an 
easement  in  the  adjoining  land,  to  permit  the  free  passage 
of  light  and  air  through  his  windows.  This  easement,  in 
its  more  important  features,  resembles  the  right  of  way, 
which  has  been  already  discussed.  It  will  not,  therefore, 
be  necessary  to  present  in  detail  the  law  upon  the  subject. 
Like  the  right  of  way,  the  owner  of  the  dominant  estate  can- 
not do  anything  which  will  increase  the  burden  upon  the 
servient  estate.  Any  act,  such  as  closing  windows  and  open- 
ing new  ones,  increasing  the  size  of  the  windows,  or  removing 
the  house,  which  operates  in  changing  or  increasing  the 
burden  upon  the  servient  estate,  will  destroy  the  easement.'* 

Tiser  of  the  land  as  a  highway,  without  some  evidence  of  an  adverse 
claim,  will  not  give  the  public  any  vested  rights  in  the  land.  Stuart  V. 
Frink,  94  N.  C.  487,  55  Am.  Rep.  618;  State  v.  Horn,  35  Kan.  717. 

e*  Muzzey  V.  Davis,  54  Me.  361;  Cole  v.  Sprowle,  35  Me.  161;  Pope  f/. 
Town  of  Union,  18  N.  J.  Eq.  282;  Manderschid  v.  Dubuque,  29  Iowa  73; 
Barteau  V.  West,  23  Wis.  416;  Buchanan  v.  Curtis,  25  Wis.  99,  3  Am. 
Rep.  23;  Brown  v.  Kansas  City,  etc.,  R.  R.  Co.,  20  Mo.  App.  427. 

65  Moses  V.  St.  Louis  Sectional  Dock  Co.,  84  Mo.  242. 

eeLuttrell's  Case,  4  Rep.  87;  Tud.  Ld.  Cas.   132,  133;  Cherrington  ». 
Abney  Mill,  2  Vern.  646;  Moore  V.  Rawson,  3  B.  &  C.  332;  Blanchard  V. 
Bridges,  4  A.  &  E.  176. 
632 


CH.    XVn.]^  EASEMENTS.  §  443 

§  443.  How  acquired. —  In  England  an  easement  of  light 
and  air  may  be,  and  is  generally,  acquired  by  prescription  or 
long  user.  An  uninterrupted  enjoyment  of  twenty  years 
will  be  sufficient  to  create  the  easement.  It  is  necessary, 
however,  that  there  should  be  a  building,  for  the  benefit  of 
which  the  easement  is  acquired.**^  There  can  be  no  such  ease- 
ment in  favor  of  an  open  lot.  The  extent  of  the  ease- 
ment, therefore,  depends  upon  the  amount  of  enjoyment 
derived  from  it  during  the  period  of  prescription.®*  During 
the  period  of  prescription  the  right  is  inchoate,  and  may  be 
defeated  by  the  erection  on  the  adjacent  land  of  any  struc- 
ture which  will  exclude  the  light  and  air,  and  interrupt  the 
adverse  enjoyment.  The  owner  of  the  adjoining  land  cannot 
be  prevented  from  imposing  such  barriers  to  the  acquisition 
of  the  easement.**  In  this  country  the  right  to  acquire  the 
easement  by  prescription  has  not  met  with  general  recogni- 
tion. On  the  contrary,  the  tendency  is  to  deny  the  right 
altogether.  At  the  present  day  the  courts  of  New  Jersey, 
Illinois,  and  Louisiana  are  the  only  ones  which  still  uphold 
this  doctrine,''"  while  it  is  repudiated  by  the  other  courts.'^ 
In  some  of  the  States  it  is  held  that,  where  one  person  o^vns 
two  contiguous  lots,  and  sells  one  of  them,  which  has  a  build- 

«7  Calls  V.  Home  &  Col.  Stores  (Eng.  1904),  73  Law  J.  Ch.  484,  90 
Law  T.  687,  53  Wkly.  Rep.  30,  20  Times  L.  Rep.  475. 

88  Martin  v.  Goble,  1  Comp.  322;  Moore  f.  Rawson,  3  B.  &  C.  332; 
Clark  V.  Clark,  L.  R.  1  Ch.  16;  Robers  v.  McCord,  1  Mo.  &  Rob.  230. 

«»  Smith  V.  Kendrick,  7  C.  B.  515,  565;  Moore  v.  Rawson,  3  B.  &  C. 
332;  Corcoran  v.  Nailor,  6  Mackey  580. 

70  Ropeson  v.  Pittinger,  2  N.  J.  Eq.  57 ;  Durel  v.  Boisblanc,  1  La.  An. 
407;  Gerber  v.  Grubell,  16  111.  217. 

71  Collier  v.  Pierce,  6  Gray  18 ;  Rogers  v.  Sawin,  19  Gray  376 ;  Carrig 
V  Dee,  14  Gray  583;  Keats  v.  Hugo,  115  Mass.  204,  15  Am.  Rep.  80; 
Randall  v.  Sanderson,  111  Mass.  114;  Carring  v.  Dee,  14  Gray  (Mass.) 
583;  Richardson  v.  Pond,  15  Gray  (Mass.)  387;  Mullen  v.  Strieker,  19 
Ohio  St.  135;  Haverstick  v.  Sipe,  33  Pa.  St.  368;  Stein  v.  Hauck,  56 
Ind.  65;  Turner  v.  Thompson,  58  Ga.  268;  Parker  f.  Foote,  19  Wend. 
(N.  Y.)  309;  Morrison  v.  Marquardt,  24  Iowa  35;  Pierre  v.  Fernald,  26 
Me.  436;  Cherry  v.  Stein,  11  Md.  1.  But  see,  Anthony  v.  Kennard 
Bldg.  Co.  (Mo.  1905),  87  S.  W.  Rep.  921. 

633 


§  444  EASEMENTS.  [PART   U. 

ing  on  it  with  windows  opening  on  the  remaining  lot,  an 
easement  passes  to  the  grantee  to  have  free  passage  of  light 
and  air  over  the  adjoining  lot.'^  But  this  rule  is  repudiated 
by  some  of  the  other  courts,''  and  perhaps  the  better  rule  is, 
that  such  an  easement  will  be  implied  from  the  existence  of 
windows  overlooking  the  other  lot  of  the  grantor,  only  when 
it  is  really  necessary  to  the  enjoyment  of  the  estate  granted.'^* 
It  is  possible,  however,  although  very  unusual,  to  acquire  a 
right  to  the  easement  of  light  and  air  by  express  grant  in 
any  State,  and  the  same  rules  of  construction  are  applied  to 
them  which  govern  in  cases  of  such  prescriptive  rights  under 
the  English  law.''' 

§  444.  Right  of  water. —  Where  a  stream  of  water  passes 
over  the  land  of  two  or  more  adjacent  owners,  it  has  been 
established,  upon  the  doctrine  of  law  that  there  can  be  no 
right  of  property  in  water  except  as  to  its  use,  that  the 
adjacent  owners  have  mutual  easements  upon  the  soil  of  each 
other  for  the  free  and  unrestricted  flow  of  water.  This  rule, 
however,  applies  in  its  full  force  only  to  the  natural  streams. 
The  riparian  owners  have  the  right  to  use  the  water  to  a 
reasonable  extent,  but  cannot  so  use  it  as  to  diminish  the 
flow,  corrupt  the  water,'®  or  to  dam  it  up,  and  cause  an  over- 

72  Jones  V.  Jenkins,  34  Md.  1,  6  Am.  Rep.  1 ;  Hubbard  v.  Town,  33  Vt. 
295. 

73  Keats  T.  Hugo,  115  Miss.  204,  15  Am.  Rep.  80;  Haverstick  v.  Sipe, 
33  Pa.  St.  368;  Mullen  v.  Strieker,  19  Ohio  St.  135,  2  Am.  Rep.  379; 
Morrison  v.  Marquardt,  24  Iowa  35. 

74  Powell  V.  Simmes,  5  W.  Va.  1,  13  Am.  Rep.  629;  Turner  v.  Thomp- 
son, 58  Ga.  268,  24  Am.  Rep.  497. 

75  Mahan  v.  Brown,  13  Wend.  263;  McCready  v.  Thompson,  Dudley 
(S.  C.)  113;  Grimley  v.  Davidson  (HI.),  24  N.  E.  Rep.  439.  See  also 
cases  cited  in  preceding  note. 

76  Wash.  V.  Oilman,  64  Me.  163,  18  Am.  Rep.  246 ;  Richmond  Manuf . 
Co.  V.  Atlantic  DeLaine  Co.,  10  R.  I.  106,  14  Am.  Rep.  658;  Jacobs  v. 
Allard,  42  Vt.  303,  1  Am.  Rep.  331.  But  pollution  of  the  water  of  a 
stream  by  sewage  is  not  actionable  against  the  city,  unless  the  pollu- 
tion results  from  a  negligent  construction  or  use  of  the  sewers.  The  city 
is  not  responsible  in  damages,  if  it  is  the  result  of  a  defective  plan  of 

634 


CH.    XVII.]  EASEMENTS.  §  444 

flow  of  the  land  above  or  diminish  the  volume  of  the  stream 
below.^^  But  if  the  stream  is  prevented  from  inundating 
lowlands  in  time  of  freshets  there  is  no  liability  for  so  doing 
although  the  volume  of  the  stream  may  be  thereby  increased 
to  the  greater  damage  of  the  banks  below.^*  The  stream 
cannot  be  diverted  from  its  regular  course,  if  by  so  doing 
injury  results  to  the  owners  above  or  below.^^  To  what 
extent  the  water  may  be  used  by  a  riparian  owner  depends 
upon  the  circumstances  of  each  case.  And  the  only  general 
rule  which  can  be  stated  is,  that  it  must  not  be  so  used  as  to 
produce  a  perceptible  damage  to  the  other  proprietors.^ 
The  detention  of  water,  if  it  is  for  a  reasonable  use,  will 

sewerage.  Merrifield  v.  City  of . Worcester,  110  Mass.  211,  14  Am.  Rep. 
592.  For  presentation  of  the  "  American  common  law,"  relating  to  ease- 
ments in  water  courses,  as  pertaining  to  mining  on  the  public  domain,  see 
White,  Mines  &  Min.  Rem.,  Sees.  209,  210  et  sub. 

7T  Sampson  17.  Hoddinott,  1  C.  B.  ( x.  s. )  590 ;  Colburn  V.  Richards, 
13  Mass.  420;  Anthony  v.  Lapham,  5  Pick.  175;  Kankakee,  etc.,  R.  R. 
Co.  V.  Horan,  30  111.  App.  553;  affirming  23  N.  E.  621;  Miss.,  etc.,  R. 
R.  Co.  V.  Archibald  (Miss.),  7  So.  Rep.  212.  And  where  the  erection 
of  a  dam  is  authorized  by  legislative  enactment,  the  owner  of  the  dam 
must  make  compensation  to  all  riparian  proprietors,  who  have  been  in- 
jured thereby.  Lee  V.  Pembroke  Iron  Co.,  57  Me.  481,  2  Am.  Rep.  59; 
Gray  v.  Harris,  107  Mass.  492,  9  Am.  Rep.  61;  Proctor  v.  Jennings,  6 
Nev.  83,  3  Am.  Rep.  240;  Kankakee,  etc.,  R.  R.  Co.  v.  Horan,  30  111.  App. 
553;  affirming  23  N.  E.  Rep.  621. 

78  St.  Louis,  etc.,  R.  R.  Co.  v.  Schneider,  30  Mo.  App.  620. 

'9  Elliott  V.  Fitchburg  R.  R.  Co.,  10  Cush.  191;  Macomber  v.  Godfrey, 
108  Mass.  219,  11  Am,  Rep.  349;  Tuthill  v.  Scott,  43  Vt.  525,  5  Am.  Rep. 
301.  Water  may  be  diverted  from  the  channel  for  any  reasonable  use, 
but  it  can  only  be  detained  as  long  as  it  is  necessary  and  reasonable, 
and  it  must  be  returned  to  the  channel,  before  it  passes  to  the  land  of 
the  riparian  proprietor  below.  Clinton  f.  Myers,  46  N.  Y.  511,  7  Am. 
Rep.  373;  Arnold  f.  Foot,  12  Wend.  330;  Miller  v.  Miller,  9  Pa.  St.  74; 
Pool  V.  Lewis,  46  Ga.  162,  5  Am.  Rep.  526. 

80  Mason  v.  Hill,  5  B.  &  Aid.  1 ;  Embrey  v.  Owen,  6  Exch.  353 ;  Merritt 
V.  Brinkerhoff,  17  Johns.  306;  PolKtt  v.  Long,  58  Barb.  20;  Arnold  v. 
Foote,  12  Wend.  339;  Clinton  v.  Myers,  46  N.  R.  511,  7  Am.  Rep.  373; 
Holeman  v.  Boiling  Spring  Co.,  14  N.  J.  Eq.  335;  Dumont  v.  Kellogg, 
29  Mich.  420,  18  Am.  Rep.  102;  Samuels  v.  Armstrong  (N.  Y.  1905),  93 
N.  Y.  S.  24;  Clark  v.  Allman  (Kan.  1905),  80  Pac.  Rep.  671. 

635 


§  445  EASEMENTS.  [PART   II. 

not  be  actionable,  even  though  it  may  cause  injury  to  the 
proprietors  below.  But  if  the  use  be  an  unusual  one,  then 
it  is  not  likely  that  the  rule  would  apply.'^  This  rule  is  well 
established  in  favor  of  mill  owners,  the  working  of  whose  mills 
by  the  water  prevents  its  use  for  a  similar  purpose  by  a  ripar- 
ian proprietor  below.  The  right  to  run  a  mill  in  such  cases, 
and  to  dam  up  the  water  for  that  purpose,  depends  upon  the 
priority  of  establishment.  He  who  first  creates  a  mill  upon 
the  banks  of  the  stream  obtains  a  prior  right  to  the  use  of 
the  stream  for  that  purpose,  and  if  the  quantity  of  water 
is  not  sufficiently  large  to  permit  the  running  of  more  than 
one  mill,  no  other  mill  can  be  erected.  If  a  second  mill  is 
erected  by  a  proprietor  above,  and  the  diversion  and  deten- 
tion of  water  for  the  purpose  of  the  mill  are  so  great  as  to 
diminish  materially  the  supply  of  water  to  the  first  mill, 
the  owner  of  the  latter  can  enjoin  such  detention  or  diver- 
sion of  the  water.®^  The  mill  owner  cannot,  under  any  cir- 
cumstances, so  dam  up  the  water  as  to  cause  it  to  overflow 
the  land  above,  or  to  divert  it  from  the  proprietor  below, 
although  in  some  States  by  statute  mill  owners  are  permitted 
to  inflict  such  injury  upon  the  adjoining  proprietors  by 
the  payment  in  compensation  in  the  way  of  damages,  the 
assessment,  and  recovery  of  which  are  regulated  by  the 
statutes.*' 

§  445.  Percolations  and  swamps  —  Surface  drainage. —  The 
above  statements  are  only  applicable  to  what  are  known  in 

81  Springfield  V.  Harris,  4  Allen  494;  Gould  v.  Boston  Duck  Co.,  13 
Gray  443;  Clinton  v.  Myers,  46  N.  Y.  511,  7  Am.  Rep.  373;  Pool  V. 
Lewis,  41  Ga.  162,  5  Am.  Rep.  526;  Whitney  v.  Wheeler  Cotton  Mills 
(Mass.),  24  N.  E.  Rep.  774. 

szLiggins  v.  Inge,  7  Ring.  682;  Mason  v.  Hill,  5  B.  &  Ad.  1 ;  Williams 
V.  Moreland,  2  B.  &  C.  910;  Bealey  v.  Shaw,  6  East  209;  Ang.  on  Wafc 
Cour.,  Sees.  130,  135;  Carey  v.  Daniels,  8  Mete.  466;  Calmount  v.  Whit- 
aker,  3  Rawle  84. 

83  Washburn  on  Ease.,  Ch.  3,  Sec.  5,  PI.  35-46 ;  Ang.  Wat.  Cour.,  Sec. 
482.     See,  for  right  to  divert  water  for  irrigation  purposes,  Hage  v. 
Eaton  (U.  S.  C.  C.  Colo.  1906),  135  Fed.  Rep.  411. 
636 


CH.    XVII.]  .  EASEMENTS.  §    445 

the  law  as  natural  water  courses.  There  must  be  a  regular 
stream  flowing  in  a  regular  channel,  whether  on  the  surface 
or  under  ground,  in  order  that  such  rights  may  be  claimed  in 
it.  If  the  water  constituted  a  swamp  upon  the  adjacent 
land,  which  flowed  in  no  fixed  channel,  or  if  it  percolated 
through  the  soil  from  one  tract  of  land  to  another,  the  rules 
enunciated  in  the  preceding  paragraph  do  not  apply.  The 
owner  of  the  land  may  draw  off  the  water  from  the  swamp, 
or  divert  the  percolation,  so  as  to  collect  the  water  in  a  well 
upon  his  own  land,  notwithstanding  it  results  in  serious 
detriment  to  the  adjacent  proprietor.^*  But  if  the  owner  of 
the  land  is  actuated  by  malice,  as  where  he  pollutes  the 
water,  or  cuts  off  the  underground  current,  simply  for  the 
purpose  of  rendering  his  neighbor's  well  useless,  an  action 
would  lie  for  the  damage  thus  inflicted.'*  If  the  pipes  and 
other  conduits  can  be  so  arranged  that  one  well  need  not 
interfere  with  the  other,  as  in  the  case  of  the  artesian  wells,  the 
parties  will  be  required  to  observe  this  caution.*' 

In  draining  one's  land  of  surface  water,  no  action  will  lie 
if  it  be  allowed  to  flow  over  the  adjoining  land  through 
natural  channels.*^  It  is  sometimes  held  that  the  owner  of 
the  adjoining  land  may  prevent  such  overflow  of  his  land  by 
the  erection  of  barriers,  or  by  the  use  of  any  other  suitable 

«*  Ocean  Grove,  etc.,  Assn.,  v.  Asbury  Park,  Com.  n,  40  N.  J.  Eq.  447. 

ssRawstron  v.  Taylor,  11  Exch.  369;  Greenleaf  v.  Francis,  18  Pick. 
117;  Luther  v.  Winnisiraett  Co.,  9  Cush.  171;  Wilson  r.  City  of  Bed- 
ford, 108  Mass.  261,  11  Am.  Rep.  3.52;  Brown  v.  lllins,  25  Conn.  583; 
Village  of  Delphi  v.  Youmans,  45  N.  Y.  362,  6  Am.  Rep.  100;  Hanson  v. 
McCue,  4e  Cal.  303,  10  Am.  Rep.  299;  Hougan  v.  Milwaukee,  etc.,  R.  R. 
35  Iowa  558.  14  Am.  Rep.  502;  Burroughs  v.  Saterlee,  67  Iowa  396,  56 
Am.  Rep.  350. 

8«  Burroughs  v.  Saterlee,  67  Iowa  366,  56  Am.  Rep.  360;  Collins  v. 
Chartiers  Val.  Gas  Co.,  131  Pa.  St.  143,  18  Atl.  Rep.  1012.  See  also. 
Brown  v.  Armstrong  (Iowa  1905),  102  N.  W.  Rep.  1047;  Bryant  v. 
Merritt  (Kan.  1905),  80  Pac.  Rep.  600;  Tyrus  v.  R.  R.  (Tenn.  1905), 
80  S.  W.  Rep.  1074. 

•TSentner  r.  Tees.  132  Pa.  St.  216,  18  Atl.  Rep,  1104;  Boynton  v. 
Londey,  19  Nev.  69,  6  Pac.  Rep.  43. 

637 


§  446  EASEMENTS.  [PART  H. 

means.'*  And  while  this  is  without  doubt  a  sound  rule  in 
the  ease  of  urban  servitudes,  the  better  opinion  is,  at  least 
in  respect  to  drainage  on  farms  and  woodlands,  that  the 
upper  land  has  a  natural  right  to  natural  drainage  over  the 
land.*'  But  in  the  drainage  of  one's  land  it  is  not  per- 
missible to  direct  the  flow  of  the  water  upon  the  adjoining 
land  or  to  increase  the  volume  of  the  flow  by  the  construction 
of  a  drain  or  ditch.®**  Still,  it  is  permissible  by  the  use  of 
such  means  to  empty  the  water  into  a  natural  stream,  and 
if  the  volume  of  the  stream  is  thereby  increased  to  such  an 
extent  as  to  cause  damage  to  the  riparian  owners  below,  they 
are  without  remedy.*^  The  same  rule  applies  to  the  drain- 
age of  one 's  land  into  the  highway.** 

§  446.  Artificial  water  courses. —  The  rule  is  also  different 
where  the  water  course  is  artificial.  No  one  has  the  right 
to  establish  an  artificial  water  course  upon  the  land  of  an- 
other; but  if  the  latter  permits  its  construction  he  acquires 
no  easement  in  the  water,  and  cannot  compel  its  perpetual 
maintenance,  whatever  injury  he  might  suffer  from  its  dis- 
continuance. An  uninterrupted  enjoyment  of  the  artificial 
water  course  for  twenty  years  will  not  give  him  such  a  right. 
The  construction  of  the  water  course  being  only  for  certain 
purposes,  the  adjoining  owner  could  not  by  mere  enjoyment 

88  Greeley  v.  Maine  Cent.  R.  R.,  53  Me.  200.  Contra,  if  it  does  injury, 
Gerrish  v.  Clough,  48  N.  H.  9,  2  Am.  Rep.  165;  Ogburn  v.  Connor,  46 
Cal.  346,  13  Am.  Rep.  213. 

89  Farris  v.  Dudley,  78  Ala.  124,  56  Am.  Rep.  24 ;  Boyd  v.  Conklin,  54 
Mich.  583,  52  Am.  Rep.  831;  Abbott  V.  K.  C,  etc.,  R.  R.  Co.,  83  Mo. 
271,  53  Am.  Rep.  581;  Schneider  v.  Mo.  Pac.  R.  R.  Co.,  29  Mo.  App.  681. 

soWeidekin  V.  Sfielson,  17  111.  App.  461;  Beach  v.  Gaylord,  43  Minn. 
476,  45  N.  W.  Rep.  1095;  Chapel  v.  Smith  (Mich.),  45  N.  W.  Rep.  69; 
Weddell  V.  Hapner  (Ind.),  24  N.  E.  Rep.  368;  David  Reiser  v.  Rhodes 
(Pa.),  19  Atl.  Rep.  400. 

»i  Dickinson  v.  Worcester,  7  Allen  19 ;  Smith  v.  Kendrick,  7  C.  B. 
515;  Hoester  v.  Hemsath,  16  Mo.  App.  485;  Wagner  v.  Chaney,  19  111. 
App.  546;  Bryant  v.  Merritt  (Kan.  1905),  80  Pac.  Rep.  600. 

»2Huddleston  v.  West  Bellevue,  111  Pa.  St.  110. 
638 


CH.    XVn.]  EASEMENTS.  §  447 

acquire  a  prescriptive  right  to  its  continuance.  He  who 
creates  the  artificial  stream  may  stop  or  divert  it  when  he 
pleases,  but  at  the  same  time  he  cannot  maliciously  foul  the 
water  to  the  detriment  of  the  riparian  owners  below.®^ 

§  447.  Easements  in  water  conrses  and  surface  drainag^e. — 

The  various  rights  so  far  mentioned  are  natural  rights  inci- 
dent to  riparian  ownership,  implied  or  established  by  law. 
These  rights  are  enjoyed  independent  of  any  contract  or 
grant.  But  it  is  manifest  that  an  express  grant  may  operate 
in  enlarging,  diminishing  or  altogether  extinguishing,  the 
natural  rights.  They  may  be  varied,  and  new  rights  may  be 
acquired  by  prescription  ®*  or  grant.  An  express  grant  or 
prescription  will  alter  the  natural  or  common  law  rights  of 
the  riparian  owners "°  in  the  same  manner  as  the  creation  of 
express  and  special  easements  affects  the  rights  of  property 
in  other  cases.**®  The  same  rule  applies  to  the  right  of 
surface  drainage  and  the  maintenance  of  water  pipes  across 
another's  lands."^  But  in  order  that  such  a  right  may  be 
claimed  by  prescription,  the  right  must 'have  been  exercised 
during  the  statutory  period  of  limitation  in  defiance  of  or 

»8Arkwright  v.  Gell,  5  Mees.  &.  W.  203;  Mayor  v.  Chadwick,  11  A.  & 
E.  571;  Saunders  v.  Newman,  1  B.  &  Aid.  258;  Napier  v.  Bui  winkle,  6 
Rich.  317. 

9*  Whitney  v.  Wheeler  Cotton  Mills  (Mass.),  24  N.  E.  Rep.  774;  Cox 
V.  Clough,  70  Cal.  345;  Terry  v.  Smith,  47  Hun  333;  Keyser  v.  Covell, 
62  N.  H.  283;  Johnson  V.  Boorman,  63  Wis.  268;  McGeorge  V.  Hoffman 
(Pa.),  19  Atl.  Rep.  413. 

»5  See  Roe  v.  Redner  (N.  Y.  1904),  93  N.  Y.  S.  258. 

»« Manning  v  Wasdale,  5  A.  &  E.  758;  Stockport  Waterworks  v. 
Potter,  3  H,  &  C.  300;  ».  o.  31  L.  J.  Exch.  9;  McDaniel  v.  Cummings, 
83  Cal.  515,  22  Pac.  Rep.  216;  Peaslee  v.  Tower,  62  N.  H.  434;  Carleton 
Mills  Co.  V.  Silver,  82  Me.  215,  19  Atl.  Rep.  154;  Warner  v.  Cushman, 
82  Me.  164,  19  Atl.  Rep.  159;  Curtis  v.  La  Grande  Water  Co.  (Ore.), 
23  Pac.  Rep.  808;  Terry  V.  Smith,  47  Hun  333;  Whitney  v.  Wheeler 
Cotton  Mills  Co.  (Mass.),  24  N.  E.  Rep.  774. 

»T  Johnson  t?.  Knapp,  150  Mass.  267,  23  N.  E.  Rep.  40;  White  v.  Shel- 
don, 8  N.  Y.  S.  212;  Ribordy  v.  Pellachoud,  28  HI.  App.  303. 

639 


§  448  EASEMENTS.  [PART   II. 

adverse  to  the  claims  of  the  owner  of  the  servient  estate."" 
Where  special  rights  are  acquired  in  a  stream  of  water 
by  grant,  the  owner  of  the  dominant  estate  or  grantee  has 
no  right  to  make  such  use  of  the  water  as  will  inflict  greater 
injury  upon  the  other  riparian  owners  than  is  expressly  per- 
mitted by  the  terms  of  the  grant.  And  the  right  acquired 
by  prescription  cannot  in  the  same  way  be  enlarged  or  ex- 
tended."^ Where  one  has  the  right  of  a  water  course  over 
another's  land,  he  is  obliged  to  keep  it  in  repair,  in  the 
absence  of  covenants  imposing  that  obligation  upon  the  owner 
of  the  land,  and  for  that  purpose  he  has  the  right  to  enter 
upon  the  land  to  make  the  repairs,  taking  care  that  no  un- 
necessary damage  be  done  to  the  servient  estate.^ 

§  448.  Eight  of  lateral  and  subjacent  support. —  As  an  in- 
cident to  the  right  of  property  in  lands,  the  proprietor  can- 
not make  excavations  upon  his  land,  which  will  deprive  the 
adjoining  land  of  that  lateral  support  which  is  necessary  to 
keep  it  from  falling  in.^  In  the  same  manner,  where  there 
is  a  separate  ownership  in  the  surface,  and  the  mines  be- 
neath, the  owner  of  the  mines  cannot,  by  working  them,  so 
weaken  the  subjacent  support  to  the  surface  as  to  cause  it 
to  cave  in.^  The  cases  are  numerous  in  which  the  right  to 
lateral  and  subjacent  support  is  claimed  and  conceded,  and 

98  White  V.  Sheldon,  8  N.  Y.  S.  212 ;  Boynton  v.  Longley,  19  Nev.  69, 
6  Pac.  Rep.  437. 

»o  Sampson  V.  Hoddinott,  1  C.  B.  (n.  s.)  590;  Bickett  V.  Morris,  L. 
R.  1  H.  L.  Cas.  47;  Smith  V.  Langewald,  140  Mass.  205;  Mack  v. 
Bensley,  G3  Wis.  80. 

1  Peter  r.  Daniel,  C.  B.  568;  Prescott  V.  White,  21  Pick.  341.  "Where 
an  owner  of  land  granted  a  right  to  the  owner  of  a  dam  to  keep,  main- 
tain, rebuild,  and  repair  the  same,  the  grantee  of  the  owner  takes  sub- 
ject to  the  grant."     Koe  p.  Redner   (N.  Y.  Sup.  1904),  93  N.  Y.  S.  258. 

2  Partridge  r.  Scott,  3  Mees.  &  W.  220;  Humphries  v.  Brogden,  12  Q. 
B.  743;  Beard  v.  Murphy,  37  Vt.  101;  McGuire  V.  Grant,  25  N.  J.  L.  356; 
Charless  v.  Rankin.  22  Mo.  566. 

3  Humphries  v.  Brogden,  12  Q.  B.  739 ;  Smart  v.  Morton,  5  E.  &  B. 
30;  Rowbotham  V.  Wilson,  8  E.  &  B.  123;  Jones  v.  Wagner,  66  Pa.  St. 
429,  5  Am.  Rep.  385. 

640 


CH.    XVn.]i  EASEMENTS.  §448 

the  same  general  principles  determine  the  character  and 
limitations  of  both  kinds  of  support.*  These  are  natural 
rights  of  easements,  which  are  independent  of  any  covenant 
or  grant.  They  extend,  however,  only  to  the  support  of  the 
adjoining  land  or  surface  in  its  natural  condition.  If  the 
burden  of  support  is  increased  by  the  erection  of  buildings 
upon  the  land,  and  because  of  such  increase  the  excavation 
has  caused  the  injury  to  the  adjacent  owner,  he  is  without 
remedy.  He  had  no  natural  easement  upon  the  land  of  his 
neighbor  for  the  support  of  his  buildings.  Such  is  also  the 
rule  where  in  the  case  of  mines,  the  erection  of  the  buildings 
causes  the  surface  to  give  way."*  But  if  the  excavation  is 
made  in  a  negligent  or  unskillful  manner,  and  the  damage 
results  from  negligence  or  unskillfulness,  and  not  from  the 
increase  of  the  burden  by  the  erection  of  the  house,  an  action 
will  lie  for  the  injury  thus  sustained.^     And  it  is  generally 

4  Homer  v.  Watson,  79  Pa.  St.  242;  a.  c.  21  Am.  Rep.  55;  Richardson 
V.  Vt.  Cent.  R.  Co.,  25  Vt.  465;  Yandes  V.  Wright,  66  Ind.  319;  Jones 
V.  Wagner,  66  Pa.  St.  429;  Scranton  V.  Phillips,  94  Pa.  St.  15;  Carlin 
V.  Chappell,  101  Pa.  St.  348;  Buskirk  V.  Stiekland,  47  Mich.  389;  Shafer 
V.  Wilson,  44  Md.  268;  Dyer  V.  City  of  St.  Paul,  27  Minn.  457;  Marvin 
V.  The  Brewster  Iron  Mfg.  Co.,  55  N.  Y.  538;  Marvin  v.  Brewster  Iron 
Mining  Co.,  55  N.  Y.  538;  s.  c.  14  Am.  Rep.  322;  White  v.  Dresser,  135 
Mass.  150;  Coleman,  et  al.,  V.  Chadwick,  80  Pa.  St.  81.  See  also,  Myer 
V.  Hobbs,  57  Ala.  175;  Gilmore  v.  Driscoll,  123  Mass.  199;  Mamer  v. 
Lussem,  65  111.  484;  Wilms  V.  Jess,  94  111.  464;  s.  c.  34  Am.  Rep.  242; 
Tunstall  v.  Christian,  80  Va.  1,  s.  o.  56  Am.  Rep.  581 ;  Northern  Trana. 
Co.  of  Ohio  V.  Chicago,  99  U.  S.  (9  Otto)  635.  For  discussion  of  rela- 
tive rights  of  surface  and  mine  owner  and  collation  of  authorities  on  in- 
juries to  surface  owner,  from  removal  of  subjacent  strata,  by  mine 
owner,  both  as  regards  the  land  in  its  natural  state  and  with  additional 
weight  of  buildings,  see.  White,  Mines  &  Min.  Rem.,  Sees.  212,  216. 

»  Rogers  v.  Taylor,  2  H.  &  N,  828;  Palmer  v.  Flesheea,  1  Sid,  167; 
McGuire  v.  Grant,  25  N.  J.  L.  356;  Napier  v.  Bulwinkle,  5  Rich.  311; 
Charless  r.  Rankin,  22  Mo.  566. 

«  Foley  V.  Wyeth,  2  Allen  131;  Richardson  v.  Vermont  Cent.  R.  R.,  25 
Vt.  465;  Panton  v.  Holland,  17  Johns.  92;  McGuire  v.  Grant,  25  N.  J.  L. 
356;  Wilms  v.  Jess,  94  111.  464;  Coleman  v.  Chadwick,  80  Pa.  St.  81; 
Homer  v.  Watson,  79  Pa,  St.  242;  Scranton  v.  Phillips,  94  Pa.  St.  15; 
Carlin  v.  Chappell,  101  Pa.  St.  348;  Livingston  v.  Moingona  Coal  Co., 
49  Iowa  369. 

41  641 


§  448  EASEMENTS.  [PART  H. 

held  that  the  party  intending  to  make  an  excavation  on  his 
own  land  must  notify  the  adjoining  proprietor  if  the  excava- 
tion is  likely  to  endanger  the  foundation  of  his  building  J 
The  English  courts,  however,  deny  the  right  to  an  action  in 
such  a  case,  if  injury  would  not  have  resulted  from  the 
negligence,  had  there  been  no  building  or  other  superstruc- 
ture upon  the  land.*  A  common  case  for  the  application  of 
the  right  to  lateral  and  subjacent  support,  is  that  of  cutting 
down  the  grade  of  streets  to  such  an  extent  as  to  cause  a 
caving  in  of  adjoining  land."  But  these  natural  rights  may 
be  enlarged  or  diminished  by  express  grant,  or  entirely  new 
rights  may  be  acquired  by  prescription.  Thus  a  house  may 
have  annexed  to  it  by  grant  or  prescription  an  easement  for 
lateral  or  subjacent  support  on  the  adjacent  or  underlying 
property  of  another,  which  cannot  be  claimed  as  a  natural 
incident  of  the  right  of  property.  On  the  other  hand,  the 
right  to  such  a  support  may  be  surrendered  altogether.^" 
Where  the  natural  easement  is  thus  extended  to  include  the 
support  of  buildings  then  all  excavations  must  be  so  con- 

''  See  Payton  v.  Mayor  of  London,  9  Barn.  &  Cress.  725 ;  4  Man.  &  Ky. 
625;  Walters  v.  Pfeil,  1  Moody  &  Malk.  362;  Massey  v.  Goyder,  4  Car. 
&  Payne  161;  Lasala  v.  Holbrook,  4  Paige  (N.  Y.)  169.  As  a  general 
rule,  the  easement  of  support  on  the  part  of  the  surface  owner  is  lield, 
by  implication,  to  extend  to  his  buildings,  so  as  to  protect  him  from 
excavations  or  underground  drifts.  White,  Mines  &  Min.  Rem.,  Sees. 
212-216,  and  cases  cited. 

8  Smith  V.  Thackerah,  L.  E.  1  C.  B.  564 ;  Brown  v.  Robins,  4  H.  &  N. 
186;  Strogan  v.  Knowles,  6  H.  &  N.  454;  Backhouse  f.  Bonomi,  9  H.  L. 
Gas.  503. 

»  Humphries  v.  Brogden,  12  Q.  B.  D.  743 ;  Wyatt  v.  Harrison,  3  Barn. 
&  Adol.  871;  8.  c.  23  Eng.  Com.  L.  380;  Hendricks  v.  Spring  Valley  Min- 
ing and  Irrigation  Co.,  58  Cal.  190. 

10  Rogers  v.  Taylor,  2  H.  &  M.  828 ;  Wyatt  v.  Harrison,  3  B.  &  Ad. 
817;  Cox  V.  Matthews,  1  Vent.  237;  Brown  v.  Windsor,  1  Compt.  &  J. 
20.  It  has  been  held  in  Georgia  and  elsewhere  that  the  right  to  lateral 
support  for  a  building  cannot  be  acquired  by  prescription.  Mitchell  r. 
Mayor,  49  Ga.  19,  15  Am.  Rep.  469;  Gilmore  v.  Driscoll,  122  Mass.  199; 
Tunstall  v.  Christian,  80  Va.  1;  s.  c.  56  Am.  Rep.  591;  Napier  i".  Bul- 
winkle,  5  Rich.   (S.  Car.)    311. 

642 


CH.    XVII.]  EASEMENTS.  §  450 

ducted  that  no  damage  be  done  to  the  buildings  or  other 
struetures.^^ 

§  449.  Implied  grant  of  lateral  support. —  Another  excep- 
tion to  the  general  rule  arises  where  the  owner  of  two  adjoin- 
ing lots  conveys  one  with  a  building  thereon;  he  cannot  by 
excavations  on  the  other  lot  deprive  the  building  of  the 
requisite  support.  The  grant  of  an  easement  for  lateral  sup- 
port is  implied  from  his  conveyance  of  the  lot  and  building. 
He  will  not  be  permitted  to  do  anything  upon  the  remaining 
lot  which  will  detract  from  its  full  enjoyment.'-  The  same 
rule  applies  when  adjacent  houses  rely  for  lateral  support 
upon  the  walls  of  each  other,  as  where  houses  are  built  in  a 
block,  and  the  walls  between  them  mutually  support  each 
other.  If  one  man  erects  the  block,  and  afterwards  sells  one 
or  more  of  the  houses,  an  easement  for  support  arises  in 
favor  of  the  owners  of  the  several  houses."  This  easement 
may  also  be  acquired  by  express  grant  in  all  cases  where 
it  will  not  be  implied.^* 

§  450.  Party  walls. — Rights  similar  to  lateral  support  are 
acquired  by  the  erection  of  the  so-called  party  walls.  A 
party  wall  is  one  which  is  erected  between  two  lots  for  the  com- 
mon benefit  of  the  owners  thereof  in  supporting  the  beams 
of  their  adjoining  buildings.  They  are  not  tenants  in 
common  of  the  entire  wall.     Each  has  the  title  in  severalty 

11  Partridge  v.  Scott,  3  Mee.  &  W.  220 ;  Brown  v.  Windsor,  1  Compt. 
&  J,  20;  Hide  v.  Thomborough,  2  Car.  &  Kir.  250;  McMillen  v.  Watt, 
27  Ohio  306;  see  also  City  of  Quincy  v.  Jones,  76  III.  231;  s.  c.  20  Am. 
Rep.  243;  Tunstall  v.  Christian,  80  Va.  1;  ».  c.  56  Am.  Rep.  581;  O'Con- 
nor V.  Pittsburg,  18  Pa.  St.  187. 

12  Brown  v.  Windsor,  1  C.  &  J.  20;  Richards  v.  Rose,  Ex.  Ch.  218; 
Humphries  v.  Brogden,  12  Q.  B.  743;  Eno  v.  Del  Vecchio,  4  Duer  53; 
McGuire  v.  Grant,  25  N.  J.  L.  356. 

18  See  Dee  v.  King  (Vt.  1905),  59  Atl.  Rep.  839. 

14  Solomon  v.  Vintner's  Co.,  4  H.  &  N.  598;  Walters  v.  Pfeil,  Mood.  A, 
M.  362;  Peyton  v.  Mayo  of  London,  9  B.  &  C.  725;  KieflFer  v.  Imhof,  28 
Pa.  St.  438;  City  of  Quincy  v.  Jones,  76  HI.  231;  U.  S.  v.  Appleton,  1 
Sumn.  (U.  S.)  492. 

643 


§  450  EASEMENTS.  [PART   H. 

to  one-half,  with  an  easement  for  support  in  the  other  half. 
Each  of  the  owners  can  do  whatever  he  pleases  with  his  own 
half,  provided  he  does  not  weaken  the  support  of  the  other 
half.  And  if  he  tears  down  his  half  he  does  it  at  the  risk 
of  rendering  himself  liable  for  any  injuries  sustained  by  the 
remaining  portion  of  the  wall.^'  But  it  is  not  every  wall 
which  is  common  between  two  houses  that  has  the  character- 
istics of  a  party  wall.^®  But  every  such  wall  by  constant  use 
as  a  common  wall  for  twenty  years  will  become  a  party  wall 
by  prescription.^^  Party  walls  are  generally  erected  by 
express  agreement  between  the  parties,  each  paying  his  share 
of  the  expenses.^*  The  mere  erection  by  one  of  a  common 
wall  betw^een  them  will  not  subject  the  other  to  liability  for 
one-half  the  expenses  of  erection,  even  though  he  derives  as 
much  benefit  therefrom  as  the  one  who  caused  its  erection. ^^ 
Party  walls  are  generally,  though  not  necessarily,  erected  one- 
half  on  each  of  the  contiguous  estates.^**  The  easements  of 
the  adjoining  owners  in  each  other's  half  of  the  party-wall 
are  lost  whenever  the  party-wall  is  pulled  down  or  other- 
wise destroyed.^^ 

isMatts  V.  Hawkins,  5  Taunt.  20;   Sherred  r.  Cisco,  4  Sandf.  480; 
Orman  v.  Day,  5  Fla.  385 ;  Berry  v.  Todd,  14  Daly  450. 
i«Traute  v.  White  (N.  J.),  19  Atl.  Rep.  196. 

17  Eno  V.  Del  Vecchio,  4  Duer  53 ;  Dowling  r.  Hennings,  20  Md.  179. 
But  see  Mitchell  v.  Mayor,  49  Ga.  19,  15  Am.  Rep.  669;  Napier  V.  Bul- 
winkle,  5  Rich.  311. 

18  Evans  v.  Howell  (HI.  1903),  111  111.  App.  167;  Hutchins  V.  Mum 
(D.  C.  1903),  22  App.  D.  C.  88. 

19  Richardson  v.  Tobey,  121  Mass.  457,  23  Am.  Rep.  283;  Sherred  V. 
Cisco,  4  Sandf.  480;  Dole  v.  Hughes,  54  N.  Y.  444,  13  Am.  Rep.  611. 
And  one  part  owner  of  a  party  wall  may  be  sued  on  his  contract  or 
covenant  for  his  share  of  the  expenses.  Day  v.  Caton,  115  Mass.  513, 
20  Am.  Rep.  347;  Rindge  v.  Baker,  57  N.  Y.  207,  15  Am.  Rep.  475.  But 
a  covenant  to  build  a  party  wall  is  executory  and  personal  in  its  nature, 
and  does  not  run  with  the  land  so  as  to  bind  the  assigns  of  the  cove- 
nantor.    Cole  V.  Hughes,  54  N.  Y.  444,  13  Am.  Rep.  611. 

20  See  Cubitt  v.  Porter,  8  B.  &  C.  257 ;  Wiltshire  v.  Sidford,  8  B.  &  C. 
259 ;  Dowling  v.  Hennings,  20  Md.  179 ;  Hammann  v.  Jordan,  9  N.  Y.  S. 
423. 

•iF'-irtt  V.  Kruger  (N.  Y.),  24  N.  E.  Rep.  841,  5  N.  Y.  S.  841. 

M4: 


CH.    XVII.]  EASEMENTS.  §  451 

§  451.  Double  ownership  in  buildings  —  Subjacent  support. 
—  Where  there  is  a  separate  ownership  in  the  upper  or  lower 
half  of  a  house,  similar  easements  of  support  are  enjoyed  by 
the  respective  owners.  The  owner  of  the  upper  half  is  en- 
titled to  the  subjacent  support  from  the  lower  half,  and  the 
owner  of  the  lower  half  has  an  easement  in  the  upper  half, 
the  roof,  etc.,  for  protection  from  rain  and  other  elements. 
The  owner  of  the  upper  story  would  also  have  as  a  way  of 
necessity,  if  not  by  express  grant,  a  right  to  use  the  hall  and 
stairs  in  getting  to  and  out  of  the  upper  story.^^  The  law  is 
not  very  clear  as  to  the  obligations  of  the  owners  to  each  other. 
Without  doubt  one  cannot  do  any  affirmative  act  to  his  half 
which  v.'ill  result  in  damage  to  the  other.  But  whether  he  is 
under  a  legal  obligation  to  keep  his  half  in  repair  for  the  bene- 
fit of  the  other  is  not  well  settled,-'  although  that  would  seem 
to  be  a  just  and  equitable  doctrine.  If  there  is  no  such  obliga- 
tion to  repair,  the  owner  of  the  other  half  has  the  right  to 
enter  and  make  the  repairs  himself.  There  seems  also  to  be  a 
tendency  to  adopt  the  French  rule,  making  all  expenses  for 
repair  a  common  charge  upon  all  the  owners.^*  But  it  will 
require  further  adjudication  in  order  to  settle  the  rights  and 
obligations  of  these  parties. 

If  there  is  no  provision  for  rebuilding,  the  title  of  the 
purchaser  of  an  upper  story  or  single  room  of  a  building  is 
completely  extinguished  by  the  destruction  of  the  building.'^'' 

22 Mayo  r.  Newhoff  (N.  J.),  19  Atl.  Rep.  837. 

23  The  authorities  generally  deny  the  right  of  action.  Calvert  V.  Al- 
drich,  99  Mass.  74;  Pierce  V.  Dyer,  109  Mass.  374,  12  Am.  Rep.  716. 
But  if  the  owner  of  the  upper  half  repairs  the  roof,  he  bears  the  whole 
expenses,  and  cannot  compel  the  owner  of  the  other  half  to  pay  any 
proportion  of  it.  Ottumwa  Lodge  v.  Lewis,  34  Iowa  67,  11  Am.  Rep. 
135.  See  also  Graves  v.  Berdan,  26  N.  Y.  501;  McCormick  v.  Bishop, 
28  Iowa  239. 

24  Campbell  v.  Mesier,  4  Johns.  Ch.  334.  Contra,  Ottumwa  Lodge  V. 
Lewis,  34  Iowa  67,  11  Am.  Rep.  135.  And  see  Graves  t\  Berdan,  26  N. 
r.  501 ;  McCormick  v.  Bishop,  28  Iowa  239. 

25Hahn  r.  Baker  Lodge  (Oreg.),  27  Pac.  Rep.  166.  For  authorities 
on  the  easement  of  the  owner  of  buildings  and  other  structures,  of 

645 


§    452  EASEMENTS.  [PART    II. 

§  452.  Legalized  nuisances. —  Where  one  acquires  from  the 
owners  of  the  land  in  the  neighborhood,  by  grant  or  prescrip- 
tion, the  right  to  do  things  which,  without  such  license,  would 
be  a  nuisance,  and  for  which  an  action  would  lie,  he  is  said  to 
have  acquired  an  easement  in  the  lands  to  commit  the  nuisance, 
free  from  liability  for  the  consequences.  Such  is  very  often  the 
case  with  noisome  or  offensive  trades.  The  trade  must,  how- 
ever, be  lawful,  and  likely  to  be  productive  of  benefit  to  the 
public,  in  order  that  the  easement  may  bind  the  owners  of  the 
neighboring  land.  And  a  nuisance,  legalized  in  this  manner, 
must  be  kept  strictly  within  the  conditions  upon  which  the 
right  was  acquired.  The  licensee  will  not  be  permitted  to 
increase  the  nuisance,  or  to  establish  a  new  one  in  its  place, 
and  the  right  must  be  exercised  with  the  least  possible  dis- 
comfort or  annoyance  to  the  owners  of  the  adjoining  lands. ^® 

support  from  the  subjacent  strata  of  the  soil,  on  which  such  erections 
are  placed,  see  White,  Mines  and  Min.  Rem.,  Sec.  216. 

26Aldred's  Case,  9  Rep.  59  a;  Cole  v.  Barlow,  4  C.  &  B.  (n.  s.)  434; 
Dana  v.  Valentine,  5  Mete.  8;  Atwater  v.  Bodfish,  11  Gray  152;  Hole- 
man  i'.  Boiling  Spring  Co.,  14  N.  J.  Eq.  346.  See,  for  allowance  of  dam- 
ages, for  flagrant  violation  of  land  owner's  rights,  Bernos  v.  Canepa 
(La.  1905),  38  So.  Rep.  438. 
646 


SECTION  III. 

FRANCHISES. 

Section  453,  Definition. 

454.  Kinds  of  franchises. 

455.  Mutual  obligations. 

456.  Conflicting  franchises  —  Constitutional  prohibition. 

§  453.  Definition. —  A  franchise  is  a  privilege  granted  by 
the  government  to  individuals  which  is  not  enjoyed  by,  and  do 
not  belong  in  common  to,  the  people  of  a  country.  In  Eng- 
land it  is  conferred  by  letters  patent  from  the  crown,  and  in 
this  country  by  grants  from  the  legislative  department  of  the 
government.  It  is  a  privilege  which  is  granted  because  it  is 
calculated  to  promote  the  public  benefit,  while  at  the  same 
time  it  affords  a  source  of  revenue  to  those  who  engage  in  its 
exercise.^^  A  franchise  is  generally,  but  not  necessarily, 
granted  to  a  corporation.  Individuals  may  possess  it,  but  it 
is  usually  of  such  a  nature  that  it  is  easier  and  more  con- 
venient for  corporations  to  exercise  it.  It  is  an  estate  of 
inheritance,  unless  its  enjoyment  is  limited  to  a  specific  period, 
and  is  inheritable.^*  It  can  be  aliened,  and  may  be  sold  to 
satisfy  the  debts  of  the  corporation  or  the  individuals  who 
own  it.^'     The  franchise  is  to  be  distinguished  from  the  char- 

2TBk.  of  Augusta  v.  Earle,  13  Pet.  519;  2  Bla.  Com.  37;  People  V. 
Utica  Ins.  Co.  15  Johns.  358.  In  England  franchises  are  now  granted 
by  the  Legislature,  instead  of  by  the  crown  as  formerly.  1  Cool.  Bla. 
Com,  274,  n, 

28  3  Kent's  Com.  459;  2  Washburn  on  Real  Prop.  291;  Chadwick  v. 
Haverhill  Bridge,  2  Dane  Abr.  686;  Stark  v.  McGowcn,  1  Nott.  &  M, 
393;  Clark  v.  White,  5  Bush  353. 

20  2  Washburn  on  Real  Prop.  297,  For  compliance  with  franchise, 
after  sale  by  the  corporation  to  which  same  was  granted,  see  Grosse 
P.  L,  V.  Detroit  &  L.  Ry.  Co.   (Mich.  1902),  90  N.  W.  Rep.  42.     For 

647 


§  455  FRANCHISES.  [PART   11. 

ter  of  the  corporation  which  owns  it,  although  the  franchise  is 
often  granted  in  the  same  ^ct  which  contains  the  charter. 
Thus,  in  the  case  of  a  railroad  company,  the  franchise  of  the 
road  may  be  sold  to  satisfy  debts,  but  the  charter  does  not  pass 
with  it. 

§  454.  Kinds  of  franchises. —  There  are  as  many  kinds  of 
franchises  as  there  may  be  privileges  granted  by  the  govern- 
ment. The  most  common  are  ferries,  bridges,  turnpike  roads, 
and  railroads.  A  ferry  is  the  right  to  conduct  passengers  and 
freight  by  boat  across  a  navigable  stream  between  two  points 
on  the  opposite  banks.  The  right  to  a  ferry  does  not  depend 
upon  the  proprietorship  of  the  water,  or  of  the  banks.  Neither 
gives  the  right  to  set  up  a  ferry,  nor  does  the  grant  of  a  ferry 
interfere  with  the  general  navigation  of  the  stream.^**  In  the 
same  manner  is  the  right  to  construct  a  bridge  across  a  stream, 
or  to  build  a  railroad  or  turnpike,  a  privilege,  and  not  a  com- 
mon right  which  may  be  enjoyed  by  any  one.^^ 

§  455.  Mutual  obligations. —  In  the  grant  of  a  franchise, 
mutual  obligations  are  assumed  by  the  government  and  the 
individuals  or  corporations  who  receive  it.  The  government 
confers  upon  the  latter  the  right  to  exercise  the  right  of 
eminent  domain  over  private  property,  so  far  as  it  is  necessary 
for  the  enjoyment  of  the  franchise,  and  the  further  right  to 

custom  of  letting  franchise  to  highest  bidder,  see  California  v.  Tel.  Co. 
(Mo.  1905),  87  S.  W.  Rep.  604. 

30  Peter  v.  Kendall,  6  B.  &  C.  703;  Fay,  Petitioner,  15  Pick.  243; 
Fall  V.  County  Sutter,  21  Cal.  252;  Inh.  Peru  v.  Barrett  (Me.  1905),  GO 
Atl.  Rep.  968. 

31  Beckman  v.  Saratoga,  etc.,  R.  R.,  3  Paige  Ch.  45 ;  Bloodgood  v.  Mo- 
hawk Railroad,  18  Wend.  9;  Milhan  v.  Sharp,  27  N.  Y.  619;  McRob- 
erts  V.  Washburn,  10  Minn.  27.  "  The  fact  that  the  corporation's  right 
in  the  State  authorizes  a  contract  —  a  lease  —  cannot  alter  its  status, 
as  a  contract  made  under  a  franchise  cannot  reach  beyond  the  rights 
acquired  by  the  franchise  itself,  and  afford  immunity  from  public  du- 
ties." Louisiana  &  Northwest  R.  Co.  v.  State  (Ark.  1905),  88  S.  W. 
Eep.  559. 

648 


CH.    XVII.]  FRANCHISES.  §    456 

provide  for  its  own  compensation,  by  charging  a  toll  to  all 
persons  who  make  use  of  the  benefits  thus  provided.  On  the 
other  hand,  the  corporation  undertakes  to  provide  for  the  pub- 
lic safety  and  convenient  accommodations,  and  for  any  fail- 
ure to  carry  out  its  part  of  the  contract  it  is  liable  to  any 
person  who  may  be  injured  thereby,  and  it  may  lose  its  fran- 
chise by  forfeiture  to  the  State.  The  franchise  is  forfeited 
only  at  the  suit  of  the  government,  by  a  judgment  in  a  proceed- 
ing of  scire  facias  or  quo  warranto.^^ 

§  456.  Conflicting  franchises  —  Constitutional  prohibition. — 
If  the  government,  in  granting  a  franchise,  obligates  itself  not 
to  grant  a  similar  franchise  to  be  exercised  in  the  same  neigh- 
borhood, or  between  the  same  points,  any  subsequent  franchise 
would  be  void,  under  the  provision  of  the  United  States  Con- 
stitution, which  prohibits  a  State  from  passing  any  law  impair- 
ing the  obligation  of  a  contract.^^  But  if  there  is  no  express 
restriction  of  that  kind,  none  will  be  implied.  And  the  grant 
of  a  second  franchise  would  be  good,  even  though  its  exercise 
would  render  the  first  altogether  valueless.'*  A  franchise  ia 
not  necessarily  a  monopoly.  And  even  when  there  is  such  a 
restriction,  the  State  is  not  prohibited  from  destroying  the  first 
franchise  by  the  grant  of  a  second,  under  the  doctrine  of 
eminent  domain,  whenever  the  public  wants  require  such  a 
forfeiture.^'     In  such  a  case,  however,  the  owners  of  the  first 

82  Peter  v.  Kendall,  6  B.  &  C.  703 ;  Willoughby  v.  Horridge,  12  C.  B. 
742 ;  3  Kent's  Com.  458 ;  2  Washburn  on  Real  Prop.  293 ;  Louisiana  &  N. 
W.  Co.  V.  State   (Ark.  190.5),  88  S.  W.  Rep.  559. 

33  Dartmouth  College  v.  Woodward,  4  Wheat.  518;  Boston  &  Lowell 
R.  R.  V.  Salem  &  L.  R.  R.,  2  Gray  1 ;  Newburgh  Turnpike  Co.  v.  Miller, 
5  Johns.  Ch.  101 ;  McRoberts  v.  Washburn,  10  Minn.  29. 

84  Charles  River  Bridge  Co,  v.  Warren  River  Bridge  Co.,  7  Pick.  344 ; 
8.  c,  11  Pet.  429;  Richmond  R.  R.  Co.  t;.  Louisa  R.  R.  Co.,  13  How.  71; 
Fort  Plain  Bridge  Co.  v.  Smith,  30  N.  Y.  61;  Fall  v.  County  Sutter,  21 
Cal.  252. 

86  For  constitutionality  of  laws  impairing  the  validity  of  franchises, 
see  C.  B.  &  L  R.  Co.  v.  Abbott  (111,  1905),  216  111.  416,  74  N,  E.  Rep. 
412;  People  v.  Bd.  Tax  Comr.,  199  U.  S.  53,  49  L,  Ed.  30;  Detroit,  etc., 
R.  Co,  V.  Powers,  138  Fed,  Rep,  264. 

649 


§  456  FRANCHISES.  [PART   II. 

franchise  would  be  entitled  to,  and  would  receive,  a  proper 
compensation  for  such  loss.  A  franchise  is  just  as  much  sub- 
ject to  the  exercise  of  eminent  domain,  under  similar  restric- 
tions as  to  compensation,  as  any  other  kind  of  private 
property.^®  If,  however,  private  persons  attempt,  without  a 
franchise,  to  exercise  the  same  rights  as  are  granted  by  the 
franchise,  to  the  prejudice  of  the  owners  of  the  franchise,  such 
an  interference  would  be  considered  a  nuisance,  which  will  be 
abated  and  damages  awarded  upon  proper  application  to  the 
courts.'^ 

86  West  River  Bridge  Co.  r.  Dix,  6  How.  507 ;  Richmond  R.  R.  Co.  v. 
Louisa  R.  R.  Co.,  13  How.  71 ;  Boston  Water  Power  Co.  v.  Boston  &  W. 
R.  R.  Co.,  23  Pick.  360;  McRoberts  v.  Washburn,  10  Minn.  27;  Rochester 
V.  Rochester  (N.  Y.  1905),  74  N.  E.  Rep.  963. 

37  2  Bla.  Com.  219;  2  Washburn  on  Real  Prop.  294;  Ogden  V.  Gibbons, 
4  Johns.  Ch.  150;  Newburgh  Turnpike  Co.  v.  Miller,  5  Johns.  Ch.  101; 
Fall  r.  County  Sutter,  21  Cal.  252.  But  see,  as  to  the  power  of  the 
legislature  to  alter  or  change  the  charter  power  o'f  a  corporation,  within 
the  power  reserved  by  the  grant,  McKee  v.  Chautauqua  Assembly,  130 
Fed.  Rep.  536. 
650 


I 


SECTION  IV. 

RENTS. 

Segtiow  457.  Rents  defined. 

458.  Rent-service. 

459.  Rent-charge  and  rent-seek  —  Fee  farm  rents. 

460.  How  created. 

461.  How  extinguished  or  apportioned. 

462.  Remedies  for  the  recovery  of  the  rent. 

463.  Liens  arising  from  charges  by  will  or  by  deed. 

464.  Liens  by  express  charges. 

§  457.  Rents  defined. —  A  rent,  according  to  Mr.  Washburn, 
"is  a  right  to  the  periodical  receipt  of  money  or  money's  worth 
in  respect  of  lands,  which  are  held  in  possession,  reversion  or 
remainder,  by  him  from  whom  the  payment  is  due. "  "  It  is, 
in  other  words,  a  right  to  the  payment  of  something  out  of  the 
profits  of  lands,  to  be  rendered  by  the  owner  thereof  and  his 
privies.  At  common  law  there  were  three  kinds  of  rents, 
viz. :  Rent  service,  rent  seek  and  rent  charge. 

§  458.  Rent  service. —  A  rent  service  is  that  which  the 
owner  of  a  feud  reserves  to  himself  in  conveying  a  part  or  the 
whole  of  his  estate  therein,  to  be  paid  by  the  grantee.  In 
every  such  conveyance  there  was  a  tenure  existing  between 
grantor  and  grantee  even  of  the  fee,  and  out  of  this  tenure,  and 
as  an  incident  thereof,  whenever  there  was  a  rent  reserved  the 
owner  of  the  rent  had  the  right  to  go  upon  the  land  and 
distrain  the  grantee's  goods  and  chattels,  and  satisfy  himself 
for  the  accrued  and  unpaid  rent  by  a  sale  thereof.  This  right 
of  distress  was  enjoyed  by  the  holder  of  a  rent  service,  without 
its  being  expressly  reserved."    The  Statute  Quia  Emptores 

88  2  Washburn  on  Real  Prop.  272;  Co.  Lit.  142  a. 
80  In  some  States  the  right  of  distress  for  rent  still  exists,  in  a  modi- 

651 


§  460  RENTS.  [part   II, 

abolished  all  tenure  between  grantors  and  grantees  of  the  fee, 
so  that  at  present  a  rent  service  cannot  be  reserved  out  of  a 
fee.***  But  this  tenure  does  exist  between  reversioner  or  re- 
mainder-man, and  the  tenant  of  a  term  of  years,  and  therefore 
a  rent  service  may  be  reserved  in  a  lease.*^ 

§  459.  Rent  charge  and  rent  seek  —  Fee  farm  rents. —  Rent 
charge  is  that,  the  pajonent  of  which  is  made  a  charge  upon 
the  land,  but  to  which  no  right  of  distress  was  attached,  unless 
expressly  granted  or  reserved.  If  the  owner  of  the  rent  was 
given  this  right,  it  was  called  a  rent  charge;  if  he  did  not 
possess  it,  the  rent  was  a  mere  dry  •  rent,  or  rent  seek,  the 
payment  of  which  cannot  be  enforced  by  any  seizure  of  the 
property  out  of  which  it  was  to  issue.*^  The  characteristics  of  • 
these  two  kinds  of  rents,  at  present,  present  no  dissimilarity 
except  in  the  matter  of  remedies  for  their  enforcement,  and 
are  generally  known  under  the  common  name  of  fee-farm 
rents,  and  are  thus  distinguished  from  rents  service.*^  They 
will,  therefore,  be  treated  together  under  that  common  appella- 
tion. 

§  460.  How  created. —  Fee-farm  rents  are  created  by  any 
form  of  conveyance  which  constitutes  a  valid  transfer  of  other 
incorporeal  hereditaments.  And  they  may  be  either  reserved 
by  the  owner  of  the  land  in  the  deed  conveying  the  land,  or 
granted  by  him  to  a  stranger,  while  he  retains  the  land,**  or 

fied  form.  Stephens  v.  Hooks  (Ga,  1905),  50  S.  E.  Eep.  119;  Cum- 
mings  V.  Smith,  114  111.  App.  35.  But  see,  Groesbeck  v.  Milling  Co. 
(Tex.  1905),  86  S.  W.  Rep.  346. 

40  2  Washburn  on  Real  Prop.  273 ;  3  Prest.  Abst.  54 ;  Van  Rensselaer  V, 
Read,  26  N.  Y.  563 ;  Wallace  v.  Harmstad,  44  Pa.  St.  495. 

41  2  Washburn  on  Real  Prop.  273;  Williams  on  Real  Prop.  247. 

42  3  Prest.  Abst.  55;  2  Bla.  Com.  42;  Williams  on  Real  Prop.  329, 
330 ;  2  Washburn  on  Real  Prop.  273,  274 ;  Cornell  v.  Lamb,  2  Cow.  652 ; 
Wallace  v.  Harmstad,  44  Pa.  St.  495. 

43  3  Prest.  Abst.  54;  2  Washburn  on  Real  Prop.  273;  Langford  v. 
Selmes,  3  Kay  &  J.  229;  Williams  on  Real  Prop.  333. 

*4  3  Prest.  Abst.  53;  3  Cruise  Dig.  273;  Williams  on  Real  Prop.  334; 
652 


CH.    XVII.]  RENTS.  §   461 

they  may  be  acquired  by  prescription.*'  It  may  be  granted  in 
fee,  in  tail,  for  life  or  for  years,  and  there  may  be  a  grant  oi 
the  rent  to  one  for  a  particular  estate,  with  a  remainder  to 
another.*®  But  the  rent  will  be  only  good  so  far  as  the  estate 
of  the  grantor  extends.  A  tenant  for  life  cannot  grant  a 
rent  for  a  longer  period  than  his  own  life.*^  Once  the  rent 
is  created  it  is  itself  the  subject  of  a  grant  or  devise,  and  may 
be  carved  up  into  any  number  of  estates,  as  long  as  the  fee 
is  not  parted  with.  It  descends  to  the  heirs,  and  is  capable  of 
being  conveyed  to  uses  and  in  trust.**  The  wife  also  may  have 
her  dower  or  the  husband  his  curtesy  out  of  a  rent  held  in  fee 
or  in  tail.*®  Fee- farm  rents  are  not  very  common  in  this  coun- 
try. Indeed  they  are  rarely  met  with  in  practice.  But  they 
are  valid  limitations,  and  will  receive  the  same  recognition  in 
this  country  as  is  accorded  to  them  in  England.  Whenever 
used,  they  are  resorted  to  for  the  purpose  of  securing  to  cer- 
tain heirs  their  share  in  the  inheritance  without  partitioning 
the  land,  or  for  raising  jointures  for  married  women."" 

§  461.  How  exting^iished  or  apportioned. —  If  one  having  a 
rent-charge  acquires  by  purchase  a  part  of  the  premises,  out 
of  which  the  rent  issues,  the  rent  is  wholly  extinguished,  since 

Van  Rensselaer  v.  Hays,  19  N.  Y.  68;  Ingersoll  v.  Sergeant,  1  Whart. 
337. 

<B  Wallace  v.  United  Presb.  Church,  111  Pa.  St.  164. 

46  2  Washbur  on  Real  Prop.  275;  Williams  on  Real  Prop.  334;  Van 
Rensselaer  v.  Hays,  19  N.  Y.  68 ;  Van  Rensselaer  v.  Read,  26  N.  Y.  564. 

♦7  Williams  on  Real  Prop.  329 ;  2  Washburn  on  Real  Prop.  277 ;  2 
Dane's  Abr.  452. 

<8  3  Prest.  Abst.  53 ;  2  Washb.  on  Real  Prop.  276 ;  3  Cruise  Dig.  285, 
292;  Toan  v.  Pline,  60  Mich,  385;  Trulock  v.  Donahue,  76  Iowa  758. 
"  Rents  accruing  before  the  death  of  the  landlord  do  not  inure  to  the 
benefit  of  the  heirs  by  descent."  Coberly  v.  Coberly  (Mo.  1905),  87  S. 
W.  Rep.  957. 

<»2  Washburn  on  Real  Prop.  276;  3  Cruise  Dig.  291. 

50  Scott  V.  Lunt,  7  Pet.  598;  Adams  v.  Bucklin,  7  Pick.  121;  Van 
Rensselaer  v.  Platner,  2  Johns.  Cas.  17;  Williams  Appeal,  47  Pa.  St. 
290;  Farley  v.  Craig,  11  N.  J.  L.  262;  2  Washburn  on  Real  Prop.  277, 
278;  Atkinson  V.  Orr  (Ga.),  9  S.  E.  Rep.  787. 

653 


§  462  RENTS.  [part  ii. 

a  rent-charge  is  not  capable  of  apportionment.  This  rule  is 
the  result  of  the  repugnance  entertained  at  common  law  to  this 
kind  of  rent.  The  rule  is  the  same  if  he  releases  any  portion 
of  the  land  from  the  charge."*^  But  the  rule  is  confined  to 
cases  of  acquisition  by  purchase.  If  a  portion  of  the  land  is 
acquired  by  descent,  the  rent  will  be  apportioned.*^^  The 
owner  of  the  rent  may  avoid  the  operation  of  this  rule  by 
entering  into  a  new  agreement  with  the  owner  of  the  land. 
Thus  if  the  land  is  held  by  tenants  in  common,  in  case  of 
partition  between  them,  the  owner  of  the  rent  may  by  agree- 
ment apportion  the  rent  between  them,  or  he  may  release  a 
portion  of  the  land  with  the  consent  of  the  other  land-owners.'*' 
These  agreements,  however,  would  virtually  be  new  grants  of 
rent,  and  cannot  technically  be  said  to  secure  an  apportion- 
ment of  the  old  rent.  Although  there  can  be  no  apportion- 
ment of  rent  in  case  of  a  release,  or  transfer  to  the  grantee, 
of  a  part  of  the  land  charged  with  the  rent,  it  can  be  divided 
up  indefinitely  by  the  owner  of  the  rent,  and  it  can  be 
apportioned  among  the  heirs  of  the  grantee  at  his  death,  or 
a  part  may  be  severed  by  levy  of  execution  to  satisfy  the 
debts  of  the  grantee."* 

§  462.  Remedies  for  the  recovery  of  the  rent. —  The  ordi- 
nary common-law  remedy  was  that  of  distress.  Upon  failure 
to  pay  the  rent,  the  person  entitled  to  payment  could  distrain 
the  tenant's  personal  property  found  upon  the  land,  out  of 
which  the  rent  issues.  This  right  of  distress  was  invariably 
an  incident  to  a  rent  service,  but  had  to  be  expressly  reserved 

51  2  Washburn  on  Real  Prop.  288 ;  Co.  Lit.  148 ;  Williams  on  Real 
Prop.  337;  Dennett  v.  Pass,  1  Bing.  (N.  C.)  388;  Parley  v.  Craig,  11 
N.  J.  L.  262. 

62  2  Washburn  on  Real  Prop.  288  j  Williams  on  Real  Prop.  337 ;  Cruger 
V.  McLaury,  41  N.  Y.  223. 

53  Van  Rensselaer  v.  Chadwick,  22  N.  Y.  33 ;  2  Washb.  on  Real  Prop. 
289. 

54  Rivin  V.  Watson,  5  Mees.  &  W.  255;  Farley  v.  Craig,  111  N.  J.  L. 
262;  Reyerson  v.  Quackenbush,  26  N.  J.  L.  236;  Cook  v.  Brightly,  46 
Pa.  St.  440.     See  Williams  v.  Williams  Co.  (Ga.  1905),  50  S.  E.  Rep.  52. 

654 


CH.    XVII.]  RENTS.  •  §  462 

in  the  case  of  a  rent  charge."*  In  most  of  the  States  in  this 
country  the  right  of  distress  has  at  some  time  been  adopted 
and  enforced,  as  modified  by  Stat.  4,  Geo.  II,  ch.  28,  which 
extended  it  to  rents  seek  and  rents  charge,  thereby  abolishing 
all  distinction  between  them.''*  But  it  has  never  existed  in 
New  England,  and  has  now  been  abolished  in  New  York  and 
several  of  the  other  States,  while  perhaps,  everywhere  the 
remedy  has  been  subjected  to  statutory  changes  and  restric- 
tions."^ In  addition  to  the  right  of  distress,  there  is  the  ordi- 
nary personal  action  against  the  tenant  and  his  assigns  for  the 
recovery  of  rent  as  it  falls  due.  This  remedy  always  exists 
together  with,  or  in  the  absence  of,  the  right  of  distress."*^  In 
the  common-law  pleading,  the  form  of  action  varies  with  the 
form  of  the  deed,  in  which  the  rent  is  reserved  or  granted.  If 
the  deed  is  an  indenture,  covenant  will  lie,  if  a  deed  poll, 
assumpsit  is  the  proper  form  of  action,  while  the  action  oi  debt 
will  lie  in  most  cases,  whether  the  instrument  be  an  indenture 
or  a  deed-poll."*®  Sometimes,  in  the  creation  of  a  fee-farm 
rent,  a  right  of  entry  and  forfeiture  is  granted,  which  iurns 
the  estate  into  one  upon  condition.  Or  the  right  of  entry 
is  only  granted  for  the  purpose  of  giving  the  posesssion  of 
the  premises  to  the  grantee  of  the  rent,  to  re-imburse  him- 
self  for  the  accrued  rent  out  of  the  profits  of  the   land. 

50  2  Washburn  on  Real  Prop.  278 ;  2  Shars.  Bla.  Com.  43  n. 

56  2  Washburn  on  Real  Prop.  278,  293 ;  3  Kent's  Com.  472 ;  Grant  v. 
Whitwell,  9  Iowa  154. 

57  2  Washburn  on  Real  Prop.  278,  279 ;  Guild  t;.  Rogers,  8  Barb.  502 ;  3 
Kent's  Com.  473  n;  2  Dane's  Abr.  451. 

58  2  Washburn  on  Real  Prop.  479 ;  Swasey  v.  Little,  7  Pick.  296 ;  Van 
Rensselaer  v.  Read,  26  N.  Y.  564 ;  Van  Rensselaer  v.  Dennison,  35  N,  Y. 
400. 

5»  2  Washburn  on  Real  Prop.  281 ;  Parker  v.  Webb,  3  Salk.  5;  Hinsdale 
V.  Humphrey,  15  Conn.  433;  Gale  v.  Nixon,  6  Cow.  445.  See  Smith  v. 
Borden  (N.  Y.  1904),  89  N.  Y.  S.  317,  96  App.  Div.  236.  "A  notice 
by  a  landlord  to  his  tenant,  under  Rev.  St.  1887,  Sees.  5093,  5094,  re- 
quiring him  to  pay  rent  or  surrender  possession,  describing  the  premises 
and  naming  the  amount  due,  is  sufficient  to  sustain  an  action  in  unlawful 
detainer."    Hunter  v.  Porter  (Idaho  1904),  77  Pac.  Rep.  434. 

655 


§  463  RENTS.  [part   II. 

Whether  the  entry  results  in  a  total  or  only  a  partial  for- 
feiture of  the  estate,  the  grantee  can  enforce  his  right  to  the 
possession  by  the  ordinary  common-law  action,  by  writ  of 
assize  or  by  ejectment.^'*  The  remedies  vary  greatly,  accord- 
ing to  the  terms  of  each  grant,  and  the  local  statute  law  of  each 
State.  For  a  more  detailed  statement  of  the  appropriate  rem- 
edies, the  reader  is  referred  to  these  statutes, 

§  463.  Liens  arising  from  charges  by  will  or  by  deed. — 
Charges  upon  land,  similar  in  their  effect  as  an  incumbrance 
upon  lands  to  rent  are  held  by  equity  to  exist  when  specific 
property,  or  property  in  general,  included  in  a  residuary  de- 
vise is  conveyed  or  disposed  of  by  will  subject  to  or  charged 
with,  the  payment  of  debts,  legacies,  or  annuities  in  favor  of 
some  third  party.  The  legal  title  to  the  property  was  con- 
veyed or  devised  to  the  grantee  or  devisee  subject  to  a  lien  or 
incorporeal  right  in  favor  of  the  person  to  whom  the  legacy, 
debt,  or  annuity  is  to  be  paid.  This  lien  can  be  enforced 
against  the  property  subject  to  it  in  favor  of  the  intended  ben- 
eficiary. These  equitable  liens  may  appear  in  deeds,  as  in  the 
case  of  marriage  settlements  and  the  like,  but  it  is  more  com- 
mon,— and  in  this  country  it  is  rarely  otherwise, — to  be  found 
in  wills.®^     This  lien  may  be  enforced  not  only  against  the  dev- 

60  2  Washburn  on  Real  Prop.  279,  280;  Co.  Lit.  201,  note  85.  202;  Far- 
ley V.  Craig,  11  N.  J.  L.  262.  See  Stephenson  v.  Haines,  16  Ohio  St. 
478;  Marshall  v.  Conrad,  5  Call.  364.  "  Where  a  tenant  is  in  possession, 
equity  has  no  jurisdiction  to  enforce  a  forfeiture  of  a  lease,  the  lessor 
having  an  adequate  remedy  by  ejectment."  Johnson  v.  Lehigh  Valley 
Traction  Co.  (U.  S.  C.  C,  Pa.  1904),  130  Fed.  Rep.  932.  "Where  a 
lessor  reserves  in  the  lease  an  option  to  terminate  the  lease  on  serv- 
ice of  a  30-day  notice  on  breach  of  covenant,  he  is  not  thereby  pre- 
cluded from  pursuing  his  remedy  of  forcible  detainer,  if  a  tenant  fails 
to  pay  rent  when  due."  Hunter  v.  Porter  (Idaho  f904)  77  Pac.  Rep. 
434. 

«i  Hill  V.  Bk.  of  London,  1  Atk.  618,  620;  Bright  v.  Larcher,  4  De  G. 

&  J.  608 ;  Markings  V.  Markings,  1  De  G.  F.  &  J.  355 ;  Pearson  v.  Helli- 

well,  L.  R.  18  Eq.  411;  Hoyt  v.  Hoyt,  85  N.  Y.  142;  Horning  v.  Wieder- 

spalen,  28  N.  J.  Eq.  387 ;  Gardenville,  etc.,  Assn.  v.  Walker,  52  Me.  452 ; 

656 


CH.    XVII.]  RENTS.  §  464 

isee,  but  also  against  the  grantee,  mortgagee  and  other  sub- 
sequent purchasers  who  take  it  with  notice.'^  And  the  record 
and  probate  of  the  will  in  which  the  charge  is  made  is  notice 
to  a  subsequent  purchaser  of  the  equitable  lien  arising  there- 
from.®' 

At  one  time  this  was  the  only  way  in  which  land  could  be 
subjected  to  liability  for  the  debts  of  the  decedent  owner, 
and  therefore  the  charge  of  the  land  by  the  will  with  the  pay- 
ment of  the  debts  was  a  provision  of  the  greatest  importance 
to  creditors.  But  now  all  lands,  as  well  as  personal  property, 
are  made  generally  liable  for  the  satisfaction  of  the  debts, 
and  the  testamentary  charge  is  only  valuable  to  creditors  so 
far  as  such  charge  of  the  specific  property  with  the  payment 
of  specific  debts  gives  to  the  particular  creditors  a  special  ex- 
clusive lien  for  the  satisfaction  of  their  claims.  Commonly, 
and  in  order  that  any  property  may  be  subject  to  an  equitable 
lien  in  favor  of  the  payment  of  debts  or  legacies,  the  intention 
of  the  testator  to  so  charge  the  property  must  either  be  ex- 
pressly stated  in  the  will  so  as  to  create  an  express  charge  upon 
the  property,  or  the  charge  upon  the  property  must  be  implied 
from  the  provisions  of  the  will,  or  from  the  circumstances 
surrounding  the  parties  and  the  disposition  of  the  property  by 
will;  so  that  the  lien  may  arise  from  express  and  implied 
charges  whenever  the  intention  of  the  testator  to  so  charge  the 
property  can  be  clearly  deduced  from  all  the  circumstances  of 
the  case.'* 

§  464.  Liens  by  express  charges. —  The  testator  may  of 
course  by  express  terms  charge  the  payment  of  his  debts  or 

Siron  r.  Ruleraan's  Exr.,  32  Gratt.  215;  Burch  t?.  Burch,  52  Ind.  136; 
Rhoades  v.  Rhoades,  88  111.  139. 

«2  Perkins  V.  Emory,  55  Md.  27;  Donnelly  v.  Edcnlen,  40  Id.  117; 
Blauvelt  v.  Van  Winkle,  29  N.  J.  Eq.  111. 

88  Wilson  r.  Piper,  77  Ind.  437. 

«4  Hoyt  V.  Hoyt,  85  N.  Y.  142 ;  Owens  v.  Clayton,  56  Md.  129 ;  Steene 
V.  Steele's  Admr.,  64  Ala.  438;  Taylor  v.  Harwell,  65  Id.  1;  Heslop  V. 
Gatton,  71  111.  528;  Kirkpatrick  v.  Chestnut,  5  S.  C.  216. 

42  657 


§  464  RENTS.  [part   II. 

liens  or  of  any  one  of  them  either  upon  the  particular  piece  of 
land,  or  upon  the  land  in  general  disposed  of  in  the  residuary 
devise.  Whenever  such  intention  is  made  plain  by  the  lan- 
guage of  the  will,  these  charges  could  be  made  upon  both  real 
and  personal  property  as  well  as  upon  the  residue  of  personal 
property  which  is  given  to  the  residuary  legatee.  No  partic- 
ular language  is  required  to  be  used  in  creating  the  express 
charge,  provided  the  intention  to  so  charge  the  property  with 
the  payment  of  the  legacy  or  debts  is  manifest  in  the  will. 
The  express  charges  of  property  with  the  payment  of  the 
debts  and  legacies  may  be  divided  into  two  classes.  In 
the  first  class  will  be  found  all  those  cases  where  the 
testator  devises  the  land  or  funds  expressly  for  the  pay- 
ment of  debts  and  legacies.  In  such  a  case  the  property  de- 
vised, or  funds  bequeathed,  will  be  expressly  charged  with 
the  payment  of  the  specified  debts  or  legacies,  but  the  devisee 
or  legatee  will  not  be  personally  liable  for  the  payment  of  such 
debts  or  legacies.  The  only  remedy  in  such  a  case  for  the 
beneficiaries  of  the  charge  will  be  against  the  property  which 
has  been  charged  with  the  payment  of  debts  and  legacies.  On 
the  other  hand,  the  second  class  cases  will  include  all  those 
where  the  language  employed  charges  the  devisee  or  legatee 
with  the  payment  of  a  debt  or  legacy  in  consideration  of  a  de- 
vise or  bequest  to  him.  In  such  a  case  the  charge  created  not 
only  a  lien  upon  the  property  devised  or  bequeathed,  but  like- 
wise imposed  a  personal  liability  upon  the  devisee  or  legatee, 
and  the  beneficiary  of  the  charge  can  proceed  against  the  devi- 
see personally  as  well  as  against  the  subject-matter  of  the  de- 
vise.*' 

65  Gardenville,  etc.,  Assn.  v.  Walker,  52  Md.  452 ;  Frampton  v.  Blume, 
129  Mass.  152;  Birch  v.  Sherratt,  L.  R.  2  Ch.  644;  Brook  v.  Beadley, 
L.  R.  4  Eq.  106,  3  Ch.  672.  For  liens  for  rent,  under  statute,  the  pro- 
vi.sions  of  the  various  State  laws  should  be  consulted.  See,  for  example, 
Staber  v.  Collins  (Iowa  1904),  100  N.  W.  Rep.  527. 

658 


CHAPTER  XVIIl. 

LICENSES. 

Section  465.  What  is  a  license  1 

466.  Revocation  of  the  license. 

467.  Revocation  of  license  —  Continued.  ' 

468.  How  licenses  are  created. 

§  465.  What  is  a  license?  —  A  license  is  an  authority  or 
power  to  make  use  of  land  in  some  specific  way,  or  to  do  cer- 
tain acts  or  a  series  of  acts  upon  the  land  of  another.  It  dif- 
fers from  an  easement  in  that  it  is  not  created  by  deed  or  by 
prescription,  and  hence  it  is  not  a  right  or  interest  issuing  out 
of  land,  no  jus  in  re;  simply  a  naked  authority.^  A  license- 
is  a  personal  interest  or  right,  which  is  terminated  either  by  the 
death  of  the  licensor  or  licensee,  or  by  the  sale  and  transfer  of 
the  land  without  notice  of  the  license,  and  which  cannot  be 
assigned  without  the  consent  of  the  licensor.^  The  licensee 
must  exercise  his  authority  in  a  reasonably  prudent  manner, 

1 "  A  license  is  a  personal  privilege  to  do  certain  acts  on  the  lands 
of  another,  and  is  revocable  at  will."  Howes  v.  Barmon  (Idaho  1905), 
81  Pac.  Rep.  48;  Taylor  v.  Waters,  7  Taunt.  374;  Blaisdell  v.  Railroad, 
51  N.  H.  485;  Wiseman  V.  Luckinger,  84  N.  Y.  31 ;  Mumford  v.  Whitney, 
15  Wend.  (N.  Y.)  384;  Post  v.  Pearsall,  22  Wend.  (N.  Y.)  425;  Oliver 
V.  Hook,  47  Md.  301 ;  Desloge  v.  Peace,  38  Mo.  588 ;  Fuhr  v.  Dean,  26; 
Mo.  116;  Dark  v.  Johnston,  55  Pa.  St.  164;  Foster  v.  Browning,  4  R.  L 
47;  Hazelton  V.  Putnam,  3  Finn.  (Wis.)  107;  s.  c.  3  Chand.  (Wis.)  117; 
8.  c,  54  Am.  Dec.  158;  De  Haro  V.  U.  S.,  5  Wall.  (U.  S.)  599;  2  Am. 
Lead.  Cas.  (5  ed.)   .549,  note. 

2Wickhara  v.  Hawker,  F.  M.  &  W.  77;  Coleman  v.  Foster,  37  Eng. 
I^aw  &  Eq.  489;  Ruggles  V.  Lesure,  24  Pick.  187;  Blaisdell  v.  Railroad, 
51  N.  H.  485;  Jackson  V.  Babcock,  4  Johns.  418;  Wolf  v.  Frost,  4  Sandf. 
Ch.  93;  Cox  V.  Levison,  63  N,  H.  283.  "A  license,  even  if  a  considera- 
tion is  paid  therefor,  is  revoked  by  the  death  of  the  licensor."  Clark  v. 
Strong  (N.  Y.  Sup.  1905),  93  N.  Y.  S.  614. 

659 


§   i66  LICENSES.  [part   II. 

and  he  will  be  held  liable  for  all  damages  resulting  from  his 
negligence  or  unskillf ulness ;  but  he  will  not  be  responsible  for 
any  damage,  which  is  but  the  natural  consequence  of  the  ex- 
ercise of  his  authority.' 

§  4(i\i.  Revocation  of  the  license. —  Since  the  license  does 
not  create  any  interest  or  estate  in  the  land,  as  a  general  prop- 
osition it  would  seem  that  the  continued  enjoyment  of  the  li- 
cense should  depend  upon  the  will  of  the  licensor.  But  the 
antagonism  of  interest  and  consequent  loss,  arising  from  the 
grant  and  subsequent  revocation  of  a  license,  have  produced, 
no  little  confusion  in  the  decisions  of  the  courts.  As  long 
as  the  license  remains  executory  there  can  certainly  be  no 
fixed  indefeasable  right  to  its  enjoyment.  The  licensee  has  no 
remedy  by  v/liich  he  may  e'njoin  the  licensor  from  prohibiting 
the  exercise  of  his  license,*  The  power  to  revoke  is  undoubted. 
So  also  ig  this  the  case  with  an  executed  license,  where  the 
revocation  will  leave  the  parties  in  the  same  condition  as  they 
were  before  the  license  was  granted.  Such  would  be  the 
case  of  a  license  to  fish  or  hunt  upon  another's  land,  or  to 
witness  some  performance,  as  where  one  purchases  a  ticket 
for  the  theater.  All  such  licenses  may  be  revoked  at  the  will 
of  the  licensor.  And  in  the  case  of  a  theatrical  performance 
or  other  show,  the  licensee  or  ticket  holder  may  be  bidden  to 
leave,  and  ejected  by  force  if  he  refuses  to  do  so,  even  though 
there  is  no  valid  cause  for  his  removal.^     But  the  revocation  of 

3  Selden  v.  Del.  &  Hud.  Canal  Co.,  29  N.  Y.  640 ;  Pratt  v.  Ogden,  34 
N.  Y.  20;  Kent  v.  Kent,  18  Pick.  569;  Webb  v.  Paternoster,  Palmer  71. 

4  Cook  V.  Stearns,  11  Mass.  533;  Sterling  v.  Warden,  57  N.  H.  217, 
12  Am.  Rep.  80;  Dodge  v.  McClintoek,  47  N.  H.  483;  Miller  v.  Au- 
burn, etc.,  R.  R.,  6  Hill.  61;  Veghte  v.  Rariton,  19  N.  J.  Eq.  154.  In 
the  late  case  of  Lytle  v.  James  (73  S.  W.  Rep.  287),  the  Court  of  Ap- 
peals, in  Missouri,  held  that  a  license  to  mine  granted  such  a  pos- 
sessory right  to  the  licensee  as  would  enable  him  to  enjoin  an  inter- 
ference with  his  rights,  by  third  parties.  For  full  discussion  of  licenses 
to  mine  and  transfer,  enjoyment  and  revocation  thereof,  see  White, 
Mines  &  Min.  Rem.,  Sees.  190  to  204,  pp.  256-270. 

BWood  V.  Leadbetter,  13  M.  &  W.  838;  Coleman  v.  Foster,  37  Eng. 
660 


CH.    XVIII.]  LICENSES.  §  466 

the  license  will  not  be  permitted  to  have  a  retroactive  effect, 
so  as  to  make  the  acts  done  by  the  licensee  upon  the  land  be- 
fore revocation  a  trespass,  or  to  make  him  liable  for  dam- 
ages flowing  naturally  from  the  exercise  of  his  authority.® 
And  if  there  is  a  valid  subsisting  contract  for  the  grant  and 
exercise  of  the  license,  the  revocation  of  the  license  will  consti- 
tute a  breach  of  the  contract,  for  which  the  licensor  will  be 
liable  in  an  action  for  damages.  And  so  also,  if  in  the  ex- 
ercise of  the  authority  the  licensee  has  taken  property  of  his 
own  upon  the  land  (as,  for  example,  where  he  erects  a  build- 
ing), or  acquires  a  title  to  personal  property  formerly  the 
property  of  the  licensor  (as  where  the  license  is  to  go  upon  the 
land  and  cut  trees  for  his,  the  licensee's,  own  use),  a  reason- 
able time  must  be  given  to  the  licensee  within  which^to  remove 
his  property.  To  that  extent,  under  such  circumstances,  is  the 
license  irrevocable.  The  revocation  does  not  vest  in  the  li- 
censor the  property  of  the  licensee  found  upon  the  land.' 

L.  &  Eq.  489;  Hill  V.  Hill,  113  Mass.  103,  18  Am.  Rep.  455;  Desloge 
V.  Pearce,  38  Mo.  599.  See  Ford  v.  Whitlock,  27  Vt.  268;  Quinn  v. 
Anderson,  70  Cal.  454,  11  Pac.  746;  Totel  v.  Bounefoy,  23  111.  App.  55, 
123  111.  653,  24  N.  E.  Rep.  687;  Williams  v.  Flood,  63  Mich.  487,  30 
N.  W.  Rep.  93.  Likewise,  a  license  to  cut  trees  is  revocable.  Hill  v. 
Hill,  113  Mass.  103,  18  Am.  Rep.  455;  Giles  v.  Simonds,  15  Gray  444; 
Tillotson  V.  Preston,  7  Johns,  285;  Westcott  v.  Delano,  20  Wis.  516; 
Roffey  V.  Henderson,  17  Q.  B.  586;  Ward  v.  Rapps  (Mich.),  44  N.  W. 
Rep.  934. 

«Hewlin8  v.  Shippam,  5  B.  &  C.  221;  Cook  v.  Stearns,  11  Mass.  633; 
Bridges  v.  Pureell,  I  Dev.  &  B.  496.  A  licensee  who  continues  to  exer- 
cise his  license  after  revocation  is  a  trespasser.  White,  Mines  &  Min. 
Rem.,  Sec.  203  and  cases. 

1  Wood  V.  Leadbetter,  13  M.  &  W.  856 ;  Ashmun  v.  Williams,  8  Pick. 
402;  Churchill  v.  Hulbert,  110  Mass.  42,  14  Am.  Rep.  578;  Burk  v. 
Hollis,  98  Mass.  56;  White  v.  Elwell,  48  Me.  360;  Town  v.  Hazen,  51 
N.  H.  596;  Smith  v.  Goulding,  6  Cush.  165;  Desloge  v.  Pearce,  38  Mo. 
599.  "Consent  by  the  owner  of  the  fee  that  an  adjoining  proprietor 
may  drain  his  land  by  cutting  a  ditch  over  the  land  of  the  one  giving 
the  consent  creates  an  irrevocable  license,  where  the  licensee,  on  the 
faith  of  the  license,  expends  money  and  erects  valuable  improvements 
necessary  to  enjoy  the  license."  Brantley  t;.  Perry  (Ga.  1904),  48  S.  E. 
Rep.  332.    "A  license  is  but  a  profit  a  prendre,  and  differs  from  an 

661 


§  467  LICENSES.  [part  n. 

§  467.  Revocation  of  license  —  Continued. —  Where  the  li- 
censee in  the  exercise  of  his  license  has  been  put  to  consider- 
able expense,  and  a  revocation  of  the  license  results  in  great 
damage  to  the  licensee,  because  of  the  impossibility  to  place  the 
parties  in  statu  quo,  whether  the  license  can  be  revoked  has 
been  differently  decided.  A  large  number  of  the  courts  have 
held  that  such  a  license  is,  nevertheless,  revocable,  and  the 
revocation  will  not  render  the  licensor  liable  to  any  action  for 
damages.^  While,  on  the  other  hand,  a  number  of  the  cases 
maintain,  on  the  equitable  grounds  of  estoppel  and  part  per- 
formance of  a  contract,  that  the  license  is  irrevocable  in  such 
cases.®  If  the  authority  is  connected  with,  or  is  exercised  in 
pursuance  of,  a  contract  for  the  grant  of  an  easement,  the  li- 
censee may  prevent  a  revocation  by  an  action  for  specific 
performance  of  the  contract  for  an  easement.^**  But  a  simple 
license,  which  is  not  in  the  nature  of  an  executory  contract 
for  the  future  grant  of  an  easement,  not  being  an  incorporeal 
hereditament  or  an  estate  in  lands,  is  not  an  indefeasible  fixed 
right,  and  can  therefore  be  revoked.     Perhaps  a  failure  to  ob- 

easement  in  that  it  can  be  held  apart  from  the  possession  of  the  land." 
Arnold  v.  Bennett,  92  Mo.  App.  at  p.  159;  Chitwood  v.  Lanyon  Zinc  Co., 
93  Mo.  App.  225;  White,  Mines  &  Min.  Rem.,  Sec.  192. 

8  Cocker  v.  Cowper,  1  Cromp.  M.  &  R.  418;  Fentiman  v.  Smith,  4 
East  107;  Hetfield  v.  Centre  R.  R.,  29  N.  J.  L.  571;  Hazleton  v.  Put- 
nam, 3  Chand.  (Wis.)  117;  St.  Louis  Nat.  Stock  Yards  v.  Wiggins 
Ferry  Co.,  112  111.  380. 

0  Rerick  v.  Kern,  14  Serg.  &  R.  267 ;  Huff  v.  McCauley,  53  Pa.  St. 
209;  Cook  V.  Prigden,  45  Ga.  331;  Beatty  v.  Gregory,  17  Iowa  114; 
Snowden  v.  Wilas,  19  Ind.  14.  In  others  of  the  States,  a  middle 
ground  is  taken,  that  the  licensor  cannot  revoke  the  license  until  he  has 
re-imbursed  the  licensee  for  his  expenditures.  See  Woodbury  v. 
Parshlly,  7  N.  H.  237;  Addison  v.  Hack,  2  Gill  221;  Rhodes  v.  Otis,  33 
Ala.  600,  and  cases  cited  supra  from  Iowa  and  Indiana.  For  revocation 
of  license  to  mine,  see  White,  Mines  &  Mining  Rem.,  Sec.  202. 

10  Veghte  v.  Raritan  Co.,  19  N.  J.  Eq.  153 ;  Williamston,  etc.,  R.  R.  v. 
Battle,  66  N.  C.  546.  "  A  verbal  contract  giving  a  railroad  a  right  to 
enter  upon  land  and  remove  sand  therefrom  cannot  be  revoked  by  the 
landowner  by  giving  the  railroad  notice  to  leave  the  premises."  Cox  v. 
St.  Louis  M.  &  S.  E.  Ry.  Co.  (Mo.  App.  1905),  85  S.  W.  Rep.  989. 
662 


CH.   XVni.]  LICENSES.  §  467 

serve  this  distinction  has  been  the  cause  of  the  doubt  and  con- 
fusion to  be  met  with  in  the  cases.  ^^  Perhaps  the  better  rule 
is  that  where  the  licensor  revokes  his  license  in  violation  of  a 
valid  subsisting  contract  for  its  continuance,  and  thereby  pro- 
duces damage  to  the  licensee,  such  damages  should  be,  and  are, 
recoverable  in  an  action  for  the  breach  of  the  contract.^*  But, 
as  a  corollary  to  the  above  proposition,  it  may  be  suggested 
that  where  the  length  of  the  enjoyment  of  the  license  is  indefi- 
nite, as  where  the  license  is  to  erect  and  maintain  a  house, 
that  being  a  bargain  for  a  permanent  interest  in  land  in  the 
nature  of  an  easement,  it  can  be  granted  only  in  the  way  in 
which  such  interests  are  required  to  be  created,  viz. :  by  deed, 
and  therefore  no  action  for  damages  will  lie  for  its  revocation. 
But  a  license  upon  sufficient  consideration  to  cut  and  take 
away  a  certain  number  of  trees  or  to  dig  ^or  minerals  for  a 
specific  time,  and  the  like,  are  valid,  subsisting  contracts,  and 
the  revocation  of  the  license  would  be  a  breach  of  it,  for  which 
the  licensor  may  be  held  liable.^' 

11 A  further  distinction,  drawn  from  the  law  of  Easements,  would 
serve  to  suggest  the  most  rational  doctrine.  If  the  license  only  involves 
the  abandonment  of  the  licenser's  easement  upon  the  licensee's  land,  and 
imposes  no  direct  burden  upon  the  licenser's  land,  the  license  is  irrevo- 
cable, for  an  easement  may  be  abandoned  by  parol.  But  if  the  license 
involves  the  permanent  use  of  the  licenser's  land,  and  structures  are 
to  be  maintained  upon  it,  since  that  is  nothing  more  than  the  grant  of 
the  easement,  it  may  be  revoked,  if  not  granted  by  deed.  This  appears 
to  be  the  position  of  the  Illinois  courts.  See  Russell  v.  Hubbard,  59 
111.  337 ;  2  Washburn  on  Real  Prop.  636,  639.  See  also  Winter  v.  Rock- 
well, 8  East.  308;  Hewlins  V.  Shippam,  5  B.  &  C.  221;  Morse  v.  Cope- 
land,  2  Gray  202;  Dyer  v.  Sandford,  9  Mete.  395;  Veghte  v.  Raritan 
Co.,  19  N.  J.  Eq.  153;  Addison  v.  Hack,  2  Gill  211;  Jamieson  v.  Mille- 
man,  3  Duer  255;  Hazleton  V.  Putnam,  4  Chand.  (Wis.)  124.  "A 
license  to  do  certain  acts  on  the  lands  of  another  may  rest  in  parol." 
Howes  V.  Barmon  (Idaho  1905),  81  Pac.  Rep.  48. 

12  Whitmareh  v.  Walker,  1  Mete.  316;  Giles  v.  Simonds,  15  Gray  444. 

18 "  Except  in  extreme  cases  the  court  cannot  determine  as  a  mat- 
ter of  law  whether  the  reasonable  time  within  which  the  grantee  of  a  tim- 
ber privilege  should  exercise  the  same  has  or  has  not  expired."  Brinson 
&  Co.  V.  Kirkland  (Ga.  1905),  60  S.  E.  Rep.  369.     See,  for  full  discus- 

663 


§  468  LICENSES.  [part   II. 

§  468.  How  licenses  are  created. —  Licenses  may  be  created 
either  by  express  agreement,  by  parol,"  or  they  may  be  im- 
plied from  the  inducements  and  representation  of  the  land 
owner.  Thus,  merchants,  professional  men  and  aritsans  im- 
pliedly give  to  the  public  a  license  to  enter  their  places  of  busi- 
ness for  the  purpose  of  transacting  business.  Such  would  also 
be  the  case  between  persons  sustaining  social  relations,  in  re- 
spect to  the  right  to  enter  each  other's  premises  for  the  pur- 
pose of  visiting.^" 

sion  of  licenses  to  mine  and  the  late  decisions  on  this  particular  license 
in  land,  White,  Mines  &  Min.  Rem.,  Sees.  190,  204. 

"Wood  f.  Leadbetter,  13  M.  &  W.  838;  King  v.  Horndon,  4  M.  & 
Sel.  562;.Muskett  v.  Hill,  5  Bing.  N.  C.  694;  Doolittle  v.  Eddy,  7  Barb. 

18  Martin  v.  Houghton,  45  Barb.  60 ;  Adams  v.  Truman,  12  Johns.  408 ; 
Gowan  v.  Phila.  Exchange  Co.,  5  Watts  &  S.  141 ;  Kay  v.  Penn.  R.  R.,  65 
Pa.  St.  273;  Sterlin*r.  Warden,  51  N.  H.  231,  12  Am.  Rep.  80.  In 
Alabama,  a  v.erbal  license  to  mine  or  remove  part  of  the  corpus  of  the 
estate,  is  void.  Riddle  v.  Brown,  20  Ala.  412.  See  also  Desloge  v. 
Peirce,  38  Mo.  595 ;  Lunsford  v.  LaMotte,  54  Mo.  426.  "  In  Utah  it  ia 
held,  a  mere  verbal  permission  to  mine,  acted  upon,  cannot  be  revoked, 
except  by  forfeiture  for  breach  of  condition."  Ruffati  v.  Societe  des 
Mines,  &c.,  10  Utah  386,  37  Pac.  Rep.  591.  And  see,  also.  Young  ». 
Ellis  (Va. ),  21  S.  E.  Rep.  480.  In  the  absence  of  express  authority,  a 
license  granted  by  the  general  manager  of  a  corporation  is  void.  Butte, 
&c.,  Co.,  V.  Ore  Purch.  Co.,  21  Mont.  539,  55  Pac.  Rep.  112;  White^ 
Mines  &  Mining  Rem.,  Sec.  194. 
664 


PART   III 


TITLES 

Chapter    XIX.    General   Classification    of 

Titles. 

XX.      Title  by  Descent. 

XXI.     Title  by  Original  Acquisi- 
tion. 

XXII.     Title  by  Grant. 

XXIII.  Deeds,     Their     Requisites 

and  Component  Parts. 

XXIV.  Title  by  Devise. 
XXV.     Registration  of  Titles. 


665 


CHAPTER  XIX. 

TITLES — GENERAL   CLASSIFICATION   OP    TITLES. 

Section  469,  What  is  title?  —  By  descent  and  purchase. 
470.  Original  and  derivative  titles. 

§  469.  What  is  title?  —  By  descent  and  purchase. —  A  title 
is  the  means  by  which  one  may  acquire  a  right  of  ownership  in 
things ;  Justa  causa  possidendi  quod  nostrum  est}  When  ap- 
plied to  real  property,  titles  may  be  divided  into  two  general 
classes,  title  by  descent  and  title  by  purchase.  Title  by  de- 
scent is  that  title  which  one  acquires  by  law  as  heir  to  the 
deceased  owner.  It  is  cast  upon  the  heir  with  or  without 
his  consent.  His  assent  is  not  necessary,  and  he  cannot  by 
any  disclaimer  divest  himself  of  the  title  so  acquired.^  Every 
other  kind  of  title,  whether  vested  by  act  of  the  parties  or  by 
operation  of  the  law,  is  called  a  title  by  purchase.  The  party, 
in  whose  favor  it  is  created,  must  accept  it  in  order  that  any 
title  may  pass,  either  expressly  or  by  acts  which  clearly  indi- 
cate his  assent.  But  he  cannot  be  compelled  to  accept  unless 
he  has  placed  himself  under  obligations  by  a  valid  contract 
of  sale.* 

§  470.  Original  and  derivative  titles. —  Titles  by  purchase 
may  be  again  subdivided  into  original  and  derivative.     An 

1  Co,  Lit.  345  b  ;  3  Washburn  on  Real  Prop.  1,  2 ;  Bart,  on  Real  Prop., 
Sec.  314. 

2  Co.  Lit.  191  a,  note  77,  Sec,  6,  1;  Bac,  Law  Tracts  128;  2  Bla. 
Com.  201 ;  Williams  on  Real  Prop,  97 ;  Womack  v.  Womack,  2  La,  An, 
339.  But  he  may  formally  renounce  in  Louisiana,  Reed  v.  Crocker,  12 
La.  An.  436. 

s  3  Cruise  Dig.  317;  Co.  Lit.  18  b,  note  106;  4  Kent's  Com.  373;  Will- 
iams on  Real  Prop.  96,  97;  Nicholson  v,  Wardsworth,  2  Swanst,  366, 
372. 

667 


§    470    '  CLASSIFICATION   OP   TITLES.  [PART   III. 

original  title  is  one  which  is  acquired  solely  by  act  of  the  party 
slaiming  it,  and  is  obtained  by  his  entry  into  possession.  It  is 
a  general  rule  of  both  natural  and  civil  law,  that  things  under 
dominion  of  no  person  may  become  the  property  of  any  one 
by  mere  entry  into  possession,  and  it  includes  not  only  those 
things  which  have  never  been  under  the  dominion  of  any  one, 
but  also  those,  the  dominion  over  which  has  been  lost  or 
abandoned.  Derivative  title  is  that  by  which  property  is 
acquired  from  another,  in  whom  the  right  of  property  has 
been  vested.  It  involves  the  idea  of  a  transfer  or  assign- 
ment of  the  right  of  property  from  one  to  another.  This 
transfer  may  be  affected  by  act  of  the  former  owner,  as  by 
conveyance  inter  vivos,  or  testamentary  disposition,  or  it  may 
be  by  operation  of  law,* 

*Thi8  subdivision  is  very  generally  used  by  the  continental  jurists 
instead  of  the  division  of  titles  into  descent  and  purchase.  See  Holtzen- 
dorff's  Encyclopaedie  der  Rechtswissenschaft,  pp.  386-390.  It  is  here 
introduced  in  the  belief  that  the  distinction  might  serve  to  explain  a 
few  difficult  questions  which  arise  in  respect  to  several  kinds  of  titles, 
more  notably  titles  by  limitation  and  estoppel,  as  they  are  called  by 
the  different  authors.  It  will  be  observed  that  in  the  present  work 
they  are  not  considered  as  modes  of  acquiring  titles  —  only  modes  of 
perfecting  titles  already  acquired  by  destroying  or  nullifying  other 
outstanding  rights  or  titles  in  other  persons.  See  post,  Sees.  607,  513, 
514. 

668 


CHAPTER  XX. 

TITLE  BY  DESCENT. 

Section  471.  Definition. 

472.  Lex  loci  ret  aitce. 

473.  Consanguinity  and  affinity. 

474.  How  lineal  heirs  take. 

475.  Lineal  consanguinity  in  the  ascending  series. 

476.  Collateral  heirs. 

477.  Computation  of  collateral  relationship. 

478.  Ancestral  property. 

479.  Kindred  of  the  whole  and  half  blood. 

480.  Advancement  —  Hotchpot. 

481.  Posthumous  children. 

482.  Illegitimate  children. 

483.  Alienage  a  bar  to  inheritance. 

§  471.  Definition. —  Title  by  descent  is  that  title,  by  which 
one  acquires,  by  operation  of  law,  upon  the  death  of  the  owner, 
the  estates  of  inheritance,  which  the  deceased  has  not  dis- 
posed of  in  any  other  manner.  The  person  from  whom  the 
property  descends  is  called  the  ancestor.^  The  person  who 
is  appointed  by  the  law  to  take  the  estates  is  called  the  heir. 
Technically,  one  who  takes  property  under  a  will  is  not  an 
heir.  And  the  word  heir  is  also  confined  to  those  persons  who 
take  the  real  estate.  One  cannot  be  an  heir  to  personal  prop- 
erty.^ The  heirs  cannot  be  ascertained  until  the  death  of  the 
ancestor.     Nemo  est  hares  viventis.^    The  heir  never  takes  in 

1  In  that  sense  a  child  might  be  the  ancestor  of  his  parents,  a  grand- 
child the  ancestor  of  his  grandparents.  3  Washburn  on  Real  Prop.  18; 
Prickett  V.  Parker,  3  Ohio  St.  390;  Williams  on  Real  Prop.  105.  This 
was  opposed  to  the  common  law,  according  to  which  "  the  inheritance 
lineally  descends,  but  never  lineally  ascends."     See  post,  Sec.  475. 

2Bac.  Law  Tracts  128;  Co.  Lit.  191  a,  note  77;  Donahue's  Estate,  36 
Cal.  329 ;  Lincoln  v.  Aldrich,  149  Mass.  368. 

8  2  Bla.  Com.  208;  3  Washburn  on  Real  Prop.  6;   Wlliams  on  Real 

G69 


§    471  TITLE   BY   DESCENT.  [PART   III. 

pursuance  of  the  deceased  owner's  intention  or  will;  conse- 
quently no  one,  who  by  law  is  entitled  to  the  property  as 
heir,  can  be  shut  out  from  his  inheritance  by  any  act  of  the 
ancestor,  unless  such  act  amounts  to  a  disposition  of  the 
property  by  will.*  And  even  where  a  will,  disposing  of  all  the 
ancestor's  property,  is  produced,  if  it  be  shown  that  the  omis- 
sion of  the  name  of  an  heir,  especially  if  it  be  a  child  or  a 
grandchild,  is  the  result  of  an  accident,  and  that  the  testator 
fully  intended  that  he  also  should  take  under  the  will,  such 
heir  will  be  permitted  to  take  the  share  of  the  estate  to  which 
he  would  have  been  entitled  if  the  ancestor  had  died  intestate. 
And  in  the  absence  of  direct  proof  of  the  testator's  intention, 
the  failure  to  mention  the  particular  heir  will  raise  the  pre- 
sumption that  the  omission  was  accidental.''  Immediately 
upon  the  death  of  the  ancestor,  the  title  to  all  his  estates  of 
inheritance  vests  in  the  heirs,  subject  to  the  widow's  dower 
and  husband's  tenancy  by  the  curtesy,  and  the  claims  of 
the  ancestor's  creditors.^  And  if  lands  have  to  be  sold  for  any 
purpose,  the  proceeds  of  sale  would  descend  as  real  estate, 

Prop.  96.  But  in  common  parlance  persons  are  recognized  as  possible 
heirs  to  a  certain  individual  if  they  should  survive  him.  And  in  view  of 
the  existence  of  this  possibility,  the  common  law  made  use  of  the  two  ex- 
pressions, heirs  presumptive,  and  heirs  apparent.  An  heir  presumptive 
is  one  who  would  be  the  heir  if  the  ancestor  were  to  die  at  the  contem- 
plated time,  but  whose  possibility  of  inheritance  may  be  destroyed  by 
the  birth  of  some  one  more  nearly  related,  as  well  as  by  his  death  be- 
fore the  ancestor.  An  heir  apparent  was  one  who  was  sure  to  inherit, 
if  the  ancestor  died  in  his  life-time.  These  terms  are  of  no  practical 
importance,  as  no  rights  of  property  are  acquired  by  such  parties  which 
the  law  in  any  way  recognizes.  Gardner  v.  Pace  (Ky),  11  S.  W.  Rep. 
779.     See  Lockwood  v.  Jessup,  9  Conn.  228. 

4  Augustus  V.  Seabolt,  3  Mete.  (Ky.)  161;  Roosevelt  V.  Fulton,  7 
Cow.  71. 

5  Beck  V.  Metz,  25  Mo.  70;  Gage  V.  Gage,  29  N.  H.  533;  Bancroft  V. 
Ives,  3  Gray  367;  Shelby  V.  Shelby,  6  Dana  60;  Bradley  V.  Bradley,  24 
Mo.  311. 

«  Willis  V.  Watson,  5  111.  64;  Hays  v.  Jackson,  6  Mass.  149;   Covvell 
V.  Weston,  20  Johns,  414;  Hillhouse  V.  Chester,  3  Day  166.     See  contra, 
Telfair  t;.  Roe,  2  Cranch  407;  Albriton  v.  Bird,  R.  M.  Charlt.  93. 
670 


CH.    XX.]  TITLE   BY   DESCENT.  §   473 

to  the  persons  who  would  have  inherited  the  lands.'  He  is 
entitled  to  the  rents  and  profits  to  the  estate  until  sold  for 
the  benefit  of  the  creditors,  even  though  the  estate  is  insolv- 
ent.* The  heir  need  not  offer  proof  that  his  ancestor  died 
intestate.     Intestacy  is  presumed  until  a  will  is  produced.* 

§  472.  Lex  loci  rei  sitae. —  The  descent  of  real  property  is 
governed  by  the  law  of  the  place  where  the  land  is  situated, 
the  lex  loci  rei  sitce.  The  law  of  the  domicile,  lex  domicilii, 
does  not  apply  to  real  property.  And  that  law  of  descent  gov- 
erns, which  was  in  force  at  the  decease  of  the  ancestor."  The 
law  of  descent  varies  according  to  the  civil  polity  of  each 
State,  or,  as  Blackstone  has  it,  it  is  *  *  the  creature  of  civil  polity 
and  juris  positivi."  In  every  State  of  the  American  Union 
there  is  a  statute  regulating  the  descent  of  real  property,  and 
for  any  special  questions  arising  under  the  law  of  descent 
reference  must  be  had  to  the  statute  of  the  State  in  wnicn 
the  land  lies.  But  these  statutes  have  many  points  in  com- 
mon, and  are  controlled  by  certain  general  principles  which 
may  be  collated  and  presented  in  a  work  of  this  character. 
But  for  the  minor  details  of  the  law,  the  inquirer  must  look 
to  the  State  statutes,  an  excellent  compendium  of  which  may 
be  found  in  the  third  volume  of  Mr.  Washburn's  Treatise  on 
the  Law  of  Real  Property.^^ 

§  473.  Consanguinity  and  affinity. —  Only  those  persons  can 
olaim  as  heirs  of  a  deceased  intestate  who  are  in  some  way  re- 
lated to  him.     Relationship  is  of  two  kinds,  consanguinity  and 

t  Wells  V.  Seeley,  47  Hun  109 ;  Thompson's  Estate,  6  Mackey  536 ;  Jn 
re  McCabe,  15  R.  I.  330,  5  Atl.  79. 

8  Gibson  v.  Farley,  16  Mass.  280;  Boynton  v.  Peterborough,  etc.,  R. 
R.  Co.,  4  Cush.  467;  Allen  v.  Van  Houton,  19  N.  J.  L.  47.  Contra, 
Branch  Bk.  V.  Fry,  22  Ala.  790. 

»Lyon  V.  Kain,  36  111.  368;  Baxter  v.  Bradbury,  20  Me.  260;  Stephen- 
son  V.  Doe,  8  Blackf.  508. 

10  Story  on  Confl.,  Sec.  484;  Potter  r.  Titcomb,  22  Me.  300;  Emmert 
V.  Hays,  88  HI.  11;  Brewer  r.  Cox   (Md.),  18  Atl.  Rep.  864. 

11  3  Washburn  on  Real  Prop.,  p.  21  e«  auh. 

671 


§    473  TITLE   BY   DESCENT.  [PART   III. 

affinity.  Consanguinity  is  that  relationship  which  arises  from 
a  community  of  blood,  and  exists  between  persons  who  are  de- 
scended from  a  common  ancestor.  This  common  ancestor  is 
called  the  stirps,  or  root.  Consanguinity  is  again  divided  into 
lineal  and  collateral.  Lineal  consanguinity  exists  between 
persons  who  descend  one  from  the  other  in  the  direct  or  single 
line  of  descent.  Father,  grandfather,  etc.,  in  the  ascending 
.series,  and  son,  grandson,  etc.,  in  the  descending  series,  are 
related  by  lineal  consanguinity.  Collateral  consanguinity  is 
where  the  relationship  is  traced  through  different  lines  of  de- 
scent up  to  the  common  ancestor.  Thus,  brothers,  cousins, 
nephews,  and  uncles,  etc.,  are  related  by  collateral  consan- 
guinity, respectively^  through  the  common  father  and  grand- 
father.^* Affinity  is  the  relationship  created  between  parties 
by  marriage,  either  of  themselves,  or  of  their  respective  rela- 
tives. Thus,  husband  and  wife,  and  their  respective  fathers 
and  mothers-in-law,  and  the  like,  are  related  by  affinity.  At 
common  law  only  kindred  by  consanguinity  could  inherit  from 
the  deceased.  And  this  rule  was  so  strictly  observed  that 
even  the  husband  or  wife  could  not  lay  claim  to  the  prop- 
erty of  each  other  as  heir.  It  would  be  escheated  to  the 
State  instead  of  vesting  in  such  relations.^^  But  at  the  pres- 
ent day,  in  a  large  number  of  the  American  States,  hus- 
band and  wife  are  made  capable  by  statute  of  inheriting  from 
each  other.  Ih  some  States  they  inherit  equally  v/ith  the 
children  and  the  descendants  of  deceased  children,  while  in 
others  they  inherit  only  in  the  absence  of  lineal  descendants, 
and  in  some  they  are  even  postponed  to  collateral  heirs.^* 

i2An/e,  idem,  pp.  9  &  10;  2  Bla.  Com.  pp.  202,  206. 

isBla.  Com.  246.  See  Esty  v.  Clark,  101  Mass.  36,  3  Am.  Rep.  320; 
Lord  V.  Bourne,  63  Me.  308,  18  Am.  Rep.  234;  Cleaver  V.  Cleaver,  39 
Wis.  96,  20  Am.  Rep.  30. 

14  See  Shaw  r.  Breeze,  12  Ind.  392;  Nicholas  V.  Parczell,  21  Iowa  265. 
Statutory  rules  of  this  character  are  to  be  found  in  Alabama,  Arkansas, 
California,  Dakota,  Georgia,  Illinois,  Iowa,  Massachusetts,  Maryland, 
Michigan,  Minnesota,  Missouri,  North  Carolina,  Nebraska,  Pennsyl- 
vania, Rhode  Island,  South  Carolina,  Vermont,  Wisconsin.  3  Washburn 
672 


CH.    XX.]  TITLE   BY   DESCENT.  §   474 

§  474.  How  lineal  heirs  take. —  According  to  the  common 
law,  the  real  estate  descended  to  the  eldest  son,  to  the  exclusion 
of  the  other  sons  and  daughters;  and  if  there  be  no  sons 
then  the  daughters  inherited  in  equal  shares.  This  was  known 
as  the  law  of  primogeniture.^^  And  even  where  according  to 
local  custom,  as  was  the  case  with  lands  held  by  tenure  of  gav- 
el kind,  the  law  of  primogeniture  did  not  prevail,  the  sons 
would  inherit  equally  to  the  exclusion  of  the  daughters  and 
their  descendants.'®  But  neither  of  these  English  rules  has 
ever  been  in  force  in  this  country,  and  the  universal  rule  is 
that  the  lineal  descendants  in  the  descending  series  inherit 
equally,  no  distinction  being  made  between  males  and  fe- 
males." If  the  lineal  descendants  are  all  in  the  same  de- 
gree removed  from  the  intestate  ancestor,  they  will  inherit 
equally,  and  are  said  to  take  per  capita.  But  if  they  are  re- 
moved in  different  degrees,  or  where  they  consist  of  a  son, 
or  daughter,  and  the  children  of  a  deceased  son  or  daughter, 
the  children  would  inherit  only  that  share  of  the  deceased's 
estate  to  which  their  father  or  mother  would  have  been  en- 
titled, if  he  or  she  had  survived  the  deceased.  Thus,  in  the 
given  case,  the  estate  would  be  divided  into  two  equal  parts, 
the  surviving  son  or  daughter  taking  the  one  part,  while  the 
other  part  would  be  divided  among  the  children  of  the  de- 

on  Real  Prop.  21,  note.  "  A  plural  wife  does  not  acquire  the  status 
of  a  lawful  wife,  and  is  without  the  pale  of  the  law  of  inheritance  as 
to  any  property  which  her  husband  has  acquired  previous  to  her 
marriage  or  which  he  may  thereafter  acquire."  Raleigh  v.  Wells  (Utah 
190.5),  81  Pac.  Rep.  908;  Mutual  Inv.  Co.  v.  Raleigh,  Id.  See  Castleman 
r.  Castleman  (Mo.  1904),  83  S.  W.  Rep.  757;  La  Grange  Mills  v.  Kener 
(N.  C.  1904),  49  S.  E.  Rep.  300. 

"3  Washburn  on  Real  Prop.  7;  1  Spence  Eq.  Jur.  175,  176;  2  Bla. 
Com.  214,  21.5. 

"  3  Washburn  on  Real  Prop.  7;  2  Bla.  Com.  234;  2  Bla.  Com.  84. 

"  3  Washburn  on  Real  Prop.  8,  9,  12 ;  Walker's  Am.  Law  353 ;  4  Kent's 
Com.  378.  In  respect  to  the  equality  of  inheritance  by  lineal  heirs,  the 
American  law  bears  a  close  resemblance  to  the  Roman  law  of  descent. 
Coop.  Just.  543.  See,  Smith  v.  McDonald  (N.  J.  1905),  61  Atl.  Rep. 
4.53. 

«  673 


§    476  TITLE   BY    DESCENT.  [PART   III, 

ceased  child.  This  is  called  inheritance  per  stirpes,  or  by  rep- 
resentation. At  common  law  all  lineal  descendants  took  per 
stirpes,  but  the  rule  in  this  country  is  generally  limited  to  the 
case  of  descendants  of  unequal  degrees  of  removal  from  the 
ancestor." 

§  475.  lineal  consanguinity  in  the  ascending  series. —  It 
was  a  canon  of  the  common  law  that  the  inheritance  could 
never  fall  to  persons  related  to  the  deceased  in  the  ascend- 
ing Series.  Thus,  parents,  grandparents,  etc.,  of  the  deceased 
could  not  inherit.^®  If,  therefore,  there  were  no  lineal  de- 
scendants, i.  e.,  issue,  the  property  would  have  descended  to 
the  collateral  kindred  to  the  exclusion  of  the  lineal  relations 
in  the  ascending  line.^"  But  this  rule  has  now  generally  been 
changed  by  statute,  and  the  lineal  heirs  in  the  ascending  series 
will  take  in  preference  to  collateral  kindred.  ^^ 

§  476.  Collateral  heirs. —  But  if  there  be  no  lineal  descend- 
ants, and  no  lineal  heirs  in  the  ascending  line,  or  no  statute 
permitting  such  heirs  to  inherit,  the  estate  descends  to  the 
collateral  kindred  in  the  nearest  degree  of  relationship  to  the 

18  Chase.  Bla.  Com.  389,  n,  6;  Walker's  Am.  Law  354;  4  Kent's  Com. 
379,  391,  408;  3  Washburn  on  Real  Prop.  12,  13.  See  Skinner  V.  Fulton, 
39  111.  484;  Den  v.  Smith,  2  N.  J.  L.  7. 

19  33  Washburn  on  Real  Prop.  10 ;  2  Bla.  Com.  208,  209. 

20  3  Washburn  on  Real  Prop.  11;  2  Bla.  Com.  209;  Taylor  v.  Bray,  32 
N.  J.  L.  182. 

21  Williams  on  Real  Prop.  105,  106;  Morris  v.  Ward,  36  N.  Y.  587;  2 
Bla.  Com.  220;  4  Kent's  Com.  395  n;  Smallmann  V.  Powell,  18  Or.  367, 
23  Pac.  Rep.  249;  Power  V.  Daugherty,  83  Ky.  187.  The  rule  is  estab- 
lished by  statute  in  Alabama,  Arkansas,  California,  Connecticut,  Da- 
kota, Delaware,  Florida,  Georgia,  Illinois,  Indiana,  Iowa,  Kansas,  Ken- 
tucky, Louisiana,  Maine,  Massachusetts,  Maryland,  Michigan,  Minne- 
sota, Mississippi,  Missouri,  Nebraska,  New  Hampshire,  New  Jersey, 
New  York,  Ohio,  Oregon,  Pennsylvania,  Rhode  Island,  South  Carolina, 
Texas,  Tennessee,  Vermont,  Virginia,  Wisconsin.  3  Washburn  on  Real 
Prop.  21,  note.  But  see  Morse  17.  Hayden,  82  Me.  227,  19  Atl.  Rep.  443; 
Smith  V.  McDonald  (N.  J.  1905),  61  Atl.  Rep.  453. 

674 


CH.    XX.]  TTTLE   BY   DESCENT.  §   477 

deceased.**  And  at  common  law  the  doctrine  of  inheritance 
per  stirpes,  or  by  representation,  as  above  explained,  was  ap- 
plied to  collateral  kindred  ad  infinitum;  but  the  doctrine  in 
the  United  States  has  generally  been*  limited  in  its  applica- 
tion to  the  descendants  of  brothers  and  sisters,  while  in  the 
case  of  all  other  collateral  kindred  the  inheritance  is  divided 
per  capita.''^ 

§  477.  Computation  of  collateral  relationship.— There  are 
two  modes  of  computing  the  degree  of  collateral  relationship ; 
one  according  to  the  canon  and  common  law,  and  the  other 
according  to  the  civil  or  Roman  law.  By  the  first  rule  the  re- 
lationship is  ascertained  by  counting  the  number  of  degrees  or 
generations  accruing  between  the  common  ancestor  and  the 
most  remote  descendant.  According  to  this  mode  of  computa- 
tion, first  cousins  are  related  in  the  second  degree;  so  also 
are  nephews  and  uncles.  The  civil  rule  is  to  count  the  num- 
ber of  degrees  or  generations  between  the  deceased  and  the 
common  ancestor,  and  down  again  to  the  descendant,  whose- 
relationship  with  the  deceased  is  in  question.  Thus,  by  this; 
mode,  brothers  would  be  related  in  the  second  degree,  cousins; 
in  the  fourth,  and  nephew  and  uncle  in  the  third.**  In  the 
American  States  the  civil  mode  of  computation  is  generally 
adopted  by  the  courts,  while  in  some  of  the  States  it  is  by 
statute  made  the  rule  of  computation.*" 

22  2  Bla.  Com.  220;  3  Washburn  on  Real  Prop.  11;  Williams  on  Real 
Prop.  100. 

23Quinby  f.  Higgins,  14  Me.  309;  Levering  v.  Highee,  2  Md.  Ch.  81; 
Skinner  v.  Fulton,  39  111.  484.  This  limitation  is  established  by  statute 
in  Alabama,  California,  Connecticut,  Delaware,  Georgia,  Maine,  Massa- 
chusetts, Mississippi,  Michigan,  Minnesota,  Maryland,  Wisconsin,  New 
Hampshire,  New  Jersey,  Oregon,  South  Carolina,  Tennessee,  Vermont. 
See  Swazey  v.  Jaques,  144  Mass.  135;  Fletcher  v.  Severs,  10  N.  Y.  S.  6. 
In  Pennsylvania  the  rule  is  more  extended,  but  not  unlimited.  3  Wash- 
burn on  Real  Prop.  21,  note.  See  Logon  v.  Bean's  Admr.  (Ky.  190.5),  87 
S.  W.  Rep.  1110;  /n  re  N.  Y.  Sec.  &  Tr.  Co.,  94  N.  Y.  S.  93,  46  Misc.  Rep. 
224. 

24  3  Washburn  on  Real  Prop.  10;  2  Bla.  Com.  206,  207. 

J»3  Washburn  on  Real  Prop.  10;  McDo\frell  v.  Adams,  45  Pa.  St.  430; 

675 


§    479  TITLE   BY    DESCENT.  [PART   III, 

§  478.  Ancestral  property. —  This  term,  when  used  in  the 
law  of  descent,  signifies  the  property  which  the  intestate 
himself  acquires  by  descent.-"  Where  the  property  is  acquired 
by  purchase  by  the  intestate,  since  the  common-law  preference 
of  males  over  females  does  not  preyail  here,  all  the  collateral 
kindred  of  equal  degree  would  inherit  alike,  whether  they 
are  paternal  or  maternal  relatives.  But  according  to  the 
common  law,  no  one  could  be  heir  to  ancestral  property,  un- 
less he  is  likewise  the  heir  of  the  last  purchaser."  But  in 
the  United  States  it  would  seem  that  no  such  distinction  is 
made  between  property  acquired  by  purchase  and  by  de- 
scent, unless  expressly  established  by  statute.  In  Indiana, 
Maryland,  Ohio,  Pennsylvania,  Rhode  Island  and  New  York, 
statutes  provide  that  ancestral  property  descends  to  kindred 
of  the  blood  of  the  ancestral  purchaser  in  preference  to  other 
kindred,  but  the  latter  inherit,  if  there  be  no  heirs  of  the  an- 
cestral purchaser's  blood.^* 

§  479.  Kindred  of  the  whole  and  half  blood. —  At  common 
law  the  inheritance  could  only  vest  in  kindred  of  the  whole 
blood,  I,  e.,  persons  descended  not  merely  from  a  common  an- 
cestor, but  from  a  common  couple  of  ancestors.  Kindred  of 
the  half  blood  could  not  inherit,  even  where  there  were  no 
kindred  of  the  whole  blood. ^*     Probably  in  no  State  of  the 

Smallman  v.  Powell,  18  Or.  367,  23  Pac.  Rep,  249.  Regulated  by  statute 
in  Maine,  Massachusetts,  Minnesota,  Michigan,  Mississippi,  Oregon, 
Wisconsin.     3  Washburn  on  Real  Prop.  21,  note. 

26  Walker's  Am.  Law.  354. 

27  2  Bla.  Com.  220;  3  Washburn  on  Real  Prop.  11;  Williams  on  Real 
Prop.  100,  101. 

28  3  Washburn  on  Real  Prop.  21,  note;  Kelsey  v.  Hardy,  20  N.  H. 
479;  Shepard  v.  Taylor,  15  R,  I,  204,  3  Atl.  Rep.  382.  See  Kelly  v. 
McGuire,  15  Ark.  555;  Hyatt  V.  Pugsley,  33  Barb.  373;  Pease  v.  Stone, 
77  Tex,  551,  14  S.  W.  Rep.  161;  Powers  V.  Dougherty,  83  Ky.  187. 

29  2  Bla.  Com.  227.  The  only  exception  was  where  the  deceased  was 
not  actually  seised,  and  the  person  last  seised  was  the  common  an- 
cestor of  the  kindred  of  half  blood,  such  kindred  could  inherit,  not  as 
heir  to  the  deceased,  but  as  heir  to  the  common  ancestor,  in  conformity 

676 


CH.    XX.]  TITLE   BY   DESCENT.  §    480 

American  Union  are  kindred  of  the  half  blood  absolutely  ex- 
cluded from  inheriting.^"  In  some  States  no  distinction  is 
made  between  whole  and  half  blood,  while  in  others  the  half 
blood  are  postponed  in  the  inheritance  to  the  whole  blood 
of  equal  degree  of  relationship.^^  In  a  still  larger  number  of 
the  States  it  is  provided  by  statute  that  kindred  of  the  half 
blood  shall  not  inherit  the  ancestral  property  of  the  intes- 
tate, unless  they  are  of  the  blood  of  the  ancestral  purchaser.'^ 

§  480.  Advancement  —  Hotchpot. —  In  effecting  a  distribu- 
tion of  the  estate  among  the  heirs,  if  any  one  of  the  heirs  re- 
ceived a  part  of  the  ancestor's  estate  during  his  lifetime,  it  is 
required  that  the  same  be  considered  as  a  part  of  the  estate 
of  the  deceased,  and  be  deducted  from  the  share  such  heir 
was  entitled  to,  under  the  law  of  descent.  In  determining  the 
share  of  each,  the  property  so  advanced  is  added  to  the  rest 
of  the  estate,  and  the  division  is  then  made  by  dividing  the 
aggregate  amount  equally  among  the  heirs,  the  amount  •  ad- 
vanced being  treated  as  a  part  of  the  share  of  the  heir,  to 
whom  it  was  given.  In  the  curious  etymology  of  the  common 
law  this  doctrine  was  called  "  hotchpot.  "^^     The  doctrine  is 

with  the  common-law  rule  that  only  the  heirs  of  the  person  last  seised 
could  inherit.     2  Bla.  Com.  227. 

30  3  Washburn  on  Real  Prop.  15 ;  Chase's  Bla.  393,  n.  8. 

81  They  inherit  equally  in  Maryland,  Indiana,  North  Carolina  and 
Tennessee.  Lowe  v.  Maccubben,  1  Harr.  &  J.  550;  Moore  v.  Abernathy, 
7  Blackf.  442.  Half  blood  postponed  to  whole  blood  by  statute  in 
England,  Connecticut,  Delaware,  Pennsylvania,  South  Carolina,  New 
Jersey,  Mississippi  and  Texas.  Clark  v.  Pickering,  16  N.  H.  289; 
Hulme  V.  Montgomery,  31  Miss.  105;  3  Washburn  on  Real  Prop.  21, 
note.  In  Missouri  and  Kentucky  the  half  blood  take  only  one-half 
of  what  descends  to  the  whole  blood.  Talbot  v.  Talbot,  17  B.  Mon.  1 ; 
Petty  V.  Malier,  15  B.  Mon.  501. 

82  The  rule  prevails  in  Alabama,  Arkansas,  California,  Connecticut, 
Delaware,  Georgia,  Illinois,  Indiana,  Maine,  Massachusetts,  Maryland, 
Michigan,  Minnesota,  New  Jersey,  New  York,  Ohio,  Oregon,  Tennessee, 
Wisconsin.  3  Washburn  on  Real  Prop.  21,  note;  4  Kent's  Com.  406; 
Danner  r.  Shissler,  31  Pa.  St.  289;  Sheffield  v.  Lovering,  12  Mass.  490; 
Armington  r.  Armington,  28  Ind.  74;  Pennington  v.  Ogden,  1  N.  J.  L. 

677 


§    480  TITLE   BY    DESCENT.  [PART   HI. 

now  more  commonly  understood  under  the  term  advance- 
ment. In  order,  however,  that  the  doctrine  may  apply,  it 
must  be  established  by  competent  evidence,  and  in  some  of  the 
States  certain  modes  of  proof  are  prescribed  and  rendered 
necessary  by  statute,  that  the  gift  inter  vivos  was  intended 
to  be  treated  as  an  advancement.^*  A  simple  gift,  without 
proof  of  such  an  intention,  will  be  considered  an  absolute 
gift,  and  cannot  affect  the  donee's  right  to  an  equal  share  in 
the  deceased's  estate.^*  But  in  no  case  can  the  donee  be  com- 
pelled to  bring  in  his  advancement  for  a  redistribution.  If, 
therefore,  his  advancement  is  of  greater  value  than  his  share 
in  the  estate  would  be,  he  may  refuse  to  bring  it  in,  and 
thereby  renounce  his  claim  as  an  heir.^' 

192.  In  New  Jersey  they  inherit  of  each  other  oilly  the  property  derived 
from  a  common  ancestor.  Den  f.  Urison,  2  N.  J.  L.  212;  Den  v.  Jones, 
8  N.  J.  L.  340. 

S3"  It  seemeth  that  this  word  hotch-pot  is  in  English  a  pudding;  for 
in  a  pudding  is  not  commonly  put  one  thing  alone,  but  one  thing  with 
other  things  together."  Littleton,  quoted  by  Blackstone.  2  Bla.  Com. 
190.  But  in  the  early  common  law  the  doctrine  was  made  to  apply 
to  only  those  estates  which  were  given  to  a  daughter  in  frank-marriage 
—  a  species  of  estates  tail,  settled  upon  a  woman  at  her  marriage. 
Property  so  donated  raised  the  conclusive  presumption  that  it  was 
intended  as  an  advancement.  2  Bla.  Com.  191.  The  doctrine  is  now 
applied  to  all  kinds  of  advancements  where  it  has  not  been  abolished 
by  statute. 

34  See  Chadsey  v.  Chadsey,  26  111.  App.  409;  In  re  Robert's  Estate, 
111  N.  Y.  372;  Noel's  Admr.  v.  Noel's  Admr.  (Va.),  9  S.  E.  Rep.  584; 
Eitch  V.  Hawxhurst,  114  N.  Y.  512;  Re  Robert,  4  Dem.  185;  Kintz  v. 
Friday,  4  Dem.  540;  White  V.  Moore,  23  S.  C.  456;  Hill  v.  Bloom,  41 
N.  J.  Eq.  276;  Harper  v.  Harper,  92  N.  C.  300;  Wilson  v.  Kelly,  21 
S.  C.  535;  Simpson  V.  Simpson,  114  111.  603;  Long  v.  Long,  19  111.  383; 
McClintock's  Appeal,  58  Mich.  152;  Catoe  v.  Catoe  (S.  C.),.  10  S.  E. 
Rep.  1078;  Sadler  v.  HuflThines  (Ky.),  12  S.  W.  Rep.  715;  Smith  v. 
Brown,  66  Texas  543,  1  S.  W.  Rep.  573;  Long  v.  Long,  30  111.  App.  559. 
"  Advancements  made  during  the  lifetime  of  the  decedent  will  not  be 
presumed  to  be  intended  as  gifts,  without  evidence  to  that  effect." 
In  re  Robinson  (N.  Y.  Sur.  1904),  92  N.  Y.  S.  967,  45  Misc.  Rep.  551. 
But  see.  In  re  Ogden's  Est.,  211  Pa.  247,  60  Atl.  Rep.  785;  Brennoman 
a.  Scheel,  212  111.  356,  72  N.  E.  Rep.  412. 

35  3  Washburn  on  Real  Prop.  20;  4  Kent's  Com.  418,  419;  Clark  v. 

678 


CH.    XX.]  TITLE  BY   DESCENT.  §   482 

A  gift  by  a  father  to  his  daughter's  husband  will  be 
treated  as  an  advancement  to  her,  if  such  was  the  father's 
intention.^^ 

§  481.  Posthumous  children. —  The  common  law  did  not 
treat  children  en  ventre  sa  mere  as  persons  in  esse  for  the  pur- 
pose of  holding  or  acquiring  property.  This  capacity  only  at- 
tached upon  their  birth  alive.  Consequently,  by  the  old  com- 
mon law,  children  born  after  the  death  of  the  ancestor  were 
precluded  from  participating  with  the  others  in  the  distri- 
bution of  the  intestate's  estate.  But  this  harsh  rule  has  now 
been  generally  changed  by  statute,  and  posthumous  children 
in  the  United  States  inherit  equally  with  those  born  during  the 
life  of  the  ancestor.^^ 

§  482.  Illeg^itimate  children. —  It  is  also  a  common-law  rule 
that  illegitimate  children  have  no  inheritable  blood,  and  can 
neither  inherit  nor  have  heirs,  except  lineal  descendants  in 
the  descending  series.  Bastards,  therefore,  could  have  neither 
collateral  nor  lineal  heirs  in  the  ascending  line.^*     And  the 

Fox,  9  Dana  193;  Elliot's  Estate  v.  Wilson,  27  Mo.  App.  218  (Mo.),  11 
S.  W.  Rep.  739.'  The  doctrine  is  expressly  recognized  and  regulated  by 
statute  in  Maine,  Massachusetts,  Vermont,  California,  Oregon,  Wis- 
consin, Michigan,  Minnesota,  New  Hampshire,  New  York,  Alabama, 
Arkansas,  Dakota,  Ohio,  Rhode  Island,  Connecticut,  New  Jersey,  Penn- 
sylvania, Virginia,  North  Carolina,  Georgia,  Mississippi,  Texas,  Florida, 
Illinois,  Kansas,  Kentucky,  Missouri,  Indiana,  Tennessee  and  Mary- 
land. 3  Washburn  on  Real  Prop.  40,  note. 
88  Bruce  f .  Slemp,  82  Va.  352. 

8T4  Kent's  Com.  412;  Harper  v.  Archer,  4  Smed.  &  M,  99;  Den  V. 
Flora,  8  Ired.  374;  Cox  v.  Matthews,  17  Ind.  367;  Haskins  t".  Spiller, 
1  Dana  170;  Harper  v.  Archer,  12  Miss.  99.  Statutes  modifying  the 
common-law  rule  exist  in  most  of  the  States  in  the  Union.  3  Wash- 
burn on  Real  Prop.  44,  note.  In  Alabama,  Arkansas,  Missouri,  and 
Texas  the  doctrine  applies  only  to  the  posthumous  children  of  the  intes- 
tate. Ala.  Code  (1867),  Sec.  1893;  Ark.  Dig.  Stat.  (1858),  Ch.  50, 
Sec.  2;  Mo.  Gen.  Stat.  (1866),  p.  518,  Ch.  129,  Sec.  2. 

88  2  Bla.  Com.  247,  248,  249;  2  Kent's  Com.  212;  Cooley  v.  Dewey,  4 
Pick.  93;  Barwick  v.  Miller.  4  Desau.  434;  Stover  v.  Boswell,  3  Dana 
233;  Bent  v.  St.  Vrain,  30  Mo.  268. 

679 


I    -132  TITLE   BY    DESCENT.  \. ':...:   :.!. 

agreement  of  the  putative  father  with  the  mother  that  their 
bastard  child  shall  participate  in  the  inheritance  does  not 
give  the  child  any  claim  against  the  estate  in  the  absence  of 
statutory  provision,*"  But  by  statute,  in  a  large  number  of 
the  American  States,  an  illegitimate  child  is  now  permitted 
to  inherit  from  the  mother,  and  its  maternal  ancestors,  and 
the  mother,  and  in  some  States,  its  brothers  and  sisters,  from 
the  child.  But  it  would  seem  likely  that  the  illegitimate  child 
could  only  inherit  from  the  mother,  where  there  are  no  legit- 
imate children.*"  But  a  number  of  the  States  have  adopted 
the  rule  of  the  civil  law,  that  the  subsequent  marriage  of  the 
parents  of  a  child  born  out  of  wedlock  legitimizes  such  off- 
spring for  all  purposes,  and  enables  it  to  inherit  equally  with 
the  children  born  after  the  marriage.  However,  the  statutes 
generally  require  the  putative  father  to  acknowledge  such  a 
child,  in  order  that  the  subsequent  marriage  may  produce  le- 
gitimation.*^ 

30  Willoughby  v.  Motley,  83  Ky.  297. 

40  See  Coe  v.  Bates,  6  Blackf.  533;  Ellis  v.  Hatfield,  20  Ind.  101; 
Stover  V.  Boswell,  3  Dana  233.  Statutes  to  this  general  effect  are  to  be 
found  in  Massachusetts,  Indiana,  Mississippi,  Texas,  Vermont,  Alabama, 
New  Hampshire,  Illinois,  Rhode  Island,  Pennsylvania,  Virginia,  Ken- 
tucky, Florida,  Arkansas,  Iowa,  Missouri,  New  York,  Maryland,  Kansas, 
Ohio  and  Georgia.  Williams  on  Real  Prop.  126  n,  2;  3  Washburn  on 
Real  Prop.  41,  note;  Brown  v.  Dye,  2  Root  280.  In  New  Hampshire,  by 
express  statutory  provision,  illegitimate  children  inherit  equally  with 
legitimate  children;  while  in  New  York,  they  are  expressly  precluded 
from  inheriting  if  there  be  legitimate  issue.  Gen.  Stat.  N.  H.  (1867), 
Ch.  184,  Sees.  4,  5;  N.  Y.  Laws  of  18.55,  Ch.  547;  1  R.  S.  7.54.  Sec.  19. 
Under  the  Mississippi  statute  they  inherit  equally.  Alexander  v.  Alex- 
ander, 31  Ala.  241.  But  wherever  the  statute  does  not  expressly,  or 
by  necessary  implication,  remove  the  common-law  incapacity,  the  com- 
mon law  still  prevails.  A  statute  making  an  illegitimate  child  heir  to 
its  mother  does  not  enable  it  to  inherit  from  its  brothers,  or  transmit  its 
own  estate  by  descent  to  its  mother.  Stephenson's  Heirs  v.  Sullivan, 
5  Wheat.  260 ;  Little  et  al.  v.  Lake,  8  Ohio  290 ;  Remington  r.  Lewis, 
8  B.  Mon.  606.  See,  as  to  administrator's  duty  in  final  settlements, 
to  have  citation  for  illegitimate  children.  In  re  Losee's  Est.,  94  N.  Y. 
S.  1182,   (1905)  46  Misc.  Rep.  363. 

*i  Such  statutes  have  been  enacted  in  Massachusetts,  Vermont,  Mary- 
680 


CH.    XX.]  TITLE  BY   DESCENT.  §    483 

§  483.  Alienage,  a  bar  to  inheritance. —  Since  an  alien  at 
common  law  was  not  permitted  to  hold  lands,  and  such  lands, 
which  he  did  acquire,  became  escheated  to  the  State  after 
"office  found,"  it  was  held  to  be  impossible  for  him  to  inherit 
from  another,  as  the  law  would  not  cast  upon  him  the  title 
to  lands  which  he  could  not  hold.*^  Nor  did  he  have  suffi- 
cient inheritable  blood  to  transmit  the  inheritance  to  collat- 
eral heirs,  who  were  citizens.  Thus,  brothers  could  not  inherit 
from  each  other  if  their  parents  were  aliens."  But  now  by 
statute,  they  inherit  from  each  other,  although  they  claim  re- 
lationship through  some  person  who  is  an  alien.^*  And  where 
an  alien  is  specially  authorized  by  statute  to  hold  and  take 
lands  by  descent,  it  seems  that  only  those  relations  can  inherit 
from  him,  who  are  citizens.  At  least  if  there  are  such  heirs, 
and  others  who  are  aliens,  the  former  will  inherit  to  the  ex- 
clusion of  the  latter.***    But  in  a  number  of  the  States  statutes 

land,  Virginia,  Kentucky,  Mississippi,  Texas,  Oregon,  Iowa,  Indiana, 
Arkansas,  Ohio,  Missouri,  Illinois,  New  Hampshire  Nebraska.  Jackson 
V.  Moore,  8  Dana  170;  3  Washburn  on  Real  Prop.  41,  note.  In  Ne- 
braska and  California,  the  acknowledgment  of  the  child  by  the  father 
must /be  in  writing.  Rev.  Stat.  Neb.  (18G6),  p.  62;  Pina  v.  Peck,  31 
Cal.  359.  And  in  Missouri  the  statute  prdvides  that  the  oflFspring  of 
marriages,  which  have  been  declared  null  and  void,  shall  be  legitimate. 
Gen.  Stat.  Mo.  (1865),  p.  519,  Ch.  128,  Sec.  11. 

*2  1  Bla.  Com.  372;  2  Id.  249. 

«2  Bla.  Com.  250. 

**  2  Bla.  Com.  251;  Chase  Bla.  Com.  395,  n.  9.  Such  is  the  statutory 
rule  in  Virginia,  Kentucky,  Florida,  Arkansas,  Texas,  New  York,  Mis- 
souri and  Massachusetts.  3  Washburn  on  Real  Prop.  44,  note.  See  next 
note.  For  New  York  statute  abolishing  disability  of  aliens  to  inherit 
land,  followed  in  many  States,  see  Laws  1893,  p.  365,  Ch.  207,  construed 
in  Haley  v.  Sheridan  (1905),  94  N.  Y.  S.  864.  For  right  of  alien  wife 
to  inherit  land  of  resident  husband,  see  Brown  v.  Jacobs,  2  Mo.  32. 

45  Parish  v.  Ward,  28  Barb.  328 ;  McGregor  t".  Comstock,  3  N.  Y.  408. 
In  New  York  it  is  provided  by  statute  that  the  alienage  of  an  ancestor 
does  not  prevent  a  person  from  inheriting  from  another,  of  whom  the 
alien  is  a  common  ancestor.  1  Rev.  Stat.  (N.  Y.)  754,  Sec.  22.  But  it 
has  been  held  by  the  New  York  courts  that  this  statute  does  not  enable 
one  to  take  by  descent  through  the  alien,  if  the  latter  would  have  been 
heir  but  for  the  fact  that  he  was  not  a  citizen.     People  v.  Irvin,  21 

681 


§   483  TITLE  BY  DESCENT.  [PART  III. 

have  been  passed  removing  altogether  the  disability  of  alien- 
age.** 

Wend.  128;  McLean  v.  Swanton,  13  N.  Y.  535.    See  Jackson  r.  Jackson, 
6  Johns.  214;  Orser  v.  Hoag,  3  Hill  79. 

<«  Williams  on  Real  Prop.  65,  n.  1;  Chase  Bla.  Com.  119,  n.  2;  Haley 
r.  Sheridan  (N.  Y.  1905),  94  N.  Y.  S.  864. 
682 


CHAPTER  XXI. 

TITLE  BY  ORIGINAL  ACQUISITION. 

Section    I.  Title  by  occupancy. 
II.  Title  by  accretion. 

III.  Title  by  adverse  possession. 

IV.  Statute  of  Limitations. 
V.  Estoppel. 

VI.  Abandonment. 

SECTION  I. 

TITLE   BY   OCCUPANCY. 

Section  484.  Definition. 

485.  Condition  of  public  lands  in  the  United  States. 

486.  Estates  per  outer  vie. 

§  484.  Definition. —  Occupancy,  in  the  technical  significa- 
tion of  the  term,  is  the  act  of  taking  possession  of  land  which 
before  was  the  common  property  of  the  people  or  community.^ 
Under  the  theory  that  in  the  prehistoric  age  lands  were  origi- 
nally common  property,  this  must  have  been  the  original 
mode  of  acquiring  therein  a  right  of  private  property. 

§  485.  Condition  of  pnblic  lands  in  the  United  States. —  Ac- 
cording to  the  common  law  of  England  and  of  this  country, 
there  is  no  common  property  in  lands.  Here  lands  which  are 
not  the  property  of  private  persons  are  held  to  be  the  prop- 
erty of  the  State  or  the  United  States,  according  to  the  cir- 
cumstances. England  claimed  by  the  right  of  discovery  the 
title  to  the  soil,  denying  any  claim  thereto  of  the  aborigines,  on 

12  Bla.  Com.  257. 

683 


§    485  TITLE  BY   OCCUPANCY.  [PART   III. 

the  ground  that  their  nomadic  life  prevented  them  from  ac- 
quiring more  than  a  temporary  right  of  occupation,  some- 
thing in  the  nature  of  revocable  or  defeasible  licenses  or 
tenancies  at  will.^  This  right  was  in  turn  granted  by  letters 
patent  to  the  various  colonies,  which  were  established  under 
the  British  government,  and  the  unappropriated  lands 
within  their  boundaries  became  the  property  of  the  respec- 
tive colonial  governments.^  But  all  lands  lying  outside  of 
the  colonies  remained  the  property  of  Great  Britan,  including 
both  the  lands  acquired  under  the  claim  of  discovery  and 
those  purchased  from  other  civilized  nations.*  And,  upon 
the  successful  issue  of  the  American  revolution,  these  lands 
became  the  property  of  the  Uni(ted  States,  Subsequently 
a  number  of  the  States,  which  claimed  title  to  extensive 
tracts  of  lands  in  the  then  unexplored  West,  under  their 
charters  from  the  crown,  ceded  them  to  the  United  States 
for  the  benefit  of  the  Union.  There  have  also  been  purchases 
by  the  United  States  from  other  nations,  notably  Louisiana, 
Florida,  and  the  large  tracts  of  territory  ceded  by  Mexico, 
to  the  unappropriated  lands  of  which  the  same  theory  of 
property  in  the  government  has  been  applied.^  There  are, 
therefore,  in  this  country  no  lands  without  an  owner;  and 
the  so-called  public  lands  being  the  property  of  the  States  or 
the  United  States,  the  legal  title  to  them  can  only  be  ac- 
quired by  grant  from  the  government.® 

23  Washburn  on  Real  Prop.  164;  1  Story  on  Const.  3;  Johnson  f.  Mc- 
intosh, 8  Wheat.  543 ;  Martin  v.  Waddell,  16  Pet.  367. 

3  1  Curtis  on  Const.  425;  Jackson  V.  Hart,  12  Johns.  81;  Worcester 
V.  Georgia,  6  Pet.  544;  Commonwealth  v.  Roxbury,  9  Gray  478. 

*  Johnson  v.  Mcintosh,  8  Wheat.  543 ;  Worcester  v.  Georgia,  6  Pet. 
548. 

53  Washburn  on  Real  Prop.  165,  166;  1  Story  on  Const.  215;  1 
Kent's  Com.  259 ;  Terrett  V.  Taylor,  9  Cranch  50. 

8  Under  the  laws  of  Congress,  however,  the  actual  settler  upon  public 
lands  acquires  by  such  act  of  occupation  an  equitable  title  in  the  nature 
of  a  right  to  the  legal  title,  upon  payment  of  the  minimum  price  fixed 
by  law.  This  right  is  called  pre-emption,  and  further  reference  will  be 
made  to  it  in  treating  of  title  by  public  grant  or  patent.  See  post, 
684 


CH.    XXI.]  TITLE   BY   OCCUPANCY.  §    486 

§  486.  Estates  per  auter  vie. —  It  will  be  remembered,  in 
treating  of  these  estates,  it  was  stated  that  upon  the  death 
of  the  tenant,  per  auter  vie,  during  the  life  of  the  cestui  que 
vie,  the  common  law  gave  the  estate  to  the.first  occupant  in 
the  case  of  an  ordinary  estate  per  auter  vie,  and  he  was 
called  the  general  occupant.  But  where  the  estate  was  lim- 
ited to  the  tenant  and  his  heirs  during  the  life  of  another, 
his  heirs  took  the  estate  by  so-called  special  occupancy  to 
the  exclusion  of  the  general  occupant.^  But  this  common- 
law  doctrine  has  now  been  abolished  by  statute  in  England, 
and  in  most,  of  not  all,  of  the  United  States.  The  estate  is 
either  given  the  quality  of  an  estate  of  inheritance,  and  de- 
scends to  the  heirs  of  the  tenant  per  auter  vie,  or  is  made  a 
chattel  real,  and  vests  in  his  personal  representatives.^ 

Sec.  522.  For  right  of  discoverer  of  mineral  upon  the  public  land  in 
the  United  States  to  the  occupation  and  acquisition  of  the  land  under 
the  Acts  of  Congress,  see,  White,  Mines  &  Mining  Rem.,  Chap.  III. 

7  See  ante,  Sec.  47 ;  2  Bla.  Com.  258,  259,  260. 

8  3  Washburn  on  Real  Prop.  50,  51;  Chase  Bla.  Com.  414,  n.  1.  See 
ante.  Sec.  47. 

685 


SECTION  II. 

TITLE  BY   ACCRETION. 

Section  487.  Definition. 

488.  Alluvion. 

489.  Filum  Aquee. 

§  487.  Definition. —  It  is  a  rule  in  the  law  of  real  property 
that  whenever  other  species  of  property  become  attached 
to  the  land  already  in  one's  possession,  it  becomes  a  part 
of  the  land  and  the  property  of  its  owner,  and  the  title 
thereto  is  generally  acquired  by  the  very  act  of  attachment. 
Quidquid  plantatur  solo,  solo  cedit.  It  has  been  shown  that 
this  rule  applies  to  houses  and  other  structures  erected  upon 
the  land  by  strangers  without  the  consent  of  the  owner  of 
the  land.*  But  at  present  we  are  only  concerned  with  the 
doctrine  so  far  as  it  applies  to  the  additions  of  foreign  soil 
through  the  co-operation  of  natural  causes,  which  are  known 
under  the  term  alluvion.  The  mode  of  acquiring  a  right  of 
property  in  such  cases  is  called  title  by  accretion.  It  is  more 
properly  an  incident  to  real  property  than  a  mode  of  acqui- 
sition of  lands.  But  inasmuch  as  new  property  is  thus 
acquired,  the  means  or  manner  of  acquisition  may  fitly  be 
called  a  title.^" 

9  See  ante,  Sec.  2.    "  Land  formed  by  gradual  and  imperceptible  accre- 
•tion,  or  by  gradual  receding  of  the  water,  belongs  to  the  owner  of  the 
contiguous  land  to  which  the  addition  is  made."     Nix  v.  Pfeifer    (Ark. 
1904),  83  S.  W.  Rep.  951. 

103  Washburn  on  Real  Prop.  55,  59;  Banks  v.  Ogden,  2  Wall.  69; 
Saulet  V.  Shepherd,  4  Wall.  505;  Municipality  v.  Orleans  Cotton  Press, 
18  La.  122.  "  Persons  seeking  to  establish  title  by  accretion  or  reliction 
to  land  in  the  possession  of  another  have  the  burden  of  showing  the 
accretion  or  reliction  by  which  they  claim  title."  Wright  V.  City  of 
Council  Bluffs  (Iowa  1905),  104  N.  W.  Rep.  492. 
.     686 


CH.    XXI.]  TITLE  BY   ACCRETION.  §   488 

§  488.  Alluvion. — This  is  the  soil  and  various  other  things, 
such  as  marine  and  water  plants,  sea-weeds,  etc.,  which 
are  washed  up  on  the  shore  of  a  stream  by  the  action  of 
the  water.  It  is  a  notable  and  common  fact  that  the  current 
of  a  stream  is  constantly  changing  by  the  washing  away  of 
the  soil  on  one  side  of  the  stream  and  the  transportation  of 
the  particles  to  the  other  side,  or  by  their  deposit  on  the 
same  side  below.  All  such  accretions  become  a  part  of  the 
land  on  which  they  are  cast,  and  the  property  of  the  owner 
of  the  soil."  The  accretions,  however,  become  subject  to 
all  the  incumbrances  which  have  been  imposed  upon  the 
original  land.^*  But  the  title  to  such  accretions  does  not 
rest  upon  the  mere  fact  of  attachment  to  the  soil,  although 
such  attachment  is  a  necessary  element.  It  rests  rather 
upon  the  fact  that  the  former  owner  is  unable  to  identify 
his  property.  Alluvion  is  the  gradual  formation  of  soil  by 
the  deposit  of  particles  and  atoms  of  soil,  which,  from  the 
very  nature  of  the  case,  the  former  owner  cannot  identify 
in  the  new  shape  which  they  have  assumed.  But  if  by 
some  sudden  avulsion  a  distinct  and  tangible  part  of  the  soil 
of  one  man's  land  is  detached  and  deposited  upon  another's 
premises,  the  latter  acquires  no  title  thereto  by  the  mere 
act  of  deposit.  Thei  former  owner  can  still  identify  it, 
and  prove  his  property.  But  if  he  should  permit  such  soil 
to  remain  upon  the  land  sufficiently  long  to  become  perma- 
nently attached,  his  right  of  property  will  be  lost  because  its 
removal  after  such  delay  would  probably  injure  the  land.^^ 

"3  Washburn  on  Real  Prop.  55;  Emans  v.  Turnbull,  2  Johns.  322; 
Steers  v.  Brooklyn,  101  N.  Y.  51;  Buras  v.  O'Brien  (La.),  7  So.  Rep. 
632;  East  Omaha  Land  Co.  v.  Jeffries,  40  Fed.  Rep.  386;  s.  c.  134  U. 
S.  178;  Prior  r.  Comstock  (R.  I.),  19  Atl.  Rep.  1079.  "  Title  is  acquired 
by  accretion  only  when  the  accretion  is  caused  by  a  gradual  and  natural 
deposit  of  soil."    In  re  Driveway  in  City  of  New  York,  93  N.  Y.  S.  1107. 

12  Campbell  v.  Laclede  Gas  Light  Co.,  84  Mo,  352. 

18  3  Washburn  on  Real  Prop,  59;  Ang.  Wat.  Cour.,  Sec.  60;  Inst. 
L.  II,  Tit.  1,  Sec.  21;  Hawkins  v.  Barney,  5  Pet.  467;.  Dikes  v.  Miller, 
24  Tex.  424;  Trustees,  etc.,  V.  Dickinson,  9  Cush.  544;  Halsey  V.  Mc- 
Cormick,  18  N.  Y.  147.    "  W'here  a  river  flowing  over  government  land 

687 


§    489  TITLE   BY   ACCRETION.  [PART.    III. 

So,  also,  will  a  tract  of  land  which  has  been  submerged  on 
the  sea-shore  be  reclaimable,  if  by  the  gradual  operation  of 
the  water,  the  land  should  be  brought  above  the  surface 
again.  The  proprietorship  of  the  original  owner  is  restored, 
if  the  boundaries  of  the  submerged  land  can  be  re-estab- 
lished." 

§  489.  Filum  aqua. —  Where  two  tracts  of  land  are  divided 
by  a  navigable  stream,  the  general  rule  is  that  the  boundary 
line  is  the  low  water  mark  on  the  adjoining  shore,  and  the 
soil  or  bed  of  the  stream  is  the  property  of  the  State.^'  But 
if  the  stream  is  not  navigable,  the  boundary  line  is  the  cen- 
ter of  the  current  of  the  stream,  commonly  called  the  filum 
aquce,  and  the  owners  of  the  shore  have  a  right  of  property 
in  the  bed  of  the  stream  up  to  this  filum  aqucB.'^^  If,  there- 
forcj  an  island  rises  in  the  current  of  a  non-navigable  stream, 
under  the  doctrine  of  accretion,  it  would  become  the  prop- 
erty of  him  on  whose  soil  it  is  formed.  If  the  island  is  formed 
in  the  middle  of  the  stream,  the  proprietors  of  the  opposite 
shores  would  acquire  a  title  in  severalty  to  that  part  of 
the  island  which  lies  on  their  respective  sides  of  the  filum 
aqucE}''  And  if  the  stream  disappear  in  consequence  of 
gradual  accretions,  the  boundary  line  will  be  the  line  of 
contact  at  which  the  stream  finally  disappears.^®  Where  the 
title  to  the  bed  of  the  stream  is  in  one  person,  and  the 
shore   belongs   to   another,   the   boundary   line   is   low-water 

changes  its  course,  the  abandoned  bed  becomes  part  of  the  surrounding 
land,  and  passes  by  the  subsequent  patent  to  the  patentee."  Boglino  V. 
Giorgetta    (Colo.  App.  1904),  78  Pac.  Rep.  612. 

14  Mulry  V.  Norton,  100  N.  Y.  424. 

15  See  post.  Sec.  599.  for  definition  of  a  navigable  stream. 

16  3  Washburn  on  Keal  Prop.  55,  56.  For  a  more  extended  discussion 
of  this  entire  subject,  see  post.  Sees.  597,  599. 

IT  3  Kent's  Cora.  428;  3  Washburn  on  Real  Prop.  56,  57,  58;  Walk. 
Am.  Law.  329;  Chase's  Bla.  Com.  416  n;  Halsey  v.  McCormick,  18  N. 
Y.  147;  Primm  t\  Walker,  38  Mo.  99;  King  v.  Yarborough.  3  B.  &  C. 
91.     See  also,  Webber  v.  Axtell   (Minn.  1905),  102  N.  W.  Rep.  915. 

18  Buse  V.  Russell,  86  Mo.  209. 
688 


CH.    XXI.]  TITLE   BY   ACCRETION.  §    489 

mark;  the  alluvion  formed  on  the  shore  belongs  to  the  owner 
of  the  shore,  but  the  alluvion  formed  in  the  stream  belongs 
to  the  owner  of  the  bed."  But  if  the  stream  is  navigable, 
since  the  right  of  property  in  the  bed  of  the  stream  is  vested 
in  the  State,  an  island  formed  in  the  current  of  the  stream 
belongs  to  the  State,  and  the  owners  of  the  shore  are  only 
entitled  to  whatever  allu\^ion  is  deposited  on  their  shore 
above  low-water  mark.^"  So  also  if,  by  some  sudden  change 
in  the  current  of  the  navigable  river,  what  was  once  the 
bed  is  left  uncovered,  the  property  in  the  soil  remains 
in  the  State.  The  owner  of  the  shore  does  not  acquire  the 
title  thereto,  as  he  does  to  gradual  and  ordinary  accretions, 
resulting  from  usual  and  natural  changes  in  the  current. ^^ 

19  Linthicum  v.  Coan,  64  Md.  439.  "  Where  a  deed  described  the  land 
conveyed  as  a  certain  number  of  acres  off  from  one  side  of  a  govern- 
ment subdivision,  the  purchaser  was  not  entitled  to  accretions  lying  be- 
tween the  land  described  and  the  river."  Perry  v.  Sadler  (Ark.  1905), 
88  S.  W.  Rep.  832.  The  doctrine  of  the  text  is  followed  in  some  recent 
Missouri  cases,  where  the  grantee  of  land  from  the  United  States,  on 
the  bank  of  a  navigable  stream,  was  held  to  take  title  only  to  low 
water  mark,  and  not  to  the  middle  of  the  stream.  The  riparian  owner 
was  held,  by  reason  of  such  ownership,  not  to  be  entitled  to  an  island, 
which  sprang  up  in  the  midst  of  the  river  and  where,  by  accretions  to 
the  island,  its  water  margin  had  united  with  the  main  shore,  the  newly 
made  land  was  held  to  become,  a  part  of  the  island  and  not  of  the 
main  land  and  the  riparian  ownership  was  not  extended  by  such  accre- 
tions. McBain  v.  Johnson,  155  Mo.  191,  55  S.  W.  Rep.  1031;  Moore 
V.  Farmer,  156  Mo.  33,  56  S.  W.  Rep.  493. 

203  Washburn  on  Real  Prop.  58;  Chase's  Bla.  Com.  416  n;  Attorney- 
General  V.  Chambers,  4  De  G.  M,  &  G.  206-218;  Scratton  v.  Brown,  4  B. 
&  C.  495;  King  v.  Yarborough,  1  Gow.  &  C.  178;  s.  c.  3  B.  &  C.  91. 
But  see,  Webber  v.  Axtell   (Minn.  1905),  102  N.  W.  Rep.  915. 

2iEmans  V.  TumbuU,  2  Johns.  322;  Halsey  v.  McCormick,  18  N.  Y. 
147.  See  Trustees,  etc.,  v.  Dickinson,  9  Cush.  544.  But  see,  for  con- 
trary holding  in  Colorado,  as  to  abandoned  bed  of  river,  Boglino  v. 
Giorgetti,  78  Pac.  Rep.  612.  For  title  by  accretion,  from  reservation  in 
deed  of  future  accretions,  see,  Minor's  Heirs  V.  New  Orleans  (La.  1905), 
38  So-  Rep.  999. 

44  689 


SECTION  III. 

TITLE  BY  ADVERSE  POSSESSION. 

Section  490.  Effect  of  naked  possession. 

491.  Seisin  and  disseisin. 

492.  Disseisin  and  dispossession   distinguished. 

493.  Actual  and  constructive  possession. 

494.  Actual  or  constructive  possession  —  Continued. 

495.  What  acts  constitute  actual  possession  —  Visible  or  noto- 

rious. 

496.  Possession  must  be  distinct  and  exclusive. 

497.  Possession  —  Hostile  and  adverse. 

498.  Adverse  possession,  when  entry  was  lawful. 

499.  Disseisor's  power  to  alien. 

500.  Betterments. 

501.  Title  by  adverse  possession  —  How  defeated. 

502.  Title  by  adverse  possession  —  How  made  absolute. 

§  490.  Effect  of  naked  possession. —  It  is  an  undisputed  rule 
of  law  that  naked  possession,  i.  e.,  possession  without  even 
a  claim  of  title,  vests  a  sufficient  right  of  property  in  the 
person  who  has  such  possession,  as  to  permit  him  to  hold 
the  land  against  all  the  world  except  the  true  owner.^^  But 
he  does  not  in  strict  technical  language,  by  the  mere  fact 
of  possession,  acquire  a  title  to  the  land,  and  certainly  not 
against  the  true  owner.  Such  possession  may  be  as  licensee, 
bailee  or  tenant  of  the  real  owner,  or  in  some  other  way 
subordinate  to  the  latter;  and  under  such  circumstances  his 
possession  is  the  possession  of  the  owner.  In  order  that 
his  possession  may  vest  in  him  a  title  to  the  land,  it  must 
be  adverse  to,  and  independent  of,  the  real  owner.  What  is 
adverse  possession  will  appear  in  the  following  paragraphs. 

22  3  Washburn  on  Real  Prop.  114;  2  Sharsw.  Bla.  Com.  196  n.   "There 
is  no  presumption  that  the  possession  of  real  estate  is  adverse."    Monk 
V,  City  of  Wilmington  (N.  C.  1904),  49  S.  E.  Rep.  345. 
690 


CH.'  XXI.]  TITLE   BY   ADVERSE   POSSESSION,  §-491 

§  491.  Seisin  and  disseisin. —  Seisin,  as  has  been  explained 
in  a  preceding  chapter,-^  is  that  possession  which  accom- 
panies, and  which  is  an  incident  of,  freehold  estates.  Seisin 
is  of  two  kinds,  seisin  in  fact,  which  is  equivalent  to  actual 
possession,  and  seisin  in  law  or  deed,  being  that  seisin  or 
right  to  seisin,  which  one  acquires  by  the  delivery  and  accept- 
ance of  a  deed,  or  which  is  retained  by  the  owner,  when 
he  parts  with  his  possession  to  the  tenant  of  a  leasehold  or 
other  subordinate  estate,  or  in  any  other  case  where  he  has 
not  the  actual  possession.^*  In  this  connection  we  are  not 
concerned  with  the  distinctions  between  freehold  and  lease- 
hold estates  in  respect  to  the  appropriate  use  of  the  term 
seisin.  On  the  contrary,  in  respect  to  the  matter  under  con- 
sideration, the  terms  seisin  and  possession  may  be  treated 
as  synonymous,  meaning  that  possession  which  accompanies,, 
and  is  held  under,  a  claim  of  title.^'  There  cannot,  however, 
be  more  than  one  seisin,  and  where,  therefore,  two  persons 
are  in  possession,  he  has  the  seisin  who  can  show  a  good 
title.-'  "When  one  is  in  possession  of  the  land,  and  his  pos- 
session is  subordinate  to  the  claims  of  the  real  owner,  although 
the  latter  has  not  the  seisin  in  fact,  he  still  has  the  seisin  in 
law,  for  the  possession  of  the  former  is  subordinate  and 
supports  the  seisin  in  law.  The  tenant  is  for  that  purpose 
a  quasi-hailee  of  the  owner.^^  But,  if  the  one  in  possession 
holds  the  land  in  opposition  to  the  claims  of  the  owner,  and 
under  the  assertion  of  a  superior  title,  then  the  real  owner 
is  deprived  of  his  seisin ;  for  the  seisin  in  law  can  only 
exist,  apart  from  the  seisin  in  fact,  when  the  actual  posses- 

28  gee  ante,  See.  24. 

24  Co.  Lit.  153;  2  Prest.  Abst.  282;  Ruffin  v.  Ovcrby,  105  N.  C.  78. 
See  ante,  Sec.  25. 

25  3  Washburn  on  Real  Prop.   117;   Slater  v.  Rawson,  6  Mete.  439; 
Smith  V.  Burtis,  6  Johns.  216. 

26  2  Prest.  Abst.  286,  290;  4  Kent's  Com.  482;  Barr  v.  Gratz,  4  Wheat. 
213;  Smith  v.  Burtis,  6  Johns.  216;  Whittington  v.  Wright,  9  Ga.  23. 

27  Blair    r.   Johnson    (III.    1905),   215   111.   552,    74   N.    E.    Rep.   747; 
Olsen  r.  Burk  (Minn.  1905),  103  N.  W.  Rep.  335. 

691 


§    491  TITLE   BY   ADVERSE   POSSESSION.  [PART     III, 

sion  is  held  by  another,  subject  to  the  superior  claims  of  the 
owner.  The  real  owner  is  then  said  to  be  disseised;  the 
act  which  deprives  him  of  the  seisin  is  a  disseisin,  and  the 
actor  is  a  disseisor.  Disseisin  vests  in  the  disseisor  a  tiMe 
to  the  land,  and  leaves  in  the  disseisee  only  a  right  of  entry, 
which  is  practically  but  a  chose  in  action.  Disseisin  is 
synonymous  with  adverse  possession.^®  So  completely  does 
disseisin  divest  the  owner  of  Lis  estate,  that  at  common  law 
he  had  nothing  which  he  could  convey ;  nor  could  he  main- 
tain an  action  for  trespass  upon  the  land,  or  for  other  injuries 
thereto.  The  disseisor  could  alone  maintain  such  actions. 
Says  Mr.  Preston:  "Disseisin  is  the  privation  of  seisin.  It 
takes  the  seisin  or  estate  from  one  man  and  places  it  in 
another.  It  is  an  ouster  of  the  rightful  owner  of  his  seisin. 
,It  is  the  commencement  of  a  new  title,  producing  that  change 
by  which  the  estate  is  taken  from  the  rightful  owner  and  is 
placed  in  the  wrong,doer.  Immediately  after  a  disseisin,  the 
person,  by  whom  the  disseisin  is  committed,  has  the  seisin 
or  estate,  and  the  person  on  whom  the  injury  is  committed 
has  merely  the  right  or  title  of  entry. ' '  Again :  "  As  soon 
as  a  disseisin  is  committed,  the  titie  consists  of  two  divisions ; 
first,  the  title  under  the  estate  or  seisin,  and,  secondly,  the 
title  under  the  former  ownership."^®  And  since  the  dis- 
seisor claims  the  land  independent  of  all  others,  his  estate 
cannot  be  less  than  an  absolute  and  unqualified  fee.^° 

28 "  Disseisin  and  ouster  mean  very  much  the  same  thing  as  adverse 
possession,"  say  the  court  in  Magee  v.  Magee,  37  Miss.  151.  Holley  v. 
Hawley,  39  Vt.  531;  Ang.  on  Lim.  410;  Com.  Dig.  Seisin,  A.  1,  A.  2. 

20  2  Prest.  Abst.  284.  See  also,  3  Washburn  on  Real  Prop.  292-295; 
Rawle  Cov.  (3  ed.)  23,  24;  2  Smith  Ld.  Cas.  529,  530,  531.  "Adverse 
possession  is  a  possession  in  opposition  to  the  true  title  and  real  owner, 
and  implies  that  it  commenced  in  wrong  (by  ouster  or  disseisin),  and  is 
maintained  against  right."  Swope  v.  Ward  (Mo.  1904),  84  S.  W.  Rep. 
895. 

80  Co.  Lit.  271a;  2  Prest.  Abst.  293;  Wheeler  v.  Bates,  21  N.  H.  460; 
McCall  V.  Neely,  3  Watts  71.  Query:  If  one  enters  into  possession 
under  the  claim  of  a  long  term  of  years,  or  an  estate  for  life,  or  an 
estate  tail,  will  not  this  qualification  of  the  claim  of  title  under  which 

692 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    493 

.  §  492.  Disseisin  and  dispossession  distinguished. —  It  is  not 
every  dispossession  which  constitutes  a  disseisin.  In  the  first 
place,  a  dispossession  may  be  effected  under  a  complete 
and  lawful  title;  a  disseisin  is  always  a  wrongful  dis- 
possession, *.  e.,  it  is  never  supported  by  a  good  title.^^  Nor 
is  even  every  wrongful  dispossession  a  disseisin.  In  order 
that  a  wrongful  dispossession  may  constitute  a  disseisin,  the 
possession  thus  acquired  must  be  actual  or  constructive,  visible 
or  notorious,  distinct  and  exclusive,  hostile  or  adverse.^'-  It 
is  always  a  question  for  the  jury  whether  a  possession  has  all 
the  elements  necessary  to  make  it  a  case  of  disseisin.^^  ■ 

§  493.  Actual  or  constructive  possession. —  Possession  may 
be  actual  or  constructive.  Thus,  where  one  receives  a  deed 
of  conveyance,  by  the  very  delivery  of  the  deed,  he  is  con- 
sidered as  being  in  constructive  possession  of  the  land, 
although  he  has  not  acquired  the  actual  possession.     So,  also, 

he  enters  limit  the  estate  which  he  would  acquire  by  disseisin  or  adverse 
possession?  See,  for  character  of  disseisor's  title,  Franklin  v.  Cunning- 
ham  (Mo.  1905),  86  S.  W.  Rep.  79. 

81  Slater  v.  Rawson,  6  Mete.  439;  Smith  v.  Burtis,  6  Johns.  216.  ' 

82  4  Kent's  Cora.  488;  2  Smith  Ld.  Cas.  529,  560,  561;  Melviu  i\ 
Proprs.  of  T^cks,  etc.,  5  Mete.  15;  Smith  V.  Burtis,  5  Johns.  218;  Das- 
well  V.  De  La  Lanza,  20  How.  32;  Jackson  v.  Wheat,  18  Johns.  44; 
Flaherty  v.  McCormick,  113  111.  538;  Dothard  v.  Denson,  75  Ala.  541; 
Davis  V.  Bowmar,  55  Miss.  671;  Ringo  v.  WoodrufT,  43  Ark,  469; 
Bracken  v.  Jones,  63  Tex.  184;  Unger  v.  Mooney,  63  Cal.  586;  Hawks 
V.  Senseman,  6  S.  &  R.  (Pa.)  21;  Partch  v.  Spooner,  57  Vt.  583;  Tay- 
lor V.  Bumside,  1  Gratt.  (Va.)  165;  Creekmur  v.  Creekmur,  75  Va^ 
430;  Core  v.  Faupel,  24  W.  Va.  238;  Dietrick  v.  Noel,  42  Ohio  St.  18; 
s.  c.  51  Am.  Rep.  788.  See  Cobley  v.  Cobley  (Mo.  1905),  87  S.  W- 
Rep.  957. 

aspoignard  v.  Smith,  6  Pick.  (Mass  )  172;  Gross  v.  Welwood,  90  N". 
Y.  638;  Madison  Am.  Church  v.  Oliver  St.  Church,  73  N.  Y.  82;  Jack- 
son V.  Wheat.,  18  Johns.  (N.  Y.)  40;  Boogher  v.  Neece,  75  Mo.  384; 
Magee  v.  Magee,  37  Miss.  490;  Holliday  v.  Cronwell,  37  Tex.  437;  Mc- 
Nair  v.  Funt,  5  Mo.  300 ;  Macklot  v.  Dubreuil,  9  Mo.  473 ;  s.  c.  43  Am. 
Dec.  550.  See,  Archer  v.  Beihl,  136  Fed.  Rep.  113;  Kennedy  V.  Moness 
(N.  C.  1905),  50  S.  E.  Rep.  450;  Young  v.  Grieb  (Minn.  1905),  104 
N.  W.  Rep.  131. 

693 


§    493  TITLE   BY   ADVERSE   POSSESSION.  [PART     III. 

does  the  heir  or  devisee  acquire  constructive  possession  by 
force  of  the  descent  east  or  of  the  devise.  Such  a  grantee, 
heir  or  devisee,  acquires  the  seisin  in  law,  and  the  construc- 
tive possession,  raised  by  implication  of  law,  is  but  the 
consequence  of  the  transfer  of  this  seisin.  Seisin  in  law  and 
constructive  possession  may  for  all  practical  purposes  be 
considered  synonymous.^*  But  where  there  is  an  actual  ad- 
verse possession  by  one,  there  can  be^no  constructive  posses- 
sion acquired  by  another.  * '  Two  persons  cannot  be  in  adverse 
constructve  possession  of  the  same  land  at  the  same  time. ' '  ^' 
But  in  order  that  a  disseisin  may  be  effected,  there  must  be  an 
actual  occupation  of  the  land  to  some  extent.  The  simple 
acceptance  of  a  title  by  deed  adverse  to  the  rightful  owner 
will  not  work  a  disseisin,  unless  an  actual  entry  is  made  upon 
the  land.^'    Possession  through  a  tenant  or  agent  is  of  course 

84  Co.  Lit.  153;  2  Prest.  Abst. '282;  Barr  v.  Gratz,  4  Wheat.  213; 
Green  v.  Liter,  8  Cranch  229;  Wyman  v.  Brown,  50  Me.  160;  Hodges  v. 
Eddy,  38  Vt.  344;  Caldwell  v.  Fulton,  44  Pa.  St.  475;  Effinger  V.  Lewis, 
32  Pa.  St.  367;  Matthews  r.  Ward,  10  Gill  &  J.  443;  Breckenridge  v. 
Orrasby,  J.  J.  Marsh.  244. 

35  3  Washburn  on  Real  Prop.  118;  Hodges  V.  Eddy,  38  Vt.  344; 
Farrar  V.  Heinrich,  86  Mo.  521;  Garrett  v.  Ramsey,  26  W.  Va.  345; 
Cook  V.  McKinney  (Cal.),  11  Pac.  Rep.  799;  Echole^  v.  Hubbard  (Ala.), 
7  So.  Rep.  817;  Jones  v.  Gaddis  (Miss.),  7  So.  Rep.  489;  Stevens  Lum- 
ber Co.  V.  Hughes  (Miss.  1905),  38  So.  Rep.  769;  Raleigh  v.  Wells  (Utah 
1905),  81  Pac.  Rep.  908;  Robinson  v.  Nordman  (Ark.  1905),  88  S.  W. 
Rep.  592;  Proctor  V.  Maine  Cent.  Co.  (Me.  1905),  60  Atl.  Rep.  423. 
"  In  a  controversy  between  adjoining  landowners  as  to  an  intervening 
strip  of  land,  an  instruction  that  one  cannot  be  in  constructive  posses- 
sion, and  another  in  actual  possession,  of  the  same  piece  of  land  at  the 
same  time,  was  proper."  Crouch  v.  Colbert  (Mo.  App.  1905),  84  S.  W. 
Rep.  992. 

36  Putnam  Schools  v.  Fisher,  38  Me.  324;  Cook  v.  Babcock,  11  Cush. 
210;  3  Smith  Ld.  Cas.  561;  Berniand  v.  Beecher,  71  Cal.  38,  11  Pac. 
Rep.  802;  Stanley  v.  Shoolbred,  25  S.  C.  181;  Aiken  V.  Ela,  62  N.  H. 
400;  Huntington  v.  Allen,  44  Miss.  654;  Denham  f.  Holeman,  26  Ga. 
182;  8.  c.  71  Am.  Dec.  193;  Eagle,  etc.,  Co.,  v.  Bank,  55  Ga.  44;  Sattei- 
white  V.  Rosser,  61  Tex.  166;  Bracken  v.  Jones,  63  Tex.  184;  Bradley 
V.  West,  60  Mo.  33;  Ringo  v.  Woodruff,  43  Ark.  469;  Yelverton  V. 
Steele,  40  Mich.  538;  Sparrow  v.  Hovey,  44  Mich.  63;  Peterson  v.  Mc- 
Cnllough,  50  Ind.  35;  Pepper  v.  O'Dowd,  39  Wis.  548;  Jewett  v.  Hussey, 

694 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    494 

sufficient  actual  possession  to  support  the  claim  of  adverse 
possession,^^  But  when  an  actual  occupation  of  a  part  of  the 
premises  has  taken  place,  then  the  doctrine  of  constructive 
possession  will,  under  certain  circumstances,  apply  and 
extend  the  disseisin  beyond  that  part  of  the  land  which  is  in 
the  actual  possession  of  the  disseisor.  If  possession  is  taken 
under  no  color  of  title,  the  disseisin  extends  no  farther  than 
the  actual  possession.^* 

§  494.  Actual  or  constructive  possession  —  Continued. —  On 
the  other  hand,  where  entry  is  made  under  color  of  title,  i.  e., 
under  some  instrument  of  writing,  such  as  a  deed  or  will, 
which  purports  to  convey  a  title,  the  actual  entry  will  place 

70  Me.  433;  Cook  v.  Babcock,  11  Cush.  (Mass.)  209;  Huntington  v. 
Whaley,  29  Conn.  391;  Ogden  V.  Jennings,  66  Barb.  (N.  Y.)  301,  62  N. 
Y.  526;  Bear  Valley  Coal  Co.  v.  Dewart,  95  Pa.  St.  72;  Creekmur  r. 
Creekmur,  75  Va.  430;  Core  V.  Faupel,  24  W.  Va.  238;  Parker  V. 
Banks,  79  N.  Car.  480;  Malloy  v.  Bowden,  86  N.  Car.  251;  Pegues  V. 
Warley,  14  S.  Car.  180.  "  To  constitute  adverse  possession  such  as  will 
work  a  disseisin  of  the  lawful  owner,  there  must  be  actual  possession 
and  occupancy  of  the  premises  for  the  requisite  period."  Proctor  v. 
Maine  Cent.  R.  Co.     (Me.  1905),  60  Atl.  Rep.  423. 

37  Elliott  V.  Dycke,  78  Ala.  150. 

38  Brimmer  v.  Longwarf,  5  Pick.  131 ;  Davidson  f.  Beatty,  3  Har.  & 
McH.  594;  Sicard  v.  Davis,  6  Pet.  124;  Cresap  v.  Huston,  9  Gill  269; 
Marble  v.  Price,  54  Mich.  466;  Flaherty  v.  McCormick,  113  111.  538; 
King  V.  Hunt  (Ky.),  13  S.  W.  Rep.  214;  Clarke  v.  Wagner,  74  N.  Car. 
791;  Scott  V.  Elkins,  83  N.  Car.  424;  Parker  v.  Banks,  79  N.  Car.  480; 
Moore  v.  Thompson,  69  N.  Car.  120;  Humphries  V.  Huffman,  30  Ohio  St. 
395;  Dothard  V.  Denson,  75  Ala.  482;  Burks  v.  Mitchell,  78  Ala.  61; 
Hall  V.  Gay,  68  Ga.  442 ;  Hammond  v.  Crosby,  68  Ga.  767 ;  Anderson  v. 
Dodd,  65  Ga.  402;  Creekmur  i".  Creekmur,  75  Va,  431;  Peterson  r.  Mc- 
Cullough,  50  Ind.  35;  Gore  v.  Faupel,  24  W.  Va.  238;  Brown  v.  Leete, 
6  Sawy.  (U.  S.)  332.  Compare  Wilson  v.  McEwan,  7  Oregon  87; 
Bracken  t?.  Jones,  63  Texas  184;  Bristol  v.  Carroll  County,  98  111.  84; 
Botsch,  90  111,  577;  Coleman  r.  Billings,  89  111.  183;  Meade  r.  Leffing- 
well,  83  Pa.  St.  187;  W'ells  v.  Jackson  Mfg.  Co.,  48  N,  H.  491;  Smith  v. 
Hosmer,  7  N,  H.  436 ;  s.  c.  28  Am.  Dec,  354.  "  One  who  holds  land  ad- 
versely, but  without  paper  color  of  title,  holds  only  that  land  which  he 
has  reduced  to  actual  possession."  Chastang  v.  Chastang  (Ala.  1904), 
37  So.  Rep.  799. 

695 


§   494  TITLE  BY  ADVERSE  POSSESSION.  [PART    III. 

the  holder  in  constructive  possession  of  the  whole  tract  of  land 
described  in  the  instrument."  And  this,  too,  where  there  is 
no  doubt  as  to  the  invalidity  of  the  deed,  whether  such  in- 
validity arises  from  a  defective  execution,  or  a  defective  title 
or  from  a  total  want  of  title  in  the  grantor.*"    Sheriff's  deeds, 

«»Munro  r.  Merchant,  28  N,  Y.  9;  Parker  v.  Wallis,  6©  Md.  15;  s.  c. 
45  Am.  Rep.  703 ;  Creekmur  v.  Creekmur,  75  Va.  431 ;  Johnson  v. 
Parker,  79  N.  Car.  475;  Stanton  v.  MuUins,  92  N.  Car.  624;  Veal  v. 
Robinson,  70  Ga.  809;  Childers  v.  Calloway,  76  Ala.  130;  Hymes  v. 
Bumstein,  72  Ala.  546;  Burks  v.  Mitchell,  78  Ala.  61;  Wilson  v.  Wil- 
liams, 52  Miss.  487 ;  Hunnicutt  v.  Peyton,  102  U.  S.  333 ;  Pike  v.  Evans, 
94  U.  S.  6;  Ellicott  v.  Pearl,  10  Pet.  (U.  S.)  412;  Clymer  v.  Dawkins, 
3  How.  (U.  S.)  674;  Evitts  v.  Roth,  61  Tex.  81;  Tremaine  v.  Weather- 
by,  58  Iowa  615;  Barger  v.  Hobbs,  67  111.  592;  Furlong  v.  Garrett,  44 
Wis.  HI;  Humphries  V.  Huffman,  33  Ohio  St,  395;  Smith  v.  McKay, 
30  Ohio  St.  409;  Gardner  v.  Gooch,  48  Me.  487;  Bailey  v.  Carleton,  12 
N.  H.  9;  s.  c.  37  Am.  Dec.  190;  Jakway  v.  Barrett,  38  Vt.  316;  Swift 
r.  Gage,  26  Vt.  224;  Thompson  V.  Burhans,  61  N.  Y.  52;  Boynton  V. 
Ashbrunter  (Ark.  1905),  88  S.  W.  Rep.  568.  One  who  enters  on  unoc- 
cupied land  under  a  deed,  with  intention  of  taking  possession  of  the 
whole,  acquires  possession  of  all  the  land  described.  Cuyler  V.  Bush 
(Ky.  1905),  84  S.  W.  Rep.  579,  27  Ky.  Law  Rep.  148. 

<o  2  Smith's  Ld.  Cas.  563 ;  Brackett,  Petitioner,  53  Me.  228 ;  Ellicott 
r.  Pearl,  10  Pet.  412;  Gardner  v.  Gooch,  48  Me.  492;  Jackson  V.  Newton, 
18  Johns.  355;  Green  V.  Lighter,  8  Cranch  250;  Ruffin  V.  Overby,  105 
N.  C.  78,  11  S.  E.  Rep.  184;  Kenrick  v.  Latham  (Fla.),  6  So.  Rep.  871; 
McMillan  v.  Gambill,  106  N.  C.  359,  11  S.  E.  Rep.  273;  Stumpf  v.  Oster- 
hage,  111  111.  82;  Advent  V.  Arrington,  105  N.  C.  377,  10  S.  E.  Rep.  991; 
Stanley  v.  Shoolbred,  25  S.  C.  181;  Hecock  v.  Van  Dusen  (Mich.),  45 
N.  W.  Rep.  343 ;  Harbison  V.  School  Dist.,  89  Mo.  184,  1  S.  W.  Rep.  30 ; 
Weeks  v.  Martin  (N.  Y.),  10  N.  Y.  S.  656.  But  see  Cooter  v.  Dearborn, 
115  111.  509;  Hargis  v.  Kansas  City,  etc.,  R.  R.  Co.,  100  Mo.  210,  13  S. 
W.  Rep.  530;  Smythe  v.  Henry,  41  Fed.  Rep.  705;  Ege  V.  Medlar,  82 
Pa.  St.  86;  Cheney  v.  Ringold,  2  H.  &  J.  (Md.)  87;  Baker  v.  Swan,  32 
Md.  355;  Creekmur  V.  Creekmur,  75  Va.  430;  Core  v.  Faupel,  24  W.  Va. 
238;  Stevens  v.  Hollister,  18  Vt.  294;  s.  c.  46  Am.  Dec.  154;  Mylar  v. 
Hughes,  60  Mo,  105;  Packard  v.  Moss,  8  Pac.  Rep.  (Cal.)  818;  Janio 
V.  Patterson,  62  Ga.  527;  Veal  v.  Robinson,  70  Ga,  309;  Welborn  v. 
Anderson,  37  Miss,  155;  Chiles  v.  Conley,  9  Dana  (Ky.)  385;  Golson  v. 
Hook,  4  Strob.  (S.  Car.)  23.  "Where  a  will  of  a  foreign  state  was  ex- 
ecuted before  two  witnesses  only,  though  insufficient  to  pass  title  to 
land,  it  is  available  as  color  of  title."  Love  V.  Turner  (S.  C.  1905),  51 
S.  E.  Rep.  101,  71  S.  C.  322. 
696 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    494 

and  other  involuntary  conveyances,  will  serve  as  color  of 
title.*^  But  a  mere  quit-claim  deed,  releasing  all  one's  inter- 
est in  the  land,  will  not  be  sufficient  color  of  title  to  give  the 
disseisor  constructive  possession  of  the  part  not  in  actual 
possession.  Only  such  deeds  are  generally  color  of  title,  as 
the  term  is  here  understood  and  employed,  which  operate  as  a 
primary  conveyance.*^  But  a  deed,  which  is  in  form  a  quit- 
claim, may  operate  as  a  primary  conveyance,  where  the  pos- 
session is  transferred  with  it.*^  Where  the  disseisor  is  one 
who  denies  the  validity  of  a  sale  of  his  own  land  under  exe- 
cution, he  holds  adverse  possession  under  color  of  the  original 
title  conveyed  to  him,  so  as  to  give  him  constructive  possession 
of  the  whole  tract.**  In  order  that  the  rightful  owner  may 
be  divested  of  the  whole  tract  described  in  the  deed,  the  partial 
occupation  must  be  of  land  included  in  the  description  of  the 
deed  which  is  to  serve  as  color  of  title,*°  and  the  actual  pos- 

*iKendrick  v.  Latham  (Fla.),  6  So.  Rep.  871;  Falls  of  Neuse  Mfg. 
Co.  V.  Brooks,  106  N.  C.  107,  11  S.  E.  Rep.  456;  Davis  v.  Burroughs, 
8  N.  Y.  S.  379;  Goodman  v.  Nichols  (Kan.),  23  Pac.  Hep.  957;  See- 
muller  v.  Thornton,  77  Tex.  156,  13  S.  W.  Rep.  846;  Miller  v.  Pence 
(111),  23  N.  E.  Rep.  1030;  Bakewell  v.  McKee  (Mo.),  14  S.  W.  Rep. 
119;  Kile  V.  Fleming,  78  Ga.  1;  Karn  v.  Haisley,  22  Fla.  317.  See  also, 
Adams  V.  Carpenter  (Mo.  1905),  86  S.  W.  Rep.  445;  Brigham  r.  Rean 
(Mich.  1905),  102  N.  W.  Rep.  845;  Tyee  Con.  Min.  Co.  r.  Longstedt, 
136  Fed.  Rep.  124.  "A  deed  in  which  the  description  is  so  indefinite  ag 
to  aflFord  no  means  to  identify  the  land  is  inoperative,  either  as  convey- 
ance of  title  or  as  color  of  title."  Pitts,  v.  Whitehead  (Ga.  1905),  49  S. 
E.  Rep.  693. 

42 Woods  V.  Banks,  14  N.  H.  Ill;  Wright  v.  Tichenor,  104  Ind.  185. 

43Minot  V.  Brooks,  16  N.  H.  376;  Swift  v.  Mulkey,  14  Ore.  59,  12 
Pac.  Rep.  76.  See  generally,  Pillow  v.  Roberts,  13  How.  472;  Jackson  v. 
Elston,  12  Johns.  454;  Kimball  v.  Lohmas,  31  Cal.  154;  Smith  v.  Shat- 
tuck,  12  Ore.  362  (tax  deed).  In  Colorado  it  is  said  that  there  may  be 
constructive  adverse  possession,  although  the  disseisor  does  not  hold 
possession  under  some  written  instrument  of  conveyance.  Lebanon 
Mining  Co.  v.  Rogers,  8  Colo.  34. 

4*  Gaines  v.  Saunders,  87  Mo.  557. 

4B  Jenkins  v.  Trager,  40  Fed.  Rep.  726;  Stanley  v.  Shoolbred,  25  S.  C. 
181;  Casey  v.  Dunn,  57  N.  Y.  Super.  Ct.  381,  8  N.  Y.  S.  305;  Davis  v. 
Stroud,  104  N.  C.  484,  10  S.  E.  Rep.  006;  Weeks  V.  Martin,  10  N.  Y.  S. 
656;  Deputron  v.  Young,  134  U.  S.  241;  Aiken  v.  Ela,  62  N.  H.  400. 

697 


§    495  TITLE   BY   ADVERSE   POSSESSION.  [PART     III. 

session  of  a  part  must  be  of  such  a  character  as  to  give  rise 
to  a  reasonable  presumption  that  the  owner  knows  that  the 
entry  was  made  under  color  of  title.  If  this  presumption  be 
not  reasonable  under  the  circumstances  of  the  case,  the  dis- 
seisin will  not  extend  beyond  the  actual  occupation.  The  de- 
scription must  indicate  clearly  the  metes  and  bounds  of  the 
land.  Any  obscurity  in  the  description  will  destroy  the  claim 
of  constructive  possession.*"  So,  also,  if  the  title  was  only 
void  as  to  a  part  of  the  land  conveyed,  the  occupation  of  that 
part  to  which  the  grantor  had  title  will  not  give  the  grantee 
constructive  possession  of  the  other  part  to  which  he  has  no 
title,  so  as  to  disseise  the  real  owner.*^  And  it  would  seem 
reasonable  that  the  term  color  of  title  should  apply  only  to 
deeds  and  other  instruments  of  convevance,  which  have  been 
recorded.'**  So,  also,  if  the  deed  conveys  two  separate  and 
distinct  parcels  of  land,  entry  and  actual  occupation  of  one 
tract  will  not  give  constructive  possession  to  the  other."" 

§  495.  What  acts  constitute  actual  possession  —  Visible  or 
notorious. —  No  particular  act  or  series  of  acts  are  necessary 
to  be  done  on  the  land,  in  order  that  the  possession  may  be 
actual.     Any   visible   or  notorious   acts,   which   clearly   evi- 

<8  Price  V.  Jackson,  91  N.  C.  11;  Etowah,  etc..  Mining  Co.  v.  Parker, 
73  Ga.  51;  Davis  v.  Strowd,  104  N.  C.  484,  10  S.  C.  666.  But  see  Hol- 
brook  V.  Forsythe,  112  111.  306,  See,  Pitts  v.  Whitehead  (Ga.  1905), 
49  S.  E.  Eep.  693. 

47  Bailey  v.  Carleton,  12  N.  H.  9.  See  Little  v.  Mequirer,  2  Me.  176; 
Sharp  V.  Brandon,  15  Wend.  599;  Barber  v.  SchaflFer,  76  Ga.  285;  Gar- 
rett V.  Eamsey,  26  W.  Va.  345;  Staton  v.  Mullis,  92  N.  C.  623;  Coal 
Creek  Mining  Co.  v.  Heck,  15  Lea  497;  Morris  v.  McClary,  43  Minn.  346. 

48  Hodges  V.  Eddy,  38  Vt.  345;  Van  Sickle  v.  Catlett,  75  Texas  404, 
13  S.  W.  Rep.  31.  But  see  contra,  Hunter  v.  Kelly,  92  N.  C.  283 ;  Brown 
r.  Brown,  106  N.  C.  451,  11  S.  E.  Rep.  647;  Bellows  v.  Jewell,  60  N.  H. 
420;  Minot  v.  Brooks,  16  N.  H.  374;  Chastain  v.  Phillips,  11  Ired.  (N. 
Car.)  225;  Hardin  V.  Barrett,  6  Jones  (N.  Car.)  159;  Know  v.  Hinson, 
8  Jones  (N.  Car.)  347;  Davis  v.  Higgins,  91  N.  Car.  382;  Rawson  V. 
Fox,  65  HI.  200;  Dickinson  v.  Bruden,  30  111.  279;  Lea  v.  Polk  Co.  Cop- 
per Co.,  21  How.    (U.  S.)  493. 

49  Grimes  v.  Ragland,  28  Ga.  123 ;  Barber  v.  Shaffer,  76  Ga.  285. 

698 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    495 

denee  the  intention  to  claim  ownership  and  possession,  will 
be  sufficient  to  establish  the  claim  of  adverse  possession.^"  A 
clandestine  use  of  the  premises  of  so  secret  a  character  that  the 
owner  is  not  likely  to  know  of  it,  will  not  constitute  a  dis- 
seisin. The  occupation  must  be  so  notorious  and  open,  that 
the  owner  may  be  presumed  to  have  notice  of  it  and  of  its 
extent.^^  There  are  some  acts,  so  notorious  in  their  character, 
that  they  raise  a  conclusive  presumption  of  notice  to  the 
owner  of  the  adverse  claim.  Such  are  the  maintenance  of 
fences  and  other  substantial  inclosures,  and  the  erection  of 
buildings.^2     But  in  the  case  of  the  erection  of  buildings, 

soEwing  V.  Burnett,  11  Pet.  41;  Bailey  v.  Carleton,  12  N.  H.  9;  La 
Frombois  V.  Jackson,  8  Cow.  604;  Faught  v.  Holway,  50  Me.  24;  Ford 
r.  Wilson,  35  Miss.  504;  Ewing  v.  Burnett,  11  Pet.  (U.  S.)  41;  Faught 
V.  Holway,  50  Me.  24;  EUicott  V.  Pearl,  10  Pet.  (U.  S.)  412.  Sales  by 
persons  claiming  to  have  been  in  possession  of  certain  swamp  lands  as 
owners  for  30  years  are  admissible  as  part  of  the  acts  showing  adverse 
possession.  Dowdell  v.  Orphans'  Home  See.  (La.  1905),  38  So.  Rep.  IG; 
Orphans'  Home  Soc.  v.  Dowdell,  Id. 

-12  Smith  Ld.  Gas.  563;  Cook  v.  Babcock,  11  Cush.  210;  Price  r. 
Brown,  101  N.  Y.  669;  Mauldin  v.  Cox,  07  Cal.  387;  Wait  v.  Gove 
(Ky.),  12  S.  W.  Rep.  1068;  Watkins  v.  Lynch,  71  Cal.  21,  11  Pac.  Rep. 
808 ;  Barker  v.  Deignan,  25  S.  C.  252 ;  Wilson  v.  Williams,  52  Miss.  488 ; 
Moore  v.  Thompson,  69  N.  Car.  120;  Unger  v.  Mooney,  63  Cal.  586; 
a.  c.  49  Am.  Rep.  100 ;  Miller  v.  Myles,  46  Cal.  539 ;  Thompson  v.  Pioche, 
44  Cal.  508;  Soule  V.  Barlow,  49  Vt.  329;  Samuel  v.  Borrowscale,  104 
Mass.  207;  Clark  V.  Gilbert,  39  Conn.  97;  School  Dist.  v.  Lynch,  33 
Conn.  334;  Trustees  v.  Kirk,  84  N.  Y.  215;  s.  c.  38  Am,  Rep.  505; 
Culver  V.  Rhodes,  87  N.  Y.  354;  Foulke  v.  Bond,  41  N.  J.  L.  527;  Wil- 
son V.  Williams,  52  Miss.  488;  Campau  V.  Dubois,  39  Mich.  274.  "A 
possession  which  was  at  its  inception  friendly  and  in  subordination  to 
the  true  title  does  not  become  adverse  merely  by  change  of  mental  atti- 
tude."    Coberly  v.  Coberly   (Mo.  1905),  87  S.  W.  Rep.  957. 

szpoignard  v.  Smith,  6  Pick,  172;  Cutter  v.  Cambridge,  6  Allen  20; 
Price  V.  Brown,  101  N.  Y.  669;  Smith  v.  Roberts,  62  Ala.  83;  Allen  v. 
Allen,  58  Wis.  205;  Sedg.  &  W.  Trial  of  Title  to  Land,  Sec.  758;  Angell 
on  Lira.,  Sees.  390,  391,  392,  and  cases  cited  in  the  notes;  Bell  v.  Den- 
son,  56  Ala.  444;  Leeper  v.  Baker,  68  Mo.  405;  Turner  v.  Hall,  60  Mo. 
275.  See  Ford  f.  Wilson,  35  Miss.  505;  Martin  v.  Judd,  81  111.  488; 
Smith  t'.  Jackson,  76  111.  254;  Clement  f.  Perry,  34  Iowa  567;  Hunton 
V.  Nichols,  55  Tex.  217;  Read  V.  Allen,  63  Tex.  154;  Door  V.  School 
Dist.,  40  Ark.  243;  Humphries  v.  Huffman,  33  Ohio  St.  403;  Bowen  V. 

699 


§    495  TITLE   BY   ADVERSE   POSSESSION.  [PART     III. 

without  other  accompanying  acts  of  ownership,  the  disseisin 
would  only  extend  to  the  land  covered  by  the  buildings,  to- 
gether with  the  necessary  right  of  ingress  and  egress."' 
Merely  surveying  the  land,  and  causing  a  line  to  be  run 
around  it,  and  lopping  or  slashing  trees  to  indicate  the  course 
of  the  line,  will  not  be  sufficient.  The  inclosure  must,  in  all 
ordinary  cases,  be  substantial.''*  But  there  are  cases  where 
an  enclosure  is  not  necessary.  Notice  of  possession  may  then 
be  presumed  from  other  acts  of  ownership,  as  where  taxes  are 
paid  on  unoccupied  land  by  one  who  claims  it  under  color  of 
title.*"  So,  also,  where  the  property  is  of  such  a  character, 
and  is  so  circumstanced,  that  there  can  be  neither  actual 

Guild,  130  Mass.  121;  Ewing  v.  Burnet,  11  Pet.  (U.  S.)  41;  Gerham 
V.  Erdman,  105  Pa.  St.  371;  Waltemeyer  v.  Baughman,  63  Md.  200; 
Torey  v.  Bigelow,  56  Iowa  381;  Pike  t'.  Robertson,  79  Mo.  615;  Elliott 
V.  Dycke,  78  Ala.  150;  Watts  v.  Owens,  62  Wis.  512;  Eastern  R.  v. 
Allen,  135  Mass.  13.  Compare  Clarke  v.  Wagner,  74  N.  Car.  791 ;  Mor- 
rell  V.  Ingle,  23  Kan.  32;  Real  Property  Trials  (Malone),  Sees.  277- 
278;  Trial  of  Titles  to  Land  (Serg.  &  Wait.),  Sec.  707;  Watson  V. 
Mancil,  76  Ala.  600.  See  McCreary  v.  Everding,  44  Cal.  246.  Compare 
PuUen  V.  Hopkins,  1  Lea  (Tenn.)  741. 

espoignard  v.  Smith,  6  Pick.  172;  Bennett  V.  Clemence,  6  Allen  18; 
Erwin  v.  Olmsted,  7  Edw.  229;  Stedman  v.  Smith,  8  E.  &  Bla.  1.  See 
Sweope  V.  Ward    (1904),  84  S.  W.  Rep.  895. 

5*  Kennebec  Purchase  v.  Springer,  4  Mass.  416;  McLean  v.  Smith,  106 
N.  C.  172,  11  S.  E.  Rep.  184;  Carley  v.  Parton,  75  Tex.  98,  12  S.  W. 
Rep.  950;  Barker  v.  Deignan,  25  S.  C.  252;  CHara  v.  Richardson,  4» 
Pa.  St.  391;  Slice  V.  Derrick,  2  Rich.  (S.  Car.)  627;  Morrison  v.  Chapin,. 
97  Mass.  72;  Kerr  V.  Hitt,  75  111.  51;  Soule  v.  Barlow,  48  Vt.  132; 
Walsh  V.  Hill,  41  Cal.  571;  Smith's  L.  C.  717,  et  seq. 

55Holbrook  v.  Gouvemeur,  11*  111.  623;  Cooter  v.  Dearborn,  115  111. 
509;  Ruffin  V.  Overby,  105  N.  C.  78,  11  S.  E.  Rep.  251;  Stockton  v.. 
Geissler,  43  Kan.  612,  23  Pac.  Rep.  619;  McNoble  v.  Justiniano,  70  Cal. 
395,  11  Pac.  Rep.  742;  Snowden  V.  Rush,  76  Tex.  197,  13  S.  W.  Rep. 
189;  Wren  v.  Parker,  57  Conn.  529,  18  Atl.  Rep.  790;  Perry  v.  Barton, 
111  111.  138;  Stumpf  V.  Osterhage,  111  111.  827.  In  some  of  the  States, 
the  payment  of  taxes  is  a  requisite  to  the  daim  of  adverse  possession. 
McNoble  V.  Justiniano,  70  Cal.  395,  1 1  Pac.  Rep.  742 ;  Snowden  v.  Rush, 
76  Texas  197;  Juck  V.  Fewell,  42  Fed.  Rep.  517.  On  an  issue  as  to 
adverse  possession,  the  payment  of  taxes  is  admissible  as  a  circum- 
stance in  determining  the  fact  and  extent  of  possession.  Chastang  v. 
Chastang  (Ala.  1904),  37  So.  Rep.  799.  See  also,  Murphy  v.  Nelson 
700 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    496 

permanent  occupation  nor  residence,  on  account  of  its  in- 
capacity to  receive  any  permanent  improvement,  these  acts 
will  not  be  necessary.  The  disseisin  may  be  manifested  by 
any  other  public  acts  of  ownership  which  were  possible  with 
property  of  that  kind.*^®  Very  often  the  Statutes  of  Limita- 
tions in  the  different  States  state  expressly  what  acts  will 
constitute  a  visible  or  notorious  possession,  and  what  will  not. 
Wherever  there  are  such  provisions,  they  will  supersede  the 
presumptive  conclusions  of  law  explained  and  presented  in 
this  paragraph.**^ 

§  496.  Possession  must  be  distinct  and  exclusive. —  The  pos- 
session must  also  be  distinct  and  exclusive,  i.  e.,  the  owner 
must  be  actually  ousted  of  possession.  A  joint  possession, 
even  though  adverse  to  each  other,  will  not  be  a  disseisin. 
Where  two  are  in  possession,  the  seisin  follows  the  title,  and 
there  can  be  no  disseisin,  unless  the  rightful  owner  is  al- 
together deprived  of  possession.^*     If  the  wrong-doer  disturbs 

(S.  D.  1905),  102  N.  W.  Rep.  691;  Glos  v.  Miller,  213  111.  22,  72  N.  E. 
Rep.  714;  Towson  v.  Denson   (Ark.  1905),  86  S.  W.  Rep.  661. 

56  E wing  V.  Burnett,  11  Pet.  41;  Blood  v.  Wood,  1  Mete.  528;  Faught 
V.  Holway,  50  Me.  24 ;  Den  v.  Hunt,  Spenc.  487 ;  Brett  v.  Farr,  66  Iowa 
684  (cutting  timber)  ;  Costello  v.  Edson,  44  Minn.  135,  46  N.  W.  Rep. 
299  (cutting  away  underbrush  and  gnrt)bing)  ;  Stockton  V.  Geissler,  43 
Kan.  612,  23  Pac.  Rep.  C19  (advertising  and  offering  for  sale)  ;  Ford 
r.  Wilson,  35  Miss.  490;  s.  c.  72  Am.  Dec.  137;  Moss  v.  Scott,  2  Dana 
(Ky.)  275;  Royall  V.  Lisle,  15  Ga.  545;  s.  c.  60  Am.  Dec.  712;  Dorr 
V.  School  Dist.,  40  Ark.  237 ;  Draper  v.  Shoot,  25  Mo.  197 ;  s.  c.  69  Am. 
Dec.  462;  Sleeper  v.  Baker,  68  Mo.  400;  Merchants'  Bank  v.  Calvin,  60 
Mo.  559;  Coleman  v.  Billings,  89  111.  183;  Clement  v.  Perry,. 34  Iowa 
567;  Brumagin  V.  Bradshaw,  39  Cal.  24;  Robinson  V.  Sweet,  3  Me.  315; 
Ewing  V.  Burnett,  11  Pet.  (U.  S.)  41;  Ellieott  v.  Pearl,  10  Pet.  (U.  S.) 
412.  "Cutting  down  a  few  trees  in  swamps,  without  it  appearing  defi- 
nitely whether  the  intent  was  to  enter  into  possession,  is  not  sufficient 
to  establish  a  title  by  prescription."  Dowdell  v.  Orphans'  Home  Soc. 
(La.  1905),  38  So.  Rep.  16;  Orphans'  Home  Soc.  v.  Dowdell,  Id. 

67  Price  V.  Jackson,  91  N.  C.  11. 

68  Hawk  V.  Senseman,  6  Serg.  &  R.  21;  Hodgkin  v.  McVeigh'  (Va.), 
10  S.  E.  Rep.  1065;  GafTord  v.  Strouse  (Ala.),  7  So.  Rep.  248;  Lawrence 
r.  Lawrence,  14  Ore.  77,  12  Pac.  Rep.  186;  McQueen  v.  Fletcher,  77  Ga. 

701 


§    497  TITLE   BY   ADVERSE   POSSESSION.  [PART     III. 

the  real  owner  by  his  entry  and  joint  possession,  the  latter 
may  elect  to  consider  himself  disseised,  and  by  abandoning 
possession  may  bring  his  action  of  ejectment.  But  disseisin 
by  election  is  not  sufficient  to  create  such  an  adverse  pos- 
session as  will  ripen  into  a  good  title.  In  order  that  the  dis- 
turbance of  possession  may  be  treated  by  the  owner  as  a 
disseisin,  he  must  abandon  the  possession  which  he  has.  If 
he  does  not  elect  to  abandon  the  premises  to  the  intruder,  the 
intrusion  of  the  wrong-doer  does  not  work  a  disseisin.""  But 
the  wrong-doer  need  not  be  in  exclusive  possession  of  the 
entire  premises.  His  exclusive  possession  of  a  part,  if  he 
only  claims  title  to  that  part,  will  work  a  disseisin  as  to  that 
part  as  effectually  as  if  the  owner  had  been  driven  out  of 
possession  of  the  whole  tract  of  land.®** 

§  497.  Possession  —  Hostile  and  adverse. —  Under  the  early 
common  law,  it  was  required  that  the  disseisor  should  be 
recognized  by  the  lord  of  the  manor,  and  his  other  tenants,  as 
one  of  the  peers  of  the  baron's  court  in  order  that  a  complete 
disseisin  may  be  effected.  But  this  rule  has  long  since  be- 
come obsolete  in  England,  and  never  did  exist  in  this  coun- 
try."^   And  instead  of  this  complicated  process,  it  is  now 

444;  Pepper  v.  O'Dowd,  .39  Wis.  538;  Furlong  V.  Garrett,  44  Wis.  Ill; 
Wilson  V.  Williams,  ,'52  Miss.  488;  Dixon  v.  Cook,  47  Miss.  220;  Satter- 
white  V.  Rosser,  61  Tex.  166;  Bracken  V.  Jones,  63  Tex.  184;  Thompson 
r.  Pioche,  44  Cal.  508;  Unger  v.  Mooney,  63  Cal.  586,  49  Am.  Rep.  100; 
Armstrong  v.  Morrill,  14  Wall.  (U.  S.)  120;  Malloy  v.  Bowden,  86  N. 
Car.  251;  Ekey  v.  Inge,  87  Mo.  493;  Pike  V.  Robertson,  79  Mo.  615; 
Creekmur  v.  Creekmur,  75  Va.  430;  Turpin  V.  Saunders,  32  Gratt.  (Va.) 
27;  Core  v.  Faupel,  24  W.  Va.  238;  Doe  v.  Campbell,  10  Johns.  (N.  Y.) 
477 ;  Cahill  v.  Palmer,  45  N.  Y.  484 ;  Saxton  v.  Hunt,  20  N.  J.  L.  487. 

59  Taylor  v.  Horde,  1  Burr.  60;  Doe  v.  Hull,  2  D.  &  R.  38;  Proprs.  v. 
McFarland,  12  Mass.  327;  Munro  V.  Ward,  6  Allen  150;  Burns  V.  Lynde, 
6  Allen  312;  Smith  v.  Burtis,  6  Johns.  215. 

80  Kellogg  r.  Mullen,  39  Mo.  174;  Tamm  V.  Kellogg,  49  Mo.  118; 
Soule  r.  Barlow,  49  Vt.  329 ;  Russell  f.  Maloney,  39  Vt.  583 ;  Bartholo- 
mew V.  Edwards,  1  Houst.  17;  Den  V.  Hunt,  20  N.  J.  L.  487;  Allen  r. 
Peters,  "77  Texas  599;  Coombs  v.  Parsons,  82  Me.  326,  19  Atl.  Rep.  826. 

«iCo.  Lit.  266  b,  Butler's  note  217;  3  Washburn  on  Real  Prop.  126;  2 
Prest.  Abst.  284. 
702 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    497 

only  required  that  the  possession  should  be  hostile  and  adverse 
to  the  rightful  owner.®''  That  is,  it  must  be  held  under  a 
claim  of  title  which  is  adverse  to  the  disseisee's  title,  and  the 
intention  must  be  to  resist  the  title  of  the  latter.®'  If  this  in- 
tention to  claim  a  hostile  and  adverse  title  is  not  established, 
the  disposition  is  only  a  trespass,  and,  however  long  continued, 
will  not  make  a  disseisin.®*  On  the  other  hand,  the  intention 
to  claim  an  adverse  title  to  the  true  owner,  and  an  entry 
under  a  defective  claim  of  title,  "will  not  prevent  such  a  one 
from  showing  that  he  did  have  the  true  title  by  another  con- 
veyance.®'^ But  there  need  not  be  a  willful  entry  to  deprive 
the  owner  of  what  is  lawfully  his.     All  that  is  necessary  is  to 

•sNewhall  v.  Wheeler,  7  Mass.  189;  Cobum  v.  Hollis,  3  Mete.  125; 
Slater  r.  Rawson,  6  Mete.  439;  Lund  v.  Parker,  3  N.  H.  49: 

63  Bradstreet  V.  Huntington,  5  Pet.  439;  Ewing  v.  Burnet,  11  Pet.  41; 
Bath  V.  Valdez,  70  Cal.  350,  11  Pac.  Rep.  725;  Smith  v.  City  of  Osage 
(Iowa),  45  N.  W.  Rep.  404;  Core  V.  Faupel,  24  W.  Va.  238;  Hudson 
V.  Putney.  14  W.  Va.  561;  Beatty  v.  Mason,  30  Md.  409;  O'Daniel  r. 
Bakers'  Union,  4  Houst.  (Del.)  488;  Snoddy  r.  Kreutch,  3  Head 
(Tenn.)  304;  Cordon  f.  Sizer,  .39  Miss.  805;  Magee  r.  Magee.  37  Miss. 
152;  Ringo  V.  WoodruflF,  43  Ark.  469;  Cracken  r.  Jones,  63  Tex.  184; 
Pepper  v.  O'Dowd,  39  Wis.  548;  Morse  r.  Churchill,  41  Vt.  649;  Soule 
r.  Barlow,  49  Vt.  329 ;  Russell  V.  Davis,  38  Conn.  562 ;  Smith  v.  Burtis, 
6  Johns  (X.  Y.)  218;  Jackson  v.  Wheat,  18  Johns.  (N.  Y.)  40;  Creek- 
mur  r.  Creekniur,  75  Va.  430;  Clark  v.  McClure,  10  Gratt.  (Va.)  305. 
"  Notorious  adverse  possession  sufficiently  establishes  actual  notice  to 
holder  of  legal  title."  Love  V.  Turner  (S.  C.  1905),  51  S.  E.  Rep.  101, 
71  S.  C.  322. 

04  Putnam  School  V.  Fisher,  38  Me.  324;  Grant  f.  Fowler.  39  N.  H. 
101;  Hodges  I'.  Eddy,  41  Vt.  488;  Beatty  v.  Mason,  30  Md.  409;  Carroll 
V.  Gillion,  33  Ga.  539;  Magee  v.  Magee,  37  Miss.  152;  Cook  J'.  Babcock, 
11  Cush.  210;  Grube  v.  Wells,  34  Iowa  148;  Musick  v.  Barney,  49  Mo. 
458;  McCall  r.  Wells,  55  Mich.  171;  Dixon  v.  Ahem  (Nev.),  24  Pac.. 
Rep.  337;  Horton  r.  Davidson  (Pa.),  19  Atl.  Rep.  934;  People  r. 
Lowndes,  55  Hun  469;  Durham  V.  Townsend,  118  N.  Y.  281.  23  N.  E. 
Rep,  367;  Maple  r.  Stevenson,  122  Ind.  368,  23  N.  E.  Rep.  854;  Chicago, 
etc.,  Ry.  Co.,  r.  Gait  (111.),  23  N.  E.  Rep.  425,  24  N.  E.  Rep.  674;  Law- 
rence r.  Lawrence,  14  Ore.  77,  12  Pac.  Rep.  186.  "  A  possessor  without 
title  and  in  bad  faith  cannot  complain  of  the  staleness  of  a  demand  for 
restitution."    Messi  v.  Frechede  (La.  1904),  37  So.  Rep.  600. 

65  Logan  V.  Fitzgerald,  92  N.  C.  644.  "  In  order  to  show  adverse  pos- 
session under  color  of  title,  the  land  must  be  located  within  the  bounda- 

703 


§    497  TH'LE  BY  ADVERSE  POSSESSION.  [PART    III. 

show  an  unequivocal  claim  of  title  adverse  to  the  real  owner. 
And  if  the  claim  is  made  under  a  mistake  of  fact  or  law, 
and  the  alleged  disseisor  honestly  believes  the  land  to  belong 
to  him,  it  will  be  just  as  much  an  act  of  disseisin  as  if  it  had 
been  done  knowingly,  and  with  the  express  purpose  to  de- 
fraud the  rightful  owner."'  It  is  now  provided  by  statute  in 
some  of  the  States  that  there  can  be  no  adverse  possession, 
except  when  the  claim  of  title  is  made  in  good  faith  and  under 
color  of  title."^  An  apparent  exception  to  this  rule  arises 
where  one  occupies  land  up  to  a  certain  line,  whether  indi- 
cated by  a  fence  or  not,  under  a  mistaken  belief  that  it  was 
the  true  line,  but  with  no  intention  to  claim  beyond  the 
actual  line,  or  legal  boundary.  Such  possession  will  not  be 
deemed  so  adverse  as  to  cause  the  Statute  of  Limitations  tt> 
run  against  the  rightfuL  claim.®^  But  if  the  adjoining  own- 
ers orally  agreed  upon  a  dividing  line  as  the  true  line,  the 

ries  of  the  deed  conferring  such  color  of  title."    Marshall  v.  Corbett  ( N. 
C.  1905),  50  S.  E.  Rep.  210. 

66  Johnson  r.  Gorham,  38  Conn.  521;  Bryan  V.  Atwater,  5  Day  181; 
Robinson  v.  Phillips,  65  Barb.  418;  s.  c.  56  N.  Y.  634;  Russell  V.  Malo- 
ney,  39  Vt.  583;  Faught  V.  Holway,  50  Me.  24;  Carmody  v.  Chicago, 
etc.,  R.  R.  Co.,  Ill  111.  69;  Vandall  v.  Martin,  42  Minn.  163,  44  N.  W. 
Rep.  525;  McCormiek  v.  Silsby,  82  Cal.  72,  22  Pac.  Rep.  874;  Grand 
Tower,  etc.,  Co.,  V.  Gill,  111  111.  541.  "One  may  acquire  title  by  adverse 
possession  to  land  adjoining  his  lot,  though  he  takes  and  holds  posses- 
sion of  it  under  a  mistake  as  to  the  location  of  the  boundary."  Rennert 
V.  Shirk   (Ind.  1904),  72  N.  E.  Rep.  546. 

67  ArnoM  v.  Woodward  (Colo.),  23  Pac.  Rep.  444. 

68  Huntington  v.  WTialey,  29  Conn.  391;  Holton  v.  Whitney,  30  Vt. 
410;  Winn  r.  Abeles,  35  Kan.  85;  Alexander  v.  Wheeler,  78  Ala.  167; 
Wait  V.  Cover  (Ky.),  12  S.  W.  Rep.  1068;  McLean  v.  Smith,  106  N.  C. 
172,  11  S.  E.  Rep.  184;  Winn  v.  Abeles,  10  Pac.  Rep.  (Kan.)  443; 
Huckshorn  v.  Hartwig,  81  Mo.  648;  Acton  v.  Dooley,  74  Mo.  63;  Alex- 
ander V.  Wheeler,  69  Ala.  332 ;  s.  c.  78  Ala.  167 ;  Howard  v.  Reedy,  29 
Ga.  152;  Worcester  v.  Lord,  56  Me.  265;  Dow  v.  McKenney,  64  Me.  138; 
Bicker  f.  Hibbard,-  73  Me.  105 ;  Robinson  v.  Kinne,  70  N.  Y.  147.  Where 
^  party  claims  real  estate  only  to  a  given  line,  and  makes  no  claim  as 
to  where  the  line  is  located,  his  adverse  possession  is  limited  to  the  line 
wherever  it  may  be  established.  Wilcox  v.  Smith  (Wash.  1905),  80 
Pac.  Rep.  803. 

704 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    497 

possession  would  be  adverse  to  the  line  so  agreed  upon,  and 
would  ripen  into  a  good  title  by  the  lapse  of  time.  But  not 
so,  if  they  merely  agreed  to  build  a  fence  for  convenience,  and 
without  any  intention  to  consider  it  the  true  line.®^  Adverse 
possession  would  also  be  presumed  from  a  location  of  a  fence 
in  accordance  with  a  survey,  and  the  title  so  acquired  would 
not  be  affected  by  a  resurvey,  which  might  be  made  after  the 
expiration  of  the  statutory  period  of  limitation.'^*'  As  a  gen- 
eral proposition,  any  acts  of  ownership  exercised  by  the  wrong- 
doer, which  would  make  his  possession  sufficiently  visible  and 
notorious  as  to  raise  the  presumption  of  notice  to  the  owner 
of  such  adverse  holding,  will  be  ample  evidence  of  the  ad- 
verse claim  of  title,  and  actual  notice  to  the  owner  or  an 
express  claim  or  affirmation  of  such  claim  of  title  is  not  re- 
quired to  establish  its  existence.^^  But  such  a  possession  never 
raises  a  conclusive  presumption  of  an  adverse  claim.  It  is 
only  prima  facie  proof  of  it,  and  may  be  rebutted  by  the 
proof  of  other  facts,  which  show  that  the  holding  was  not  in- 
tended to  be  adverse  to  the  rightful  owner.  This  is  a  question 
for  the  jury.'^  And  where  the  character  of  the  possession, 
i.  e.,  whether  subordinate  or  adverse,  is  doubtful,  the  pre- 
ss Burrell  V.  Burrell,  11  Mass.  294;  Doe  v.  Bird,  11  East  49;  Quinn 
V.  Windmiller,  67  Cal.  461;  Bosworth  v.  City  of  Mt.  Sterling  (Ky.),  13 
S.  W;  Rep.  920;  Irvin  v.  Adler,  44  Cal.  559;  Grim  v.  Curley,  43  Cal, 
251;  Shiels  f.  Roberts,  64  Ga.  370;  Boho  V.  Richmond,  25  Ohio  St.  115; 
Adams  v.  Rockwell,  16  Wend.  (N.  Y.)  285;  Brown  v.  Leete,  6  Sawy. 
(U.  S.)  332;  Sherman  v.  Kane,  37  N.  Y.  57;  Tobey  v.  Secor,  60  Wis. 
310;  Bader  v.  Zeise,  44  Wis.  96;  Bartlett  v.  Secor,  56  Wis.  520;  Tracy 
V.  Newton,  57  Iowa  210;  Heinrichs  v.  Terrell,  65  Iowa  25;  Bitter  v. 
Seathoff,  98  111.  266;  White  V.  Hopeman,  43  Mich.  267;  s.  c.  38  Am. 
Rep.  178;  Brown  v.  Cockerell,  33  Ala.  38. 

70  Carpenter  v.  Monks  (Mich.),  45  N.  W.  Rep.  477;  Hughes  V.  Pick- 
ering, 14  Pa.  St.  297.  See,  Wilcox  v.  Smith  (Wash.  1905),  80  Pac.  Rep. 
803. 

71  Liddon  v.  Hodnett,  22  Fla.  442.  "  A  possession  which  is  adverse 
and  actually  known  to  the  true  owner  is  equivalent  to  a  possession  which 
is  open  and  notorious  and  adverse."  McCaughn  v.  Young  (Miss.  1905), 
37  So.  Rep.  839. 

T2  Thompson  v.  Kauffelt,  110  Pa.  St.  209,  1  Atl.  Rep.  867;  Thompson 

45  705 


§   498  TITLE  BY  ADVERSE  POSSESSION.  [PART    III. 

sumption  of  law  is  that  it  is  subordinate  and  not  adverse  to 
the  lawful  owner.'^  The  fact  that  the  disseisor  accepts  a 
deed  of  conveyance  to  the  land  which  he  previously  had  in 
adverse  possession  does  not  necessarily  destroy  the  adverse 
character  of  his  possession.''*  And  where  property  held  sub- 
ordinately  descends  upon  the  tenant's  death,  and  is  occupied 
by  his  widow,  the  holding  by  her  is  presumed,  in  the  ab- 
sence of  any  proof  to  the  contrary,  to  continue  to  be  subordi- 
nate to  the  rightful  owner.'" 

§  498.  Adverse  possession,  when  entry  was  lawful. —  It  is  a 
legal  maxim  that  when  once  the  seisin  is  proved  to  be  in 
one,  it  will  be  presumed  to  continue  in  that  person  until  the 
presumption  is  overthrown  by  the  proof  of  facts  inconsistent 
therewith.'®  If,  therefore,  the  entry  is  made  with  the  con- 
sent of  the  owner,  and  subservient  to  his  claim  of  title,  the 
law  will  presume  that  the  continued  possession  is  subordinate 
to  the  superior  title  of  the  owner.''  So  it  has  been  held  where 
one  enters  under  a  bond  for  a  deed  without  paying  the  con- 
sideration, or  with  the  intent  to  purchase,  and  not  to  claim  ad- 
verse title  to  the  owner,  he  cannot  claim  title  by  adverse 
possession.'^     The  possession  of  a  devisee  is  not  presumed  to 

r.  Phila.,  etc.,  Coals  Iron  Co.  (Pa.),  19  Atl.  Eep.  346;  Holbrook  V. 
Bowman,  62  N.  H.  313. 

73  Smith  V.  Burtis,  6  Johns.  218;  Jackson  v.  Sharp,  9  Johns.  163; 
Stevens  v.  Taft,  11  Gray  36;  Greer  v.  Tripp  (Cal.),  12  Pac.  Rep.  301; 
McLean  V.  Smith,  106  N.  C.  272,  11  S.  E.  Rep.  184;  Spencer  r.  O'Neill, 
100  Mo.  49,  12  S.  W.  Rep.  1054;  Boohe  v.  Best,  75  Texas  568,  12  S.  W. 
Rep.  1000;  Monk  v.  Wilmington   (N.  C.  1904),  49  S.  E.  Rep.  345. 

74  Garvin  v.  Garvin,  31  S.  C.  581,  19  S.  K  Rep.  507;  Sanders  v. 
Logue,  88  Tenn.  355,  12  S.  W.  Rep::  722. 

75  Drury  v.  Saunders,  77  Texas  278. 

78  Long  V.  Mast,  11  Pa.  St.  189;  Babcock  v.  Utter,  1  Abb.  App.  27; 
Stephens  v.  McCormick,  ff  Bush  181. 

77  Union  Pac.  Ry.  Co.  v.  Kindred,  43  Kan.  134;  23  Pac.  112;  Curtis 
V.  LaGrande  Water  Co.  (Ore.),  23  Pac.  Rep.  808. 

78  Knox  V.  Hook,  12  Mass.  329;  Brown  v.  King,  5  Mete.  173;  Vrooman 
V.  Shepherd,  14  Barb.  441;  Den  v.  Kip,  29  N.  J.  L.  351;  Coojrler  v. 
Rogers  (Fla.),  7  So.  Rep.  391;  Anderson  17.  McCormick,  18  Ore.  301,  22 

706 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    498 

be  adverse  to  the  creditors  of  the  deceased.'®  The  same  rule 
is  held  to  apply  to  possession  under  a  void  judicial  sale.^** 
But  if  the  purchase  money  has  been  paid,  the  possession  is 
presumed  to  be  adverse.®^  Such  also  is  the  rule  in  regard 
to  the  possession  of  the  joint  estate  by  one  of  several  tenants 
in  common.*^     Such  also  is  the  case  with  the  possession  of  the 

Pac.  Rep.  1062;  Mhoon  v.  Cain,  77  Texas  316,  14  S.  W.  Rep.  24j 
Stamper  v.  Griffin,  12  Ga.  457;  Jackson  v.  Foster,  12  Johns.  (N.  Y.) 
490;  Re  Public  Parks  Depart.,  73  N.  Y.  560;  Den  v.  Kip,  2  Dutch.  (N. 
J.)  351;  Harris  v.  Richey,  56  Pa.  St.  395;  Osterman  V.  Baldwin,  6 
Wall.  (U.  S.)  116;  Hermans  v.  Schmaltz,  7  Fed.  Rep.  566;  s.  c.  10 
Biss.  (U.  S.)  323.  See  Adams  v.  Fullam,  47  Vt.  558;  Walker  v.  Craw- 
ford, 70  Ala.  567;  Potts  v.  Coleman,  67  Ala.' 221;  Beard  v.  Ryan,  78 
Ala.  37;  Moring  v.  Abies,  62  Miss.  263;  Benson  v.  Stewart,  30  Miss.  49; 
Core  V.  Faupel,  24  W.  Va.  238;  Williams  v.  Cash,  27  Ga.  507.  "In 
ejectment,  where  defendant  claims  by  adverse  possession,  contracts 
signed  by  him  with  plaintiff  for  the  purchase  of  the  land  were  admissi- 
ble in  evidence."  Olson  v.  Burk  (Minn.  1905),  103  N.  W.  Rep.  335. 
"  Where  a  party  goes  into  possession  of  land  under  a  parol  purchase,  and 
surrenders  it  before  having  paid  any  of  the  purchase  money,  his  pos- 
session will  not  inure  to  his  benefit,  as  against  the  one  from  whom  he 
purchased."    Moore  v.  Mobley  (Ga.  1905),  51  S.  E.  Rep.  351. 

78  Roberts  v.  Smith,  21  S.  C.  445.  "Where  a  devisee  for  life  in  pos- 
session suffered  the  property  to  be  sold  for  nonpayment  of  taxes,  and 
his  wife  became  the  purchaser  at  the  tax  sale,  her  possession  could  not 
be  adverse  to  his  so  as  to  create  a  title  in  her  by  limitation."  Blair  v. 
Johnson   (HI.  1905),  74  N.  E.  Rep.  747,  215  111.  552. 

80  Hall  V.  Hall,  27  W.  Va.  468. 

81  Brown  v.  King,  5  Mete.  173;  Pace  v.  Payne,  73  Ga.  670;  Newton  v. 
Mayo,  62  Ga.  11;  Taylor  v.  Dugger,  66  Ala.  444;  Moring  f.  Abies.  62 
Miss.  263;  Niles  f.  Davis,  60  Miss.  750;  Catlino  v.  Decker,  38  Conn. 
262;  Potts  V.  Coleman,  67  Ala.  221;  Tillman  f.  Spann,  68  Ala.  102; 
Taylor  v.  Dugger,  66  Ala.  445.    Compare  Core  v.  Faupel,  24  W.  Va.  238. 

82  McClung  t".  Ross,  5  Wheat.  124 ;  Zeller's  Lessee  v.  Eckert,  4  How. 
295;  Campbell  V.  Laclede  Gas  Co.,  84  Mo.  352;  Campau  V.  Campau,  44 
Mich.  31;  Neely  v.  Neely,  79  N.  Car.  478;  Linker  i;.  Benson,  67  N,  Car. 
mO;  Foulke  V.  Bond,  41  N.  J.  L.  527;  Stevens  v.  Wait,  112  III.  544; 
Ball  V.  Palmer,  81  111.  370;  Knowles  v.  Brown,  28  N.  W.  Rep.  (Iowa) 
409;  Burns  v.  Byrne,  45  Iowa  285;  Bath  v.  Valdez,  11  Pac.  Rep.  (Cal.) 
724;  Tully  v.  TuUy,  9  Pac.  Rep.  (Cal.)  841;  Unger  v.  Mooney,  03  Cal. 
686;  Millard  v.  McMullin,  68  N.  Y.  352;  Woollsey  v.  Morss,  19  Hun  (N. 
Y.  273;  Culver  v.  Rhodes,  86  N.  Y.  348;  Clymer  v.  Dawkins,  3  How. 
(U.  S.)  674;  McClung  v.  Rosa,  6  Wheat.   (U.  S.)   116;  Union,  etc.,  M. 

707 


§   498  TITLE  BY   ADVERSE  POSSESSION.  [PART    III. 

cestui  que  tmst  and  trustee  under  the  trust,®'  and  the  pos- 
session of  a  guardian,  and  of  the  mortgagor  and  mortgagee.** 
They  are  all  subordinate  to  the  holder  of  the  paramount  paper 
title.  So,  also,  where  one  has  held  possession  subordinate  to 
the  claims  of  another  to  some  superior  right  in  or  title  to  the 
land,  the  widow,  heir  or  devisee  of  the  person  having  such 
posses.sion  would  presumptively  receive  such  possession  in 
subordination  to  the  superior  right  or  title  in  the  other  per- 
son.®*   And  where  one  holds  over  after  the  termination  of  a 

Co.  t\  Taylor,  100  U.  S.  37;  Lapeyre  v.  Paul,  47  Mo.  590;  McQuiddy  v. 
Ware,  67  Mo.  74.    See  ante,  Sec.  186. 

83  Perry  on  Trusts,  Sees.  863,  864;  Janes  V.  Throckmorton,  57  Cal. 
368;  Hearst  V.  Pujol,  44  Cal.  235;  Oliver  v.  Piatt,  3  How.  (U.  S.)  333; 
Elmendorf  v.  Taylor,  10  Wheat.  (U.  S.)  152;  Chick  r.  Rollins,  44  Me. 
104;  Roberts  V.  Littlefield,  48  Me.  61;  Milner  v.  Hyland,  77  Ind.  458; 
Lewis  V.  Hawkins,  23  Wall.  (U.  S.)  119;  Seymour  v.  Treer,  8  Wall. 
(U.  S.)  202;  Prevost  V.  Gratz,  6  Wheat.  (U.  S.)  481;  Norris's  App. 
71  Pa.  St.  106;  Janes  v.  Throckmorton,  57  Cal.  368;  Catlion  v.  Decker, 
38  Conn.  362;  McCarthy  v.  McCarthy,  78  Ala.  546;  Edwards  v.  Uni- 
versity, 1  D.  &  B.  Eq.  (N.  Car.)  325;  s.  c.  30  Am.  Dec.  170;  Smith 
V.  King,  16  East  283;  Gaylord  V.  Respass,  92  N.  C.  553;  Saunders  V. 
Farmer,  62  N.  H.  572.  That  is,  the  cestui  que  trust  may  disseise  his 
trustee  and  divest  him  of  his  legal  estate,  if  the  intention  to  disseise 
is  manifest,  although  his  possession  is  usually  presumed  to  be  subject 
to  the  trust.  Whiting  V.  Whiting,  4  Gray  241.  It  has  been  held  that 
in  no  case  will  the  possession  of  the  trustee  be  deemed  to  be  adverse  to 
the  cestui  que  trust.  He  cannot  disseise  the  cestui  que  trust.  Zeller's 
Lessee  v.  Eckert,  4  How.  295;  Decouche  v.  Savetier,  3  Johns.  Ch.  216. 
But  see  COM  fro,  Schlessinger  V.  Mallard,  70  Cal.  326,  11  Pac.  728;  Hall 
V.  Ditto  (Ky.),  12  S.  W.  941.  But  a  disseisin  of  the  trustee  will 
work  a  disseisin  of  the  cestui  que  trust.  See  ante,  Sec.  337.  "Where 
a  trustee  and  his  heir  at  law  have  held  possession  of  land  for  20  years, 
a  grant  will  be  presumed."  Uzzell  V.  Horn  (S.  C.  1905),  51  S.  E.  Rep. 
253,  71  S.  C.  426. 

84  See  ante,  Sec.  247. 

85  0ury  r.  Saunders,  77  Texas  278,  138  S.  W.  1030;  Dean  v.  Tucker. 
58  Miss.  487;  Leonard  V.  Hart,  2  Atl.  Rep,  (N.  J.)  136;  Wilkerson  v. 
Thompson,  82  Mo.  317;  Elwell  v.  Hinckley,  138  Mass.  225;  Silva  V. 
Wimpenny,  136  Mass.  253;  Creekmur  v.  Creekmur,  75  Va.  431;  Whip- 
ple t".  Whipple,  109  111.  418;  Allen  v.  Allen,  58  Wis.  202;  Eddy  v.  St. 
Mars,  53  Vt.  462;  s.  c.  38  Am.  Rep  692;  Roebke  v.  Andrews,  26  Wis. 
311;  Woodward  V.  McReynolds,  2  Pin.    (Wis.)    268;  Bartlett  v.  Secor, 

708 


CH.   XXI.]  TITLE  BY  ADVERSE  POSSESSION.  §   499 

lawful  estate  he  is  tenant  at  sufferance,  and  does  not  by  such 
holding  over  disseise  the  reversioner.*®  The  continued  posses- 
sion of  the  defendant,  in  an  ejectment  or  equitable  action  for 
quieting  of  title,  after  decree  or  judgment  has  been  given 
for  the  plaintiff,  is  presumed  to  be  subordinate  to  the  right 
of  the  plaintiff  as  determined  by  the  court.*^  But  these  legal 
presumptions  in  the  different  cases  mentioned  are  all  dis- 
putable presumptions ;  and  although  it  has  been  held  that  ad- 
verse possession  cannot  be  acquired  by  one  co-tenant  against 
the  others,  yet  novir  it  is  the  universal  rule  that  in  any  of  the 
above  mentioned  cases  of  lawful  entry  the  lawful  and  subordi- 
nate holding  may  be  changed  to  a  hostile  and  adverse  posses- 
sion by  a  distinct  and  unequivocal  disavowal  of  the  owner's 
superior  title,  and  actual  notice  to  him  of  such  disclaimer. 
In  all  these  cases  the  disavowal  or  disclaimer  must  be  accom- 
panied and  established  by  visible  and  notorious  acts,  inconsist- 
ent with  the  ownership  of  the  supposed  disseisee,  such  as  a 
refusal  to  recognize  the  claim  to  the  profits,  or  a  share  there- 
in.** 

§  499.  Disseisor's  power  to  alien. —  It  is  generally  accepted, 
that  mere  naked  possession  will  be  sufficient  to  enable  the  one 
in  possession  to  make  a  deed  of  conveyance  with  or  without 
covenants  of  warranty,  and  the  grantee  would  thereby  acquire 

56  Wis.  520;  Plimpton  V.  Converse,  44  Vt.  158;  Morrill  v.  Titcomb,  8 
Allen  (Mass.)  100;  Sherman  v.  Kane,  86  N.  Y.  57;  Alexander  v. 
Wheeler,  69  Ala,  332;  Collins  V.  Johnson,  57  Ala.  304;  Davenport  V. 
Ledring,  52  Iowa  365.  Compare  Heiskell  v.  Cobb,  11  Heisk.  (Tenn.) 
638;  Ford  V.  Holmes,  61  Ga.  419. 

88  See  ante,  Sec.  171. 

8T  Woolworth  V.  Root,  40  Fed,  Rep.  723.  But  see  Bath  v.  Valdez,  70 
Cal.  350,  11  Pac.  Rep.  724.  As  to  want  of  presumptions  of  law  that 
real  estate  is  held  adversely,  see  Monk  f.  Wilmington  (N.  C.  1904),  49 
S.  E.  Rep.  345. 

88Lafavour  v.  Homan,  3  Allen  355;  Roberts  v.  Morgan,  30  Vt.  319; 
Holley  V.  Hawley,  39  Vt.  534;  Jackson  V.  Moore,  13  Johns.  510;  Ripley 
V.  Bates,  110  Mass.  162;  Watson  v.  Sutro  (Cal.),  24  Pac.  Rep.  172; 
Mitchell  r.  Campbell  (Oreg.),  24  Pac.  Rep.  455,  vendee  in  possession; 
Woolworth  V.  Root,  40  Fed.  723.     See  ante,  Sees.  171,  186,  247. 

709 


§   500  TITLE  BY   ADVERSE  POSSESSION.  [PART     III. 

a  good  title  which  can  only  be  defeated  by  the  true  owner. 
So  much  the  more  certain  is  it  that,  where  such  possession 
amounts  to  a  disseisin,  and  the  intruder  has  therefore  gained 
a  title  even  against  the  real  owner,  the  disseisor  has  sufficient 
seisin  to  convey  the  estate.*®  In  fact,  according  to  the  com- 
mon law,  he  alone  had  the  power  to  make  a  conveyance.  The 
disseisee  had  nothing  but  a  chose  in  action,  which  was  not  as- 
signable,®* The  estate  also  descends  to  the  disseisor's  heirs, 
and  at  common  law  the  descent  cast  in  such  a  case  vested  in 
the  heir  so  complete  a  title  that  the  right  of  entry  was  taken 
away,  and  the  estate  could  only  be  defeated  by  an  action  for 
recovery  of  the  possession.®^ 

§  500.  Betterments. —  At  common  law  if  a  bona  fide  holder 
of  a  defeasible  title  made  improvements,  while  he  was  in  pos- 
session of  the  land,  he  could  not  claim  compensation  for  them 
from  the  rightful  owner.  The  improvements  became  a  part 
of  the  realty,  since  they  were  attached  without  the  consent  of 
the  lawful  owner.  Nor  could  a  bona  fide  disseisor  claim  the 
right  to  remove  them.®^  But  where  the  real  owner  in  his 
ejectment  suit  asked  for  judgment  for  mesne  profits,  the  bona 
fide  disseisor  could  off-set  the  same  by  his  claim  for  his  im- 
provements.®^ Statutes,  however,  have  been  passed  in  some 
of  the  States  enabling  the  disseisor  to  bring  an  original  action 
for  improvements.®* 

8»  Currier  v.  Gale,  9  Allen  525 ;  Slater  v.  Rawson,  6  Mete.  439 ;  Hub- 
bard V.  Little,  9  Cush.  475 ;  Overfield  v.  Christie,  7  Serg.  &  R.  173.  See 
Christy  v.  Alford,  17  How.  601;  Haynes  V.  Boardman,  119  Mass.  414; 
Alexander  v.  Stewart,  50  Vt.  87. 

90  See  post.  Sec.  559. 

913  Washburn  on  Real  Prop.  150;  Co.  Lit.  238  a;  Smith  v.  Burtis,  6 
Johns.  217. 

92  Powell  V.  M.  &  B.  Mfg.  Co.,  3  Mason  369;  2  Kent's  Cora.  334-338; 
West  V.  Stewart,  7  Pa.  St.  122;  ante,  Sec.  2. 

93  Murray  v.  Gouverneur,  2  Johns.  438;  Jackson  v.  Loomis,  4  Cow. 
168;  Green  v.  Biddle,  8  Wheat.  181. 

94  3  Para,  on  Con.  221;  Cooley  on  Torts  433;  2  Kent's  Com.  335.  See 
Bright  V.  Boyd,  1  Story  494;  Lamar  v.  Minter,  13  Ala.  31;  Fisher  v. 
Edington,  12  Lea  189. 

710 


CH.    XXI.]  TITLE   BY   ADVERSE   POSSESSION.  §    501 

§  501.  Title  by  adverse  possession  —  How  defeated. —  The 
title  which  is  acquired  by  adverse  possession  or  by  disseisin 
is  not  an  absolute  title.  It  may  be  defeated  by  the  rightful 
owner.  Disseisin  leaves  in  the  owner  only  a  chose  in  action, 
for  the  vindication  of  which  are  provided  two  principal  reme- 
dies. One  is  the  right  of  entry  without  the  aid  of  the  courts, 
and  the  other  is  the  recovery  of  the  possession  by  the  judgment 
of  the  court.  A  mere  re-entry  upon  the  land  by  the  disseisee 
or  by  his  authorized  agent,  with  the  intention  to  recover  the 
seisin,  is  sufficient  to  regain  the  seisin,  even  though  the  dis- 
seisor is  not  actually  expelled,  since  the  joint-possession  by 
them  destroys  the  element  of  the  exclusiveness,  necessary  to 
disseisin.®'  And  although  a  casual  entry  without  an  intention 
to  regain  the  seisin,  is  not  sufficient  for  this  purpose,  it  is  not 
necessary  for  the  disseisee  to  make  any  express  declaration  of 
his  intention  to  the  disseisor,®*  So  also  does  an  abadnonment 
of  the  possession  by  the  disseisor  revest  the  seisin  in  the  rightful 
owner,®^  Of  course  the  seisin  so  gained  may  be  again  lost  by 
an  ouster,  and  such  an  ouster  is  a  redisseisin."*  The  exact 
form  of  action,  where  the  aid  of  a  court  is  called  into  requisi- 
tion, depends  upon  the  local  laws  and  practice.  The  usual 
remedy  is  the  common  law  action  of  ejectment. 

»5  "  Where  the  holder  of  the  legal  title  to  land  enters  on  the  same 
under  a  claim  of  right,  and  holds  possession  even  jointly  with  another, 
it  is  an  interruption  of  the  continuous  adverse  possession  of  the  other." 
Chastang  V.  Chastang  (Ala,  1904),  37  So,  Rep.  799.  "An  acknowledg- 
ment by  adverse  claimant  of  the  owner's  title  before  the  statute  has 
run  in  his  favor  breaks  the  continuity  of  his  adverse  possession,  and 
it  cannot  be  tacked  to  any  subsequent  possession."  Olson  t".  Burk 
(Minn.  J905),  103  N,  W.  Rep.  335, 

ooPeabody  v.  Hewett,  52  Me.  46;  Brickett  v.  Spofford,  14  Gray  514; 
Burrows  V.  Gallup,  32  Con.  499;  O'Hara  v.  Richardson,  40  Pa.  St.  390. 

»T  Melvin  V.  Proprs.,  etc.,  5  Mete.  15 ;  Sawyer  v.  Kendall,  10  Cush, 
241;  Potts  V.  Gilbert,  3  Wash,  C.  Ct.  475;  Cleveland  i;.  Jones,  3  Strobh. 
479  n.  Unless  there  are  two  joint  disseisors,  when  the  abandonment  by 
one  would  only  make  the  other  disseisor  sole  seised.  Allen  v.  Holton, 
20  Pick.  458. 

•8  3  Washburn  on  Real  Prop.  130. 

711 


§   502  TITLiE  BY  ADVERSE  POSSESSION.  [PART    III. 

§  602.  Title  by  advene  possession  —  How  made  absolute. — 
Inasmuch  as  disseisin  leaves  only  a  ciiose  in  action  in  the  dis- 
seisee, and  the  disseisor  acquires  thereby  a  title  good  and  per- 
fect against  all  the  world  except  the  true  owner;  if,  for  any 
reason,  the  law  takes  away  the  right  of  action,  the  title  will 
become  absolute  in  the  disseisor.®*  The  remedies  for  the  re- 
covery of  real  property  may  be  barred  by  one  of  two  causes, 
first,  by  the  lapse  of  time  under  the  Statute  of  Limitations, 
and  secondly,  by  estoppel.  These  will  constitute  the  subjects 
of  the  two  following  sections. 

9»  "  Adverse  possession  of  land  for  the  statutory  period  not  only  bars 
an  action  to  recover  the  same,  but  also  confers  title  to  the  land." 
Franklin  v.  Cunningham  (Mo.  1905),  86  S.  W.  Rep.  79.  For  effect 
upon  title  of  mineral  owner,  by  adverse  possession  of  the  surface  of 
the  land  and  vice  versa,  where  the  titles  have  been  separated,  see  White, 
Mines  &  Min.  Rem.,  Sec.  436.  See,  also,  Brady  v.  Brady  (N.  Y.  1903), 
84  N.  Y.  S.  1119.  Where  the  minerals  in  land  are  reserved  in  a  deed, 
the  occupancy  of  the  surface  of  the  land  by  the  grantee  thereof  is  not 
adverse  as  to  the  underlying  minerals.  Manning  v.  Kansas  &  T.  Coal 
Co.  (Mo.  1904),  81  S.  W.  Rep.  140.  One  who  secretly  enters  on  coal 
through  an  opening  in  land  other  than  that  in  which  the  coal  is  sit- 
uated cannot  obtain  title  to  the  coal  by  adverse  possession,  even  by 
continuous  mining.  Pierce  v.  Barney  (Pa.  1904),  58  Atl.  Rep.  152, 
209  Pa.  132. 
712 


SECTION  IV. 

STATUTE  OP  LIMITATIONS. 

Section  503.  What  the  statute  enacts. 

504.  Adverse  possession  —  Continuous  and  uninterrupted. 

505.  Against  whom  the  statute  runs. 

506.  How  and  when  statute  operates. 
607.  Effect  of  the  statute. 

§  503.  What  the  statute  enacts. —  In  general,  every  Statute 
of  Limitations  enacts  that  no  action  for  the  recovery  of  real 
property  can  be  maintained,  and  no  such  right  of  entry,  if 
any  exists,  can  be  exercised,  unless  instituted  within  the 
period  of  time  limited  by  the  statute,  after  the  right  has 
accrued.  The  first  statute  for  the  limitation  of  real  actions 
was  passed  in  32  Hen.  VIII,  ch.  2,  and  a  more  general  one  in 
21  Jac.  I.*  But  the  limitation  of  actions  is  governed  by  the 
lex  fori,^  and  as  each  State  in  the  American  Union  has  its 
own  Statute  of  Limitations,  varying  widely  in  detail,  the 
limits  of  this  book  will  only  permit  of  a  discussion  of  the 
general  effect  of  such  statutes,  referring  the  student  to 
the  different  statutes  for  the  details.  The  statute,  21 
'Jac.  I,  placed  the  limitation  of  actions  for  the  recovery  of 
real  property  at  twenty  years  from  the  time  the  right  of 
action  accrued,  and  this  period  has  been  more  or  less  adopted 
in  this  country,  although  in  a  number  of  States  the  period  has 
been  reduced  to  ten  years,  while  in  others  a  different  period 
has  been  established.^ 

*  Ang.  on  Lira.  1-6. 

zAng.  on  Lim.  65.  Statutes  of  limitations,  so  called,  affect  the  rem- 
edy, but  not  the  right  of  action.  Necessarily,  therefore,  the  lex  fori 
must  control  in  all  matters  of  procedure.  Van  Schuy>-er  v.  Hartman 
(Alaska  1902),  1  Alaska  431. 

sin  Montana,  it  is  three  years.     Dunphy  v.  Sullivan,  117  U.  S.  346. 

713 


§  504  STATUTE  OF  LIMITATIONS.        [PART  III. 

§  504.  Adverse  possession  —  Continuous  and  uninterrupted. 
—  But  in  all  of  the  States  the  person  who  claims  the  benefit 
of  the  statute,  together  with  his  privies,  must  have  held  ad- 
verse possession  for  the  entire  period  of  limitation.  That  is, 
there  must  not  only  have  been  an  actual  and  complete  dis- 
seisin, as  explained  in  the  preceding  section,  but  such  disseisin 
must  be  continued  and  uninterrupted  during  the  statutory 
period.  Any  discontinuance  or  abandonment  of  the  posses- 
sion will  prevent  the  statute  from  operating.*  Any  yielding 
of  possession  to  the  claim  of  the  owner,  or  abandonment  of 

See  generally  Detweiler  t?.  Schultheis,  122  Ind.  155,  23  N.  E.  Rep.  709 ; 
Louvall  r.  Gridley,  70  Cal.  507,  11  Pac.  Rep.  777;  Charles  v.  Morrow, 
9!)  Mo.  638,  12  S.  W.  Rep.  903;  Norris  v.  Moody,  84  Cal.  143,  24  Pac. 
Rep.  37.  "  As  a  general  rule,  statutes  of  limitations  will  not  be  given 
a  retroactive  effect,  unless  it  clearly  appears  that  the  Legislature  so 
intended."  Curtis  v.  Boquillas  Land  &  Cattle  Co.  (Ariz.  1904),  76  Pac. 
Rep.  612.  Statutes  of  limitations  may  be  retrospective  in  nature, 
provided  they  do  not  impair  contracts  or  disturb  vested  rights.  Edel- 
stein  V.  Carlisle  (Colo.  1904),  78  Pac.  Rep.  680. 

4Doswell  V.  Be  La  Lanza,  20  How.  32;  Thomas  v.  Marshfield,  13 
Pick.  250;  McAninch  v.  Smith,  19  Mo.  App.  240;  Stewart  v.  Duffy,  116 
111.  47;  Creekmur  V.  Creekmur,  75  Va.  430;  Bell  V.  Denison,  56  Ala. 
444;  Beard  v.  Ryan,  78  Ala.  37;  Laramore  v.  Minish,  43  Ga.  282; 
Morse  V.  Williams,  62  Me.  445;  Soule  v.  Barlow,  49  Vt.  329;  Bliss 
17.  Johnson,  94  N.  Y.  235;  Wheeler  V.  Spinola,  54  N.  Y.  377;  Mc- 
MuUin  V.  Erwin,  58  Ga.  427;  Bracken  v.  Jones,  63  Texas  184;  Sparrow 
V.  Hovey,  44  Mich.  65;  linger  v.  Mooney,  63  Cal.  586;  s.  c,  77  Am. 
Rep.  100;  Williams  V.  Wallace,  78  N.  Car.  354;  Malloy  v.  Bruden,  86 
N.  Car.  251;  Ruffin  V.  Overly,  105  N.  C.  78,  11  S.  E.  Rep.  251;  Wren 
V.  Parker,  57  Conn.  529,  18  Atl.  Rep.  790;  Warren  v.  Fredericks,  76 
Tex.  647,  13  S.  W.  Rep.  643;  Morris  v.  McClary,  43  Minn.  346,  46  N. 
W.  Rep.  238;  Louisville  &  M.  R.  R.  Co.  v.  Philyan,  88  Ala.  264,  6  So. 
Rep.  837;  Garlington  V.  Copeland  (S.  C),  10  S.  E.  Rep.  616;  Deans  V. 
Wilcoxen  (Fla.),  7  So.  Rep.  163;  Hicklin  v.  McClear,  18  Oreg.  126,  22 
Pac.  Rep.  1057.  "  Adverse  possession,  to  be  sufficient  to  defeat  the  title 
of  the  real  owner,  must  be  hostile,  actual,  visible,  notorious,  exclusive, 
continuous  and  under  a  claim  of  "title."  Roby  v.  Calumet  &  Co.  Canal  & 
Dock  Co.  (111.  1904),  71  N.  E.  Rep.  822,  211  111.  173.  "Notice  of 
claim  of  adverse  possession  by  grantor  remaining  in  possession  may  be 
brought  home  to  his  grantee  by  acts  so  open,  notorious,  and  hostile 
as  to  show  adverse  claim."  Kelly  v.  Palmer  (Minn.  1903),  91  N.  W. 
Rep.  578. 

714 


CH.    XXI.]  STATUTE   OF   LIMITATIONS.  §    504 

actual  possession,  although  with  no  intention  to  give  up  his 
claim  of  adverse  possession ;  or,  if  at  any  time  during  the 
statutory  period  the  rightful  owner  could  not  find  an  actual 
occupant  against  whom  to  bring  his  action  of  ejectment ;  ^  any 
of  these  acts  or  incidents  will  constitute  such  a  discontinuance 
of  the  disseisin  or  adverse  possession  as  will  prevent  the 
operation  of  the  statute.®  There  must,  however,  be  a  success- 
ful interruption  of  the  adverse  possession.  An  ineffectual 
protest  against  the  adverse  use  or  possession  will  not  break  its 
continuity.^  And  so,  likewise,  is  there  no  interruption  of 
the  adverse  possession  where  there  have  been  only  occasional 
acts  of  trespass  with  no  apparent  intention  to  assert  and 
exercise  the  right  of  possession,*  or  where  there  is  merely  a 
temporary  non-user,  without  any  pressure  from  the  disseisee.' 
So,  also,  where  the  disseisor  has  held  possession  without  color 
of  title  for  some  time  and  then  took  a  deed  from  one  whom 
he  supposed  to  be  the  owner,  there  is  no  discontinuance  or 
change  of  his  original  adverse  possession,  and  he  can  claim 

8  But  it  must  be  something  more  than  mere  temporary  occupation 
of  the  building.  Stettnische  v.  Lamb,  18  Neb.  619;  Stettnische  v.  Lamb, 
26  N.  W.  Rep.  (Neb.)  374;  De  la  Vega  v.  Butler,  47  Tex.  529;  Harper 
V.  Tapley,  35  Miss.  506 ;  Costello  v.  Edson,  44  Minn.  135,  46  N.  W.  Rep. 
299;  Thompson  v  Kauffelt,  110  Pa.  St.  209,  1  Atl.  Rep.  267;  Van 
Schuler  v.  Hartman   (1902),  1  Alaska  431. 

8  Pederick  v.  Searle,  5  Serg.  &  R.  240 ;  Den  v.  Mulford,  Hayw.  320 ; 
Webb  V.  Richardson,  42  Vt.  465;  San  Francisco  v.  Fulde,  37  Cal.  349; 
Ruffin  V.  Overly,  105  N.  C.  78,  11  S.  E.  Rep.  251;  Bliss  t?.  Johnson,  94 
N,  Y.  235;  Sherman  v.  Kane,  86  N.  Y.  56;  Steeple  v.  Downing,  60  Ind. 
478;  Crispin  v.  Hannavan,  50  Mo.  536;  Malloy  v.  Bruden,  86  N.  Car. 
261;  Virgin  r.  Land,  32  Ga.  572;  Armstrong  v.  Merrill,  14  Wall.  (U. 
S.)  120;  Susquehanna,  etc.,  R.  Co.  V.  Quick,  68  Pa.  189;  Griffith  v. 
Schwenderman,  27  Mo.  412. 

T  Jordan  v.  Lang,  22  S.  C,  159.  See  Clark  v.  White  (Ga.  1904),  48 
S.  E.  Rep.  357. 

sDuren  v.  Sinclair,  22  S.  C.  361;  Bell  v.  Denson,  56  Ala.  444.  See 
Doe  V.  Eslava,  11  Ala.  1028;  Raynor  v.  Lee,  20  Mich,  384.  Compare 
Walley  v.  Small,  29  Iowa  288;  Hoffman  v.  White  (Ala),  7  So.  Rep. 
816. 

BHesperia  Land,  etc.,  Co.  v.  Rogers,  83  Cal.  10,  23  Pac.  Rep.  196; 
Jones  V.  Gaddis  (Miss.),  7  So.  Rep.  489. 

715 


§  504  STATUTE  OP  LIMITATIONS.       [PART  III. 

against  the  real  owner  a  continuous  adverse  possession  for  the 
entire  time  of  his  possession  before  and  after  receiving  the 
deed  of  conveyance." 

But  it  need  not  be  a  continuous  adverse  possession  in  the 
one  person.  The  title  by  disseisin  may  be  assigned,  and  it 
descends  to  the  disseisor's  heirs.  If,  therefore,  two  or  three 
disseisors  hold  the  land  successively  and  in  privity  with  each 
other,  whether  by  purchase  or  by  descent,  and  their  several 
periods  of  holding  make  up  the  requisite  statutory  period, 
the  owner  will  be  just  as  effectually  barred  as  if  the  land  had 
been  held  by  one  person  during  the  entire  time.^^  If,  however, 
the  first  disseisor  held  possession  without  color  of  title  and 
his  deed  of  conveyance  purported  to  convey  a  larger  tract 
of  land  than  he  had  had  in  his  actual  possession,  he  con- 
veyed to  his  grantee  a  title  by  adverse  possession  to  only 
that  part  of  the  land  of  which  he  had  actual  possession.  And 
the  grantee's  adverse  constructive  possession  of  the  remainder 
of  the  land  covered  by  the  description  in  the  deed,  began  with 

10  Sanders  v.  Logue,  88  Tenn.  355,  12  S.  W.  722;  Brown  v.  Brown, 
106  N.  C.  451,  11  S.  E.  Rep.  647;  Jones  V.  Gaddis  (Miss.),  7  So.  Rep. 
489.     But  see  Hods  v.  Tiernan   (Pa.  1904),  25  Pa.  Sup.  Ct.  14. 

11  Melvin  v.  Proprietors,  etc.,  5  Mete.  15 ;  Sawyer  v.  Kendall,  10 
Cush.  241;  Alexander  V.  Pendleton,  8  Cranch  462;  Doe  V.  Campbell, 
10  Johns.  477;  Jackson  v.  Leonard,  9  Cow.  653;  Doe  v.  Barnard,  13 
Q.  B.  945;  Outcalt  v.  Ludlow,  32  N.  J.  239;  Clock  v.  Gilbert,  39  Conn. 
94;  Coogler  V.  Rogers  (Fla.),  7  So.  Rep.  391;  Faloon  v.  Sinshauser, 
130  111.  647,  649,  22  N.  E.  Rep.  835;  Riggs  V.  Girard  (111.),  24  N.  E. 
Rep.  1031.  But  the  possession  of  the  tenants  of  dower  or  curtesy  can- 
not be  tacked  on  to  the  possession  of  the  husband  or  wife,  respectively, 
in  order  to  make  up  the  statutory  period  of  adverse  possession.  Doe  v. 
Wing,  6  C.  &  P.  538,  and  cases  cited  supra.  See,  generally,  in  support 
of  the  text,  JeflFersonville,  etc.,  R.  Co.  v.  Oyler,  82  Ind.  394;  Ham- 
mond t'.  Crosby,  68  Ga.  767;  Brownson  V.  Scanlan,  59  Texas  222;  Fur- 
long V.  Garrett,  44  Wis.  Ill;  McNeely  v.  Langdan,  22  Ohio  St.  32;  Mc- 
Entire  r.  Brown,  28  Ind.  347;  Hanson  V.  Johnson,  62  Md.  25;  s.  c.  50 
Am.  Rep.  199;  Riggs  V.  Fuller,  54  Ala.  141;  San  Francisco  f.  Fulde, 
37  Cal.  349;  Shuffleton  v.  Nelson,  2  Sawy.  (U.  S.)  540;  Lea  r.  Polk 
County,  21  How.  (U.  S.)  493;  Doswell  v.  De  Lanza,  20  How.  (U.  S.) 
29.  See  Jackson  v.  Snodgrass  (Ala.  1904),  37  So.  Rep.  246;  Jones  r. 
Herrick    (Wash.  1904),  77  Pac.  Rep.  798. 

716 


CH.    XXI.]  STATUTE   OF   LIMITATIONS.  §    505 

his  entry  in  possession  of  the  land  under  color  of  title.^-  This 
rule  has  been  sustained  and  applied  where  the  successive 
holders,  although  claiming  under  each  other,  have  not  acquired 
title  by  any  deed  or  instrument  in  writing,  but  merely  by 
parol  contract.^^  But  there  must  be  privity  of  estate  between 
the  successive  disseisors,  in  order  that  their  several  holdings 
may  be  tacked  together  to  produce  a  continuity  of  adverse 
possession.^*  And  it  has  been  held  that  an  involuntary  sale, 
as  by  a  sheriff  in  execution  of  a  judgment,  would  not  create 
the  necessary  privity.^''  But  in  some  of  the  States  the  entire 
doctrine  is  repudiated,  and  a  continuous  holding  by  one 
person  or  his  heirs  for  his  statutory  period  is  required  to  raise 
a  bar  to  the  action  by  the  owner  for  the  recovery  of  his  land.^" 

§  505.  Against  whom  the  statute  mns. —  The  statute  runs 
against  the  rightful  owner,  and  all  other  persons  standing  in 
privity  with  him.     But  the  statute  only  bars  the  actions  when 

12  Barks  v.  Mitchell,  78  Ala.  161. 

13  Smith  V.  Chapin,  31  Conn.  530;  Mimms  V.  Ewing,  15  Lea  667; 
Brown  v.  Brown,  106  N.  C.  451,  11  S.  E.  Rep.  647;  Faloon  V.  Sims- 
hauser,  130  111.  649;  22  N.  E.  Rep.  835;  Kendrick  v.  Latham  (Fla.),  6 
So.  Rep.  871.  See  Robinson  v.  Downing  Co.  (Ga.  1904),  48  S.  E.  Rep. 
429. 

"Austin  V.  Rutland  R.  R.,  45  Vt.  215;  San  Francisco  v.  Fulde,  37 
Cal.  349;  Shuffleton  v.  Nelson,  2  Sawyer  540;  Simpson  v.  Downing,  23 
Wend.  316;  Locke  V.  Whitney,  63  N,  H.  597;  Louisville  &  N.  R.  Co.  v. 
Philyaw,  88  Ala.  264,  6  So.  37;  Sawyer  v.  Kendall,  10  Gush.  (Mass.) 
241;  Cahill  v.  Palmer,  44  N.  Y.  478.  And  see  Fanning  v.  Wilcox,  3 
Day  258 ;  McCoy  v.  Dickinson  College,  5  Serg.  &  R.  254 ;  Clark  v.  White 
(Ga.  1904),  48  S.  E.  Rep,  357.  "A  claim  of  title  by  adverse  possession 
exercised  by  another  is  of  no  avail  where  the  chain  of  title  does  not 
connect  the  claimant  with  the  one  exercising  the  possession."  64  N.'  J. 
Eq.  147,  affirmed.     Murray  v.  Pannaci  (N.  J.  1904)  57  Atl.  Rep.  1132. 

16 Kendrick  v.  Latham   (Fla,),  6  So.  Rep.  871. 

i«  3  Washburn  on  Real  Prop.  147 ;  King  v.  Smith,  Rice  10.  This  the- 
ory has  lately  been  confirmed  by  the  Supreme  Court  of  South  Carolina. 
Ellen  V.  Ellen,  16  S.  C.  132;  Condon  v.  Morgan,  14  S.  Car.  587.  "To 
make  up  the  statutory  period  of  adverse  possession,  the  possession  of 
an  heir  may  be  tacked  to  that  of  his  ancestor."  Kilgore  v.  Kirkland 
(8.  C.  1904),  48  S.  E.  Rep.  44. 

717 


§  505  STATUTE  OP  LIMITATIONS.        [PART  III. 

the  statutory  period  has  elapsed  after  the  time  when  the  right 
of  action  accrued.  The  statute,  therefore,  does  not  begin  to 
run  against  a  person  until  he  has  a  right  to  bring  the  action." 
Where  the  tenant  of  a  particular  estate  is  disseised  and  is 
barred  by  the  statute,  since  the  reversioner  is  not  entitled  to 
possession  until  the  termination  of  the  particular  estate,  the 
statute  will  not  affect  his  right  of  action  during  the  continu- 
ance of  the  particular  estate.^®  The  disseisor  acquires  an 
absolute  title  only  to  the  tenant's  estate;  the  reversioner  is 
only  disseised  from  the  time  when  the  tenant's  estate  is  at  an 
end,  and  the  reversioner  has  a  right  to  recover  the  possession.^® 
But  the  heir  is  disseised  immediately,  and  the  statute  runs 
against  him  at  once,  where  the  widow  undertakes  to  convey 
lands  in  fee,  which  had  not  been  assigned  to  her  as  dower.^" 
And  so,  likewise,  at  common  law,  the  disseisin  of  the  mort- 
gagor is  an  immediate  disseisin  of  the  mortgagee,  and  ince 

"See  Radcliffe  v.  Scruggs,  96;  Skinner  v.  Williams,  85  Mo.  489; 
Mason  v.  Crowder,  86  Mo.  261;  Wallace  v.  Presb.  Church,  111  Pa. 
St.  164;  Wilhoit  v.  Tubbs,  83  Cal.  279,  23  Pac.  Rep.  386;  Miller  l'. 
Texas,  etc.,  Ry.  Co.,  132  U.  S.  662;  Smith  v.  Exchange  Bank,  110  Pa. 
St.  508,  1  Atl.  Rep.  160;  Tennessee,  etc.,  R.  R.  Co.  v.  Mabry,  85  Tenn. 
47,  1  S.  W.  Rep.  511;  Strabala  v.  Lewis  (Iowa),  45  N,  W.  Rep.  881; 
Miller  v.  Foster,  76  Texas  479,  13  S.  W.  529;  Chase  v.  Cartwright 
(Ark.),  14  S.  W.  Rep.  90.  "Limitation  cannot  begin  to  run  against 
an  action  of  ejectment  in  a  federal  court  prior  to  the  time  when  the 
patent  for  the  land  under  which  plaintiff  claims  was  issued  by  the 
United  States."  Tegarden  f.  Le  Marchel  (U.  S.  C.  C,  Ark.  1904),  129 
Fed.  Rep.  487. 

18  Potter  V.  Kimball  (Mass.  1904),  71  N.  E.  Rep.  308.  "The  posses- 
sion of  a  life  tenant,  however  long  or  continuous,  is  not  adverse  to  the 
remainderman."  Morrison  V.  Fletcher  (Ky.  1905),  84  S.  W.  Rep.  548, 
27  Ky.  Law  Rep.  124. 

•9  Devyr  v.  Schaefer,  55  N.  Y.  451;  Jackson  v.  Schoonmaker,  4  Johns. 
390;  Miller  v.  Ewing,  6  Cush.  34;  Gernet  V.  Lynn,  81  Pa.  St.  94; 
Pinckney  v.  Burrage,  30  N.  J.  L.  21;  Miller  i:  Foster,  76  Texas  479, 
13  S.  W.  Rep.  529;  Dupon  v.  Walden,  84  Ga.  690,  11  S.  E.  Rep.  451. 
"  The  possession  of  the  grantee  of  a  life  tenant  does  not  become  ad- 
verse to  the  remainderman  until  the  life  tenant's  death,  no  cause  of 
action  for  possession  accruing  to  the  latter  till  then."  Beatty  v.  Cly- 
mer   (Tex.  Civ.  App.  1903),  75  S.  W.  Rep.  540. 

20  Smith  V.  Shaw,  150  Mass.  297,  22  N.  E.  Rep.  924. 
718 


CH.    XXI.]  STATUTE   OF   LIMITATIONS.  §    505 

versa,^^  the  reason  being  that  at  common  law  both  mortgagor 
and  mortgagee,  or  either  of  them,  can  bring  the  necessary 
possessory  action  for  the  recovery  of  the  land  from  the  posses- 
sion of  the  disseisor.  But  where  the  mortgagee's  right  to 
the  possession  before  default  is  taken  away,  his  right  of  action 
does  not  accrue  untU  default  in  payment,  and  hence  in  case 
of  disseisin  of  the  mortgagor  before  default,  the  Statute  of 
Limitations  would  not  begin  to  run  against  the  mortgagee, 
until  there  has  been  a  default,** 

In  addition  to  this  restriction  upon  the  operation  of  the 
statute,  the  statutes  generally  contain  a  saving  clause,  prevent- 
ing the  statute  from  running  against  certain  persons  who  are 
under  disabilities.*'  Although  there  may  be  a  different  rule 
prevailing  in  one  or  two  of  the  States,  in  order  that  the  dis- 
ability, such  as  coverture  or  infancy,  etc.,  may  prevent  the 
operation  of  the  statute,  it  must  have  existed  at  the  time  that 
the  statute  began  to  run.  If  it  arises  subsequently  it  can  have 
no  effect;  a  succession  of  disabilities  is  not  permitted  to 
prevent  the  operation  of  the  statute  beyond  the  time  of  sus- 
pension from  the  first  disability.**  It  will  not  stay  the  opera- 
tion of  the  statute.  And  this  rule  governs  whether  the  dis- 
ability arises  subsequently  through  the  acts  of  the  parties,  as 
in  the  case  of  a  subsequent  marriage  of  a  feme  sole,^^  or  it 
occurs  through  the  force  of  natural  causes,  such  as  subse- 
quent insanity,  or  where  the  disseisee  dies,  and  his  title 
descends  to  an  infant  heir.**    It  is  usual,  however,  in  the 

21  Poignard  v.  Smith,  8  Pick.  272 ;  Dadmun  v.  Lamson,  9  Allen  85. 

22  See  Schiefferstein  v.  Allison,  24  111.  App.  294;  s.  c.  123  111.  623, 
15  N.  E.  Rep.  275;  Houston  v.  Workman,  28  111.  App.  626.  See  Tins- 
ley  V.  Lombard   (Or.   1904),  78  Pac.  Rep.  895. 

28  "  The  statute  of  limitations  does  not  run  against  an  infant."  Gib- 
son V.  Gibson   (Ky.  1904),  77  S.  W.  Rep.  928. 

2*  Mercer's  Lessee  v.  Selden,  1  How.  37;  Cotterell  v.  Dutton,  4  Taunt. 
820;  Edso  17.  Munsell,  10  Allen  557;  Miller  v.  Texas,  etc.,  R.  R.  Co.,  132 
U.  S.  662. 

28  Thorpe  v.  Raymond,  16  How.  247;  Carrier  v.  Gale,  3  Allen  328; 
Hall  V.  Ditto    (Ky.),  12  S.  W.  Rep.  941. 

2«Alli3   V.   Moore,  2   Allen   306;    Fleming  v.  Griswold,   3    Hill   85; 

719 


§  507  STATUTE  OP  LIMITATIONS.        [PAET  HI. 

ease  of  descent  to  infant  heirs,  to  provide  that  the  time  of 
limitation  shall  be  prolonged,  so  that  the  actions  will  not  be 
barred  until  the  lapse  of  a  stated  period  after  arrival  at 
majority.  It  is  also  the  general  rule,  in  the  absence  of  an 
express  statutory  provision,  that  the  Statute  of  Limitations 
will  not  run  against  the  State  or  United  States.  Nullum 
tempus  occurrit  regi." 

§  506.  How  and  when  statnte  operates. —  The  statute  not 
only  protects  the  title  acquired  by  adverse  possession,  when  it 
is  assailed  by  plaintiff  in  an  action  of  ejectment,  but  it  may 
also  be  relied  upon  to  vindicate  his  right  to  possession,  where 
he  has  been  ousted  and  he  is  forced  to  his  action  to  recover 
possession.  The  statute  not  only  bars  the  action,  but  it  takes 
away  the  disseisee's  former  right  to  regain  seisin  by  an  entry. 
Any  entry,  therefore,  which  he  may  make  after  the  lapse  of 
the  period  of  limitation,  is  a  disseisin  and  does  not  re-invest 
him  with  the  lawful  seisin.  The  statute,  therefore,  may  be  - 
set  up  by  a  plaintiff  in  ejectment  in  support  of  his  title,  even 
against  one  who  has  a  clear  paper  title.^^  And  it  has  also  been 
held,  where  ejectment  is  brought  by  disseisee,  and  the  disseisor 
with  possession  for  the  statutory  period  suffers  judgment  by 
default,  he  may  set  up  the  statute  in  a  subsequent  action  of 
ejectment,  in  which  he  is  plaintiff.^" 

§  507.  Effect  of  the  statnte. —  All  the  earlier  authorities 
held  that  the  only  effect  of  the  Statute  of  Limitations  was  to 
bar  the  remedy,  and  that  it  did  not  affect  the  substantive 

Becker  v.  Van  Valkenburg,  29  Barb.  324;   Lincoln  v.  Purcell,  2  Head 
143;  Burdette  v.  May,  100  Mo.  13,  12  S.  W.  Rep.  1056. 

27  Lindsey  v.  Miller,  2  Pet.  660 ;  Burgess  v.  Gray,  16  How.  48 ;  Oak- 
smith  V.  Johnston,  92  U.  S.  343;  Gardiner  v.  Miller,  47  Cal.  570.  "No 
title  by  adverse  possession  can  be  acquired  against  the  State  or  United 
States,  nor  is  land  the  subject  of  adverse  possession  where  the  title  is 
in  the  State."     Topping  v.  Cohn   (Neb.  1904),  99  N.  W.  Rep.  372. 

28Ang.  on  Lim.,  Sees.  380,  381;  Hughes  v.  Graves,  39  Vt.  365; 
Phillips  r.  Kent,  23  N.  J.  L.  155 ;  Parker  v.  Metzger,  12  Oreg.  407. 

29  Jackson  v.  Diffendorff,  3  Johns.  269. 
720 


CH.    XXI.]  STATUTE   OF   LIMITATIONS.  §    507 

right,  whether  the  action  was  to  recover  real  property  or  was 
only  a  personal  chose  in  action.^^  And  this  would  appear  to 
be  the  reasonable  construction  of  the  statutes.  They  in  ex- 
press terms  bar  the  actions.  But  of  late  years  some  of  the 
courts  have  gone  further  and  held  that  the  statute  affected 
also  the  right  or  title  of  the  disseisee.^^  Mr.  Washburn  says 
that  "the  operation  of  the  statute  takes  away  the  title  of  the 
real  owner,  and  transfers  it,  not  in  form,  indeed,  but  in  legal 
effect  to  the  adverse  occupant. ' '  ^-  The  statute  may  have 
the  effect  of  destroying  the  title  of  the  owner  altogether  and 
for  all  purposes,  but  it  cannot  be  said  to  transfer  it  to  the 
disseisor.  His  title  is  acquired  by  adverse  possession,  and  it 
is  only  made  perfect  by  rendering  the  rightful  owner  power- 
less to  defeat  it,  either  by  entry  or  by  ejectment.  The  only 
real  value  of  this  distinction  lies  in  the  settlement  of  a  ques- 
tion arising  under  the  subject  of  title  by  abandonment.^^ 

30  Ang.  on  Lim.,  Sees.  1,  7;  3  Washburn  on  Real  Prop.  146;  Daven- 
port r.  Tyrrel,  1  W.  Bl.  975;  McElmoyne  v.  Cohen.  13  Pet.  312;  Town- 
send  V.  Jemison,  29  How.  497 ;  Bulger  f.  Roche,  1 1  Pick.  30. 

31  School  District  v.  Benson,  31  Me.  384.  See  Steel  V.  Johnson.  4 
Allen  426;  Blair  v.  Smith,  16  Mo.  273.  See  3  Washburn  on  Real  Prop. 
163.  164;  Bliss  on  Code  Pleading,  Sec.  356. 

3^  3  Washburn  on  Real  Prop.  104.     The  rule,  as  stated  by  Mr.  Wash- 
burn, is  followed,  in  a  late  case,  in  Missouri.     Franklin  r.  Cunningham 
(1905),  86  S.  W.  Rep,  79.     See,  also,  for  rule  in  Oregon,  Hamilton  v. 
Flournoy   (1903),  74  Pac.  Rep.  483. 
88  See  post,  Sec.  517. 

46-  721 


SECTION  V. 

ESTOPPEL. 

Section  508.  Definition. 

509.  EstoppelB  in  pais. 

510.  Is  fraud  necessary  to  estoppel  in  pai», 

511.  Estoppel  in  deed. 

512.  Estoppel  in  deed  —  Continued. 

513.  Effect  of  estoppel  upon  the  title. 

514.  Effect   of  estoppel  —  Continued. 

515.  Estoppel  binding  upon  whom. 

§  608.  Definition. —  A  title  by  adverse  possession  may  also 
be  perfected  by  estoppel.  Estoppel  is  an  admission  or  rep- 
resentation which  is  held  by  law  to  be  conclusive  upon  the 
party  making  it,  because  its  disproof  would  result  in  injury  to 
him  who  relied  upon  its  truth.  The  subject  has  a  general 
reference  to  all  branches  of  the  law.  In  its  reference  to 
titles  to  real  property  they  may  be  divided  into  estoppels  in 
pais  and  estoppels  by  deed.'* 

§  509.  Estoppels  in  pais. —  An  estoppel  in  pais  is  a  repre- 
sentation, either  by  act  or  by  word,  or  even  in  some  cases 
by  silence,  made  by  one  party  to  another  for  the  purpose  of 
influencing  the  latter  in  reference  to  the  title  or  boundary  line 
of  the  property  about  to  be  purchased  by  the  latter.'*    One 

84  3  Washburn  on  Real  Prop.  70;  1  Prest.  Abst.  421;  Welland  Canal 
t?.  Hathaway,  8  Wend.  480;  Hanrahan  v.  O'Reilly,  102  Mass.  204;  Co. 
Lit.  352  a.  Conduct  creating  an  estoppel  may  be  without  an  intention 
to  deceive  or  mislead,  if  such  as  to  induce  a  reasonable  man  to  act  on 
it.  Globe  Nav.  Co.  v.  Maryland  Casualty  Co.  (Wash.  1905),  81  Pac. 
Rep.  826. 

35  Ham  V.  Ham,  14  Me.  351;  Attorney-General  v.  Merrimack  Co.,  14 
Gray  586;  McWilliams  v.  Morgan,  61  111.  89;  Veal  v.  Robinson,  76  Ga. 
838;  Coogler  v.  Rogers  (Fla.),  7  So.  Rep.  391;  Moose  v.  Trimmier 
722 


CH.   XXI.]  ESTOPPEL.  §    509 

is  estopped  from  asserting  title  to  land,  which  he  has  per- 
mitted to  be  sold  in  his  presence  to  a  bona  fide  purchaser  with- 
out disclosing  his  claim  to  the  land."  The  representation,  in 
order  to  constitute  an  estoppel,  must  refer  to  facts  not  equally 
within  the  knowledge  and  reach  of  both  parties.  If  the  pur- 
chaser, who  relies  upon  the  representation,  had  other  con- 
venient means  of  ascertaining  the  truth  of  the  case,  there  will 
be  no  estoppel.^^  The  party  seeking  to  establish  the  estoppel 
must  show  that  he  actually  relied  upon  the  representation,  and 
was  thereby  deceived.^*  It  is  further  required  that  the  repre- 
sentation must  have  been  made  with  the  intention  to  in- 
fluence the  conduct  of  the  party  misled,  or  it  was  so  made  that 
the  latter  might  reasonably"  have  been  expected  to  rely  upon 
it.^o 

(S.  C.)  11  S.  E.  Rep.  548,  552;  Jennings  v.  Harrison  (S.  C),  11  S.  E. 
Rep.  695;  Gruber  v.  Baker,  20  Nev.  453,  23  Pac.  Rep.  858;  Geary  v. 
Porter,  17  Oreg.  465.  "  Where  one  by  his  conduct  induces  another  to  act 
on  the  supposition  that  certain  conditions  exist,  he  will  not  be  heard 
to  deny  their  existence,  where  the  other  would  be  prejudiced  by  such 
denial."  Anthes  v.  Schroeder  (Neb.  1905),  103  N.  W.  Rep.  1072.  "The 
substance  of  estoppel  is  the  inducement  of  another  to  act  to  his  preju- 
dice." Steffens  v.  Nelson  (Minn.  1905),  102  N.  W.  Rep.  871.  "  The  doc- 
trine of  estoppel  and  laches,  with  reference  to  an  action  to  recover 
swamp  lands  patented  by  the  State  to  a  county,  applies  to  the  county 
to  the  same  extent  as  to  individuals."  Palmer  v.  Jones  (Mo.  1904),  85 
S.  W.  Rep.  1113. 

38  Gray  v.  Crockett,  35  Kan.  686,  12  Pac.  129;  Sumner  v.  Seaton 
(N.  J.),  19  Atl.  Rep.  884;  Bunting  v.  Gilmore  (Ind.),  24  N,  E.  Rep. 
583;  Short  v.  Currier,  150  Mass.  372,  23  N.  E.  Rep.  106;  Noble  v.  111. 
Cent.  R.  R.  Co.,  Ill  111.  437;  Bobb  v.  Bobb,  99  Mo.  578,  12  S.  W. 
Rep.  893.  But  see,  Tilotson  v.  Mitchell,  111  111.  518;  Knutson  v.  Vid- 
ders  (Iowa  1905),  102  N.  W.  Rep.  433. 

37  0dlin  V.  Grove,  41  N.  H.  477;  Mora  v.  Murphy,  83  Cal.  12,  83  Pac. 
63 ;  Stuart  r.  Lowry,  42  Minn.  473,  44  N.  W.  Rep.  532 ;  Western  N.  ¥.„ 
etc.,  R.  R.  Co.  V.  Richards   (Pa.),  19  Atl.  Rep.  931. 

38  Brown  v.  Bowen,  30  N.  Y.  541;  Malloney  v.  Heron,  49  N.  Y.  Ill,* 
Hanrahan  v.  O'Reilly,  102  Mass.  201;  Jones  v.  Merchants  Nat.  Bank, 
55  Hun  290,  8  N.  Y.  S.  382. 

3»  Turner  v.  Coffin,  12  Allen  401;  Andrews  v.  Lyon,  11  Allen  350; 
Howard  v.  Hudson,  2  Ell.  &  B.  1 ;  Ford  v.  Fellows,  34  Mo.  App.  630; 
Blanchard  t*.  Evans,  5  N.  Y.  Super  Ct.  543.     "  It  is  unnecessary  to  cre- 

723 


§    510  ESTOPPEL.  [part     III. 

§  510.  Is  fraud  necessary  to  estoppel  in  pais?  —  It  has  been 
a  disputed  question  how  far  the  element  of  fraud  is  necessary 
to  constitute  a  false  representation  a  ground  for  raising  an 
estoppel.  A  large  number  of  eases  hold  that,  if  there  are 
present  a  false  representation,  an  intention  to  influence,  and 
a  reliance  upon  that  representation,  an  estoppel  arises  against 
the  party  making  the  false  representation,  notwithstanding 
he  did  so  through  an  honest  mistake  as  to  the  facts  of  the 
case,  provided  the  circumstances  of  the  case  impute  to  the 
party  making  the  misrepresentation  a  knowledge  of  the  truth. **' 
While  it  is  maintained  by  other  courts  that  the  representation 
must  have  been  made  by  one  who  either  knew  it  to  be  false, 
or  had  no  reasonable  grounds  for  believing  it  to  be  true.*^ 
This  dispute  arises  only  where  the  representation  concerns  the 
title  to  the  land  generally.  "When  the  representation  refers 
to  the  boundary  line  between  two  estates,  the  courts  seem  to 
have  generally  agreed  upon  the  following  rule :  Where  a 
true  line  was  a  matter  of  uncertainty  and  dispute,  and  it 
could  not,  after  a  diligent  search,  be  ascertained,  if  the  parties 
agree  upon  a  line,  which  shall  constitute  the  boundary  line, 
both  will  thereafter  be  estopped  from  denying  that  the  line 
agreed  upon  was  the  true  line,  although  the  dispute  arose 

ate  an  estoppel  that  the  conduct  of  the  parties  should  be  characterized 
by  intent  to  deceive."  Rogers  V.  Portland  &  B.  St.  Ry.  (Me.  1905),  60 
Atl.  Rep.  713.  "  The  doctrine  of  equitable  estoppel  should  not  be  im- 
plied, unless  in  any  given  case  all  the  elements  exist  essential  to  create 
such  estoppel."  Rogers  v.  Portland  &  B.  St  Ry.  (Me.  1905),  60  Atl. 
Rep.  713.  "One  cannot  lose  a  vested  title  to  land  by  oral  admissions 
that  it  is  the  property  of  another."  Yock  v.  Mann  (W.  Va.  1905),  49 
S.  E.  Rep.  1019. 

40Bigelow  V.  Foss,  59  Me.  162;  Maple  V.  Kussart,  53  Pa.  St.  352; 
Morris  Canal  r.  Lewis,  12  N.  J.  Eq.  332;  Snodgrass  v.  Ricketts,  13,Cal. 
362;  Ford  r.  Fellows,  34  Mo.  App.  630.  See  Rogers  V.  Portland  Co. 
(Me.  1905),  60  Atl.  Rep.  713. 

♦1  Davidson  v.  Young,  38  111,  152 ;  Boggs  v.  Merced  Co.,  14  Cal.  367 ; 
Glidden  r.  Struppler,  52  Pa.  St.  405;  Copeland  v.  Copeland,  28  Me. 
639;  Whitaker  V.  Williams,  20  Conn.  104;  Hensaw  v.  Bissell,  18  Wall. 
271.     See  Lewis  v.  Brown   (Tex.  1905),  87  S.  W.  Rep.  704. 

724 


CH.    XXI.]  ESTOPPEL.  §    510 

from  an  honest  mistake  of  one  or  both  of  the  parties.*-  But 
if  the  representation  was  made  under  an  honest  mistake  of  the 
facts  in  a  case,  where  there  was  no  actual  uncertainty  as  to  the 
true  line,  the  party  making  the  representation  would  not 
thereafter  be  precluded  from  setting  up  the  true  line.*^  But 
if  the  party  making  the  representation  as  to  boundary  knew 
it  to  be  false  and  the  other  relied  upon  such  representation, 
an  estoppel  would  arise.**  These  questions,  however,  involve 
the  discussion  of  a  great  many  principles  of  equity,  and  upon 
the  application  of  which  the  courts  are  not  altogether  agreed. 
The  foregoing  enunciation  of  the  leading  principles  is  as 
much  as  can  be  attempted  in  an  elementary  treatise  on  real 
property.  It  is  hardly  necessary  to  state  that,  in  order  that 
an  estoppel  in  pais  may  perfect  a  title  by  adverse  possession, 
the  possession  must  have  been  acquired  under  an  honest  claim 
of  title.  For  an  honest  reliance  upon  the  false  representa- 
tion in  respect  to  the  title  is  necessary  to  raise  the  estoppel. 
In  perfecting  titles  by  adverse  possession,  estoppels  are  set  up 
by  the  defendant  in  defending  the  title  so  acquired  and 
perfected.     But,  if  necessary,  it  may  also  be  set  up  by  the 

42  Adams  i'.  Rockwell,  16  Wend.  285;  Dibble  v.  Rogers,  13  Wend.  536; 
Jackson  v.  Ogden,  7  Johns.  238;  Orr  v.  Hadley,  36  N.  H.  575;  Knowies 
r.  Toothaker,  58  Me.  174;  Russell  V.  Maloney,  39  Vt.  580;  Sneed  V. 
Osborn,  25  Cal.  624;  Reed  v.  Farr,  35  N.  Y.  117.  See  Wendall  v. 
Fisher  (Mass.  1904),  72  N.  E.  Rep.  322;  Le  Comte  v.  Carson  (W.  Va. 
1904),  49  S.  E.  Rep.  238.  "  Where  there  is  doubt  as  to  a  boundary,  an 
oral  agreement,  carried  into  execution  by  actual  possession,  is  valid, 
without  other  consideration  than  the  settlement  of  the  disputed  bound- 
ary."    Le  Comte  v.  Carson  (W.  Va.  1904),  49  S.  E.  Rep.  238. 

•*8  Proprietors,  etc.,  v.  Prescott,  7  Allen  494 ;  Vosburgh  v.  Teator,  32 
N.  Y.  561;  Russell  V.  Maloney,  39  Vt.  580.  See  Burdick  v.  Heinley, 
23  Iowa  515. 

**  Davenport  t".  Tarpin,  43  Cal.  598 ;  Lemmon  v.  Hartrook,  80  Mo. 
13;  Kirchner  v.  Miller,  39  N.  J.  Eq.  355;  Haas  v.  Plantz,  56  Wis.  105; 
Raynor  v.  Timerson,  51  Barb.  517;  Evans  v.  Miller,  58  Miss.  120; 
Pitcher  v.  Dove,  99  Ind.  175.  To  make  valid  an  oral  agreement  to  fix 
a  line  between  two  contiguous  tracts  of  land,  there  must  be  doubt  as 
to  the  true  line,  or  the  agreement  is  void.  Le  Comte  v.  Carson  (W.  Va. 
1904),  49  S.  E.  Rep.  238. 

725 


§    511  ESTOPPEL.  [part     III. 

plaintiff  in  exercising  the  rights  of  ownership  incident  to  the 
title. 

§  511.  Estoppel  by  deed. —  In  its  relation  to  the  title  of 
lands  an  estoppel  by  deed  arises,  where  there  is  in  the  deed 
an  express  or  implied  representation  that  the  grantor  at  the 
time  of  his  conveyance  was  possessed  of  the  title  which  his 
deed  purports  to  convey.**^  If  there  is  such  a  representation, 
and  it  is  false,  whether  he  is  committing  a  fraud  or  is  acting 
under  an  honest  mistake,  he  is  estopped  from  denying  that  he 
has  a  title;  and  consequently,  if  he  should  afterwards  acquire 
the  title,  he  could  not  by  setting  it  up  defeat  his  own  grant.** 
And,  as  in  the  case  of  an  estoppel  in  pais,  the  grantor  is  not 
estopped,  unless  the  grantee  took  the  deed  in  reliance  upon  the 
truth  of  the  grantor's  representations  as  to  his  title.*^  But  a 
grantor  may  disseise  his  grantee,  and  the  title  by  adverse  pos- 
session, so  acquired,  may  ripen  into  a  good  title,  which  the 
grantor  may  assert.  So  also  may  he  acquire  a  title  subse- 
quently in  any  other  manner,  and  assert  it  against  his  grantee, 
provided  it  does  not  negative  the  validity  of  the  title  which 
he  purported  to  convey.*^  The  representation  need  not  be 
express;  it  may  be  implied.  The  common-law  conveyance  by 
feoffment  was  itself  an  implied  representation  that  the  feoffor 

<5  Dickson  v.  Sledge  (Miss.  1905),  38  So.  Rep.  673;  Coleman  v.  Cole- 
man, 216  111.  261,  74  N.  E.  Rep.  701;  New  Orleans  v.  Riddell,  113  La. 
1051,  37  So.  Rep.  966. 

46  Smith  V.  Moodus  Water  Co.,  35  Conn.  400 ;  Jackson  v.  Murray,  12 
Johns.  201;  French  v.  Spencer,  21  How.  228;  Washabaugh  v.  Entricken, 
34  Pa.  St.  74;  Ryan  v.  United  States,  136  U.  S.  68;  Stranford  v.  Broad- 
way Sav.  &  Loan  Co.,  122  Ind.  422;  Coleman  t".  Bresnahan,  54  Hun 
619,  8  N.  Y.  S.  158;  Miller  V.  Texas,  etc.,  R.  R.  Co.,  132  U.  S.  68; 
Rogers  v.  Portland  Co.  (Me.  1905),  60  Atl.  Rep.  713;  Jones  v.  Jones, 
213  111.  228,  72  N.  E.  Rep.  695. 

*7  Viele  V.  Van  Steenburg,  31  Fed.  Rep.  249;  Rountree  v.  Lane  (S. 
C),  10  S.  E.  Rep.  941;  Mann  V.  City  of  Elgin,  24  111.  App.  419;  Mc- 
Cann  v.  Oregon  Ry.  &  Nav.  Co.,  13  Or.  455,   11  Pac.  Rep.  236. 

48  Parker  v.  Proprietors,  etc.,  3  Mete.   102;   Stearns  v.  Hendersass,  9 
Cush.  502;  Moore  v.  Littel,  41  N.  Y.  97;  Garabaldi  v.  Shattuck,  70  Cal. 
511,  11  Pac.  Rep.  778;  Luove  i;,  Wilson  (La.  1905),  38  So,  Rep.  522. 
726 


CH.   XXI.]  ESTOPPEL.  §    512 

had  an  absolute  title  to  the  estate,  which  was  sufficient  to 
bind  any  subsequently  acquired  title  in  his  hands.*"  But  in 
all  other  deeds,  and  particularly  in  deeds  which  take  effect 
under  the  Statute  of  Uses,  no  estoppel  can  arise,  unless  the 
recitals  or  the  covenants  of  the  deed  expressly  or  impliedly 
represent  that  the  grantor  had  a  good  title  to  the  land  which 
he  attempts  to  convey.  No  estoppel  can  arise  merely  from 
the  execution  and  delivery  of  such  a  deed,  and  the  payment  of 
a  valuable  consideration.**" 

§  512.  Estoppel  in  deeds  —  Continued. —  It  seems,  however, 
in  order  that  a  recital  may  work  an  estoppel,  it  must  refer 
specially  to  some  particular  fact.  General  recitals  do  not 
conclude  the  grantor  from  setting  up  an  after-acquired  title.^^ 
The  covenants  of  warranty  are  held  to  raise  an  estoppel  for 
the  purpose  of  avoiding  circuity  of  action.  An  entry  by  the 
grantor  under  his  after-acquired  title  would  be  a  breach  of  the 
covenants,  and  instead  of  putting  the  grantee  to  his  action  on 
the  covenants,  the  law  estops  the  grantor  from  asserting  the 
title  in  derogation  of  his  own  grant.**^  But  it  is  not  necessary 
that  the  covenant  be  a  general  covenant  of  warranty.  A  spe- 
cial warranty  would  ordinarily  be  sufficient.  It  will  operate 
as  an  estoppel  to  the  extent  of  the  liability  thereby  assumed 
by  the  grantor."*'     In  order  that  a  covenant  may  work  an 

*o  3  Washburn  on  Real  Prop.  94. 

00  3  Washburn  on  Real  Prop.  116;  White  V.  Patten,  24  Pick.  324; 
Jackson  v.  Wright,  14  Johns.  193;  Jackson  v.  Brinkerhoff,  3  Johns.  101; 
Bruce  v.  Luke,  9  Kan.  291,  12  Am.  Rep.  491;  Brennan  v.  Eggeman,  73 
Mich.  6.58. 

61  Huntington  v.  Havens,  5  Johns.  Ch.  23 ;  Shelley  v.  Wright,  Willes 
9 ;  Co.  Lit.  352  b ;  Morgan  V.  Lamed,  10  Mete.  53 ;  Carver  v.  Jackson, 
4  Pet.  85;  Hall  f.  Orvis,  35  Iowa  366;  Yancey  v.  Radford  (Va.),  10 
S.  E.  Rep.  972;  Pate  v.  French,  122  Ind.  10,  23  N.  E.  Rep.  673. 

52  Somes  V.  Skinner,  3  Pick.  52;  Oakes  v.  Marcey,  10  Pick.  195; 
Jackson  t?.  Waldron,  13  Wend.  189;  Bogy  v.  Shoab,  13  Mo.  378;  Gaff- 
ney  v.  Peeler,  21  S.  C.  55;  Robinson  v.  Douthit,  64  Texas  101;  Miller 
V.  Texas,  etc.,  R.  R.  Co.,  132  U.  S.  662. 

58  Trull  V.  Eastman,  3  Mete.  121;  Blake  v.  Tucker,  12  Vt.  39;  Kim- 
ball V.  Chisdell,  5  N.  H.  535;  Brundred  v.  Walker,  12  N.  J.  Eq.  140; 

727 


§   512  ESTOPPEL.  [part     III. 

estoppel  it  must  be  ieontained  in  a  deed  which  is  good  and 
valid  in  law  as  well  as  in  equity.  A  defective  deed  cannot 
create  an  estoppel  by  covenant.*^*  But  a  conveyance  in  con- 
sideration of  natural  love  and  affection,  is  suflficient.°°  So  will 
no  estoppel  arise  from  a  deed  with  covenant  of  warranty, 
where  the  deed  passes  an  interest,  upon  which  the  warranty 
can  operate,  although  the  interest  so  passing  is  not  commen- 
surate with  the  intention  of  the  parties.^"  And  if  the  deed 
conveys  "all  the  right,  title  and  interest"  of  the  grantor, 
instead  of  an  absolute  estate,  the  grantor  will  not  be  estopped 
from  setting  up  an  after-acquired  title,  since  he  did  not  un- 
dertake to  convey  any  greater  interest  or  better  title  than  he 
then  had."*^  So,  also,  a  quit-claim  deed  cannot  raise  an  es- 
toppel as  to  after-acquired  titles.^*  And  where  the  deed  is 
executed  by  two  or  more  owners  of  an  estate  in  common,  the 
estoppel,  whether  it  is  based  upon  a  recital  or  a  covenant  of 
warranty,   or   both,   only  operates   upon   the  share   of   each 


Coleman  v.  Coleman,  216  111.  261,  74  N.  E.  Rep.  701;  Cunningham  v. 
Cunningham  (Iowa  1904),  101  N.  W.  Rep.  470;  New  Orleans  r.  Ridtlell, 
113  La.  1051,  37  So.  Rep.  966.  Where  one  conveys  land  with  general 
warranty,  and  his  title  is  defective,  and  he  afterwards  acquires  a  good 
title,  it  inures  to  the  benefit  of  his  grantee.  Yock  f.  Mann  (W.  Va. 
1905),  49  S.  E.  Rep.  1019. 

54  Blanchard  v.  Brooks,  12  Pick.  47;  Patterson  v.  Pease,  5  Oliio  190; 
Kercheval  v.  Triplett,  1  A.  K.  Marsh.  493;  Dougal  v.  Fryer,  3  Mo.  29; 
Raymond  v.  Holden,  2  Cush.  204.  Where  proceedings  to  sell  land  for 
taxes  were  void,  and  not  merely  voidable,  a  landowner  was  not  estopped 
to  object  thereto  by  the  fact  that  he  personally  appeared  and  bid  on 
the  land  at  the  sale.     Young  t;.  Droz   (Wash.  1905),  80  Pac.  Rep.  810. 

55  Robinson  V.  Douthit,  04  Texas  101. 

66  Jackson  V.  Hoffman,  9  Cow.  271;  Lewis  V.  Baird,  3  McLean  5G;  2 
Prest.  Abst.  216;  4  Kent's  Com.  98. 

5T  Mills  V.  Ewing,  6  Cush.  34;  Doane  v.  Wilcutt,  5  Gray  328;  Ray- 
mond V.  Raymond,  10  Cush.  134;  Harrison  v.  Gray,  49  Me.  538;  White 
V.  Brocaw,  14  Ohio  St.  344;  Torrence  V.  Shredd,  112  111.  466. 

58  Fay  V.  Wood  (Mich.),  32  N.  W.  Rep.  614;  Frost  v.  Meth.,  etc., 
Missionary  Soc,  56  Mich.  62;  People  V.  Miller  (Mich.),  44  N.  W.  Rep. 
172.     But  see  Clark  v.  Daniels  (Mich.),  43  N.  W.  Rep.  854. 

728 


CH.    XXI.]  ESTOPPEL.  §    514 

grantor,  and  does  not  prevent  one  from  setting  up  a  title  to 
the  shares  of  the  other,  which  he  acquires  subsequently.**® 

§  513.  Effect  of  estoppel  upon  the  title. —  Where  the  estop- 
pel arises  in  pais  there  seems  to  be  no  doubt  that  it  has  only 
the  effect  of  locking  up  the  adverse  title  in  the  person  against 
whom  the  estoppel  operates,  instead  of  creating  a  title  in,  or 
transferring  the  true  title  to,  the  person  for  whose  benefit  it 
is  brought  into  operation.  It  only  precludes  the  party  from 
setting  up  his  true  title  against  him,  who  has  been  influenced 
by  false  representation.  If  one  who  has  been  deceived  has 
actually  received  no  title  in  any  other  way,  the  doctrine  of 
estoppel  will  only  help  him  in  an  action  brought  to  recover 
the  title  to  which  he  is  entitled.  If  he  has  a  title  by  adverse 
possession  under  a  claim  of  title,  the  estoppel  will  perfect  it 
by  preventing  his  ouster  under  the  paramount  title  by  those 
who  are  affected  by  the  estoppel.  But  a  difficult  question 
arises  in  this  connection,  where  it  is  an  estoppel  by  deed. 
Two  different  theories  prevail,  and  are  supported  by  eminent 
authority.  According  to  one  theory,  the  estoppel  by  deed 
simply  precludes  the  grantor  from  setting  up  an  after-ac- 
quired title  in  derogation  of  his  own  grant.  The  opposing 
theory  is  to  the  effect  that  the  estoppel  actually  passes  the 
after-acquired  title  to  the  grantee  immediately  upon  its  ac- 
quisition by  the  grantor.  To  use  the  expression  commonly 
found  in  these  authorities,  it  "inures"  to  the  grantee.  This 
latter  theory  is  directly  opposed  to  the  general  doctrine  of 
estoppel,  and  is  believed  to  be  unfounded. 

§  514.  Effect  of  estoppel  —  Continued. —  A  large  array  of 
authorities  is  cited  by  Mr.  Rawle  and  Mr.  Washburn,***  but  as 

B»  Trull  V.  Eastman,  3  Mete.  121 ;  Wright  v.  Shaw,  5  Cush.  56.  See 
Coleman  r.  Coleman,  216  111.  261,  74  N.  E.  Rep.  701.  But  as  to 
estoppel  of  wife  by  deed  of  husband,  see,  Cunningham  v.  Cunningham 
(Iowa  1905)  101  N.  W.  Rep.  470;  Bland  v.  Windsor  et  al.  (Mo.  1905), 
86  S.  W.  Rep.  162. 

«o  Rawle,  Gov.  of  Tit.    (4  ed.)   404;   3  Washburn  on  Real  Prop.   190. 

729 


§    514  ESTOPPEL,  [part     III, 

Mr,  Bigelow  very  correctly  states,  in  his  article,®^  and  again 
in  his  work  on  Estoppel,"^  these  authorities  refer  to  the  sub- 
ject only  in  general  terms,  and  cannot  be  treated  as  final 
and  conclusive.  In  fact,  in  some  of  the  cases,  the  position  is 
assumed  by  the  reporter  in  the  syllabus,  without  having  any- 
thing in  the  decision  of  the  court,  or  the  facts  of  the  case,  to 
warrant  it.®'  According  to  Mr.  Bigelow,  the  error  has  oc- 
curred through  a  failure  to  distinguish  between  the  effect  of 
the  common  law  conveyances  of  feoffment,  fine,  recovery  and 
lease,  and  that  of  the  deeds  which  take  effect  under  the  Statute 
of  Uses.  He  admits  that  by  these  common-law  conveyances 
the  after-acquired  interest  passed  by  estoppel  to  the  grantee, 
while  he  holds  that  a  different  conclusion  must  be  reached  in 
respect  to  deeds  of  bargain  and  sale,  covenants  to  stand  seised, 
and  lease  and  release.  In  the  leading  case  of  Somes  v.  Skin- 
ner,®* all  the  authorities  relied  upon,  concerned  estoppels 
arising  in  these  common-law  conveyances.  But  it  seems  to 
the  writer  that  the  entire  doctrine  is  fallacious,  whether  it 
refers  to  common-law  conveyances,  except  a  lease  for  a  term 
of  years,  or  to  deeds  under  the  Statute  of  Uses,  and  it  arises 
from  the  false  idea  of  the  courts  that  the  doctrine  of  inure- 
ment was  necessary,  in  order  to  give  the  grantee  sufficient 
title  to  defend  against  trespassers.®''    At  common  law  no  con- 

The  following  are  the  leading  eases  cited  by  Mr.  Washburn:  Jackson  V. 
Stevens,  13  Johns.  316;  Brown  V.  McCormick,  6  Watts  60;  Jackson  f. 
Matsdorf,  11  Johns.  91;  Terrett  v.  Taylor,  9  Cranch  43;  Comstock  v. 
Smith,  13  Pick.  116;  White  v.  Patten,  24  Pick.  324;  Van  Rensselaer  V. 
Kearney,  11  How.  322;  Goodson  v.  Beacham,  24  Ga.  150;  Kimball  v. 
Schoff,  40  N.  H.  190;  Burton  v.  Reeds,  20  Ind.  93;  McCusker  v.  Mc- 
vey,  9  R.  I.  529;  Plympton  v.  Converse,  42  Vt,  712;  Doe  v.  Dowdall,  3 
Houst,  369;  Parker  v.  Marks,  82  Ala.  548;  Kaiser  v.  Earhart,  64 
Miss.  492;  Jacob  v.  Yale  (La.),  1  So.  Rep.  822;  Cornish  v.  Frees,  74 
Wis.  490. 

019  Am.  Law  Rev.  252, 

k2Big.  on  Estop,  285-339, 

«3  See  particularly  Jackson  v.  Stevens,  13  Johns.  316;  Jackson  v. 
Matsdorf,  11  Johns.  91;  Terrett  t?.  Taylor,  9  Cranch  43. 

«*3  Pick.  52. 

•sBlanchard  V.  Ellis,  1  Gray  195;  Bean  v.  Welsh,  17  Ala.  770.  A 
730 


CH.    XXI.]  ESTOPPEL.  §    514 

veyanee  could  be  made  by  one  of  lands  which  were  in  the  ad- 
verse possession  of  another.*®  Where,  therefore,  there  was  a 
conveyance  made  of  the  lands — particularly  if  it  was  a  com- 
mon-law conveyance — the  grantee  or  feoffee  acquired  at  least 
a  title  by  adverse  possession,  if  his  grantor  was  not  lawfully 
seised.  This  title  by  adverse  possession  was  good  against  all 
the  world  except  the  true  owner.*'  And  if  his  grantor  ac- 
quired the  paramount  title  he  was  estopped  from  enforcing  it 
against  his  grantee.  The  distinction  between  the  two  theories 
only  acquired  importance  when  the  common-law  rule,  requir- 
ing the  grantor  to  be  seised,  was  abolished  and  the  grantor 
was  permitted  to  make  a  legal  conveyance  while  he  was  dis- 
seised. The  question  then  for  the  first  time  arose,  whether 
the  title,  subsequently  acquired  by  one  who  at  the  time  of 
his  grant  had  neither  title  nor  possession,  so  far  passed  by 
estoppel  to  the  grantee  as  to  permit  him  to  maintain  an  ac- 
tion of  ejectment  against  one,  who  holds  in  adverse  posses- 
sion to  both  him  and  his  grantee.  That  a  man  acquires  noth- 
ing by  a  deed  from  one,  who  has  neither  title  nor  possession, 
needs  no  authority.**  The  after-acquired  title  must  inure 
or  pass  to  the  grantee,  instead  of  being  shut  up  in  the  hands 
of  the  grantor,  in  order  that  the  grantee  may  maintain  eject- 
ment against  a  disseisor.*"  The  better  opinion  is  that  no  title 
passes  by  estoppel  to  the  grantee.     If  he  has  acquired  none 

common  law  lease  for  a  term  of  years  is  an  executory  contract,  until 
the  lessee  has  entered  into  possession.  See  ante,  Sec  131.  The  lessee 
may  therefore  sue  for  possession  at  any  time  during  his  term,  and  may 
take  advantage  of  any  after-acquired  title  of  his  lessor.  But  the  grant 
of  a  freehold  operates  eo  instant i,  and  conveys  the  title  upon  the  de- 
livery of  the  deed,  or  not  at  all. 

««  See  post,  Sec.  559. 

«7  See  ante.  Sees.  490,  491. 

esTyl.  on  Adv.  Pos.  542. 

«»See  Jackson  v.  Bradford,  4  Wend.  619;  3  Prest.  Abat.  25;  Wyvel's 
Case,  Hob.  44;  Wright  v.  Wright,  1  Ves.  Sr.  391;  Somes  r.  Skinner,  3 
Pick.  52,  80;  Way  v.  Arnold,  18  Ga.  350;  Jacocks  v.  Gilliam,  3  Murph. 
47;  «.  c.  4  Hawks  310,  to  the  effect  that  such  a  grantee  could  not  main- 
tain an  action  of  ejectment  in  his  own  name  against  the  disseisor. 

731 


§    515  ESTOPPEL.  [part    III. 

by  force  of  his  grant,  i.  e.,  if  he  has  not  acquired  a  title  by  ad- 
verse possession,  he  does  not  gain  one  by  estoppel.'^"  In  some 
of  the  States,  to  supply  the  deficiency,  statutes  have  been  en- 
acted, which  cause  after-acquired  titles  to  pass  instanter  from 
the  grantor  to  the  granteeJ^  In  the  absence  of  the  statute  the 
title  remains  in  the  grantor,  but  he  is  precluded  from  setting 
it  up.  Neither  is  the  grantee  obliged  to  take  advantage  of 
the  title  subsequently  acquired.  He  may  bring  his  action  for 
the  breach  of  the  covenants  if  he  has  been  evicted.'^  It  would 
seem  that  if  the  title  actually  inured  to  the  grantee,  his  dis- 
possession by  his  grantor,  under  the  claim  of  a  paramount  title, 
could  not  be  treated  as  a  breach  of  the  covenant  of  warranty. 
It  would  be  a  simple  act  of  trespass.  And  in  cases  where  by 
estoppel  one  acquires  a  right  to  the  title  of  lands  subsequently 
acquired,  a  court  of  equity  will  always  grant  a  decree  for  fur- 
ther assurance,  so  as  to  protect  the  grantee's  title  against  the 
acquisition  of  the  paramount  title  by  an  innocent  purchaser 
without  notice  of  the  estoppel. 

§  515.  Estoppel  binding  upon  whom. —  An  estoppel  will  not 
only  bind  the  party  who  makes  the  false  representation,  but 
also  all  those  who  are  in  privity  with  him,  whether  the  privity 
is  of  estate,  of  contract,  or  by  blood.  A  stranger  can  neither 
take  advantage  of  an  estoppel,  nor  be  bound  by  it.'^^     If,  how- 

70  Gibson  v.  Chouteau,  39  Mo.  566;  Van  Rensselaer  v.  Kearney,  11 
How.  322;  Jackson  r.  Bradford,  4  Wend.  619;  Wright  v.  Wright,  1 
Ves.  Sr.  391.  See  Reeder  v.  Craig,  3  McCord  411.  But  see  Cooper  V. 
Burns  (Neb.  1904),  133  Fed,  Rep.  398;  New  Orleans  v.  Riddell,  113 
La.   1051,  37  So.  Rep.  966. 

71  Bogy  r.  Shoab,  13  Mo.  379;  Clark  v.  Baker,  14  Cal.  612;  Kline  V. 
Ragland,  47  Ark.  111. 

72  Blanchard  v.  Ellis,  1  Gray  195;  Tucker  V.  Clarke,  2  Sandf.  Ch.  96; 
Burton  v.  Reed,  20  Ind.  87 ;  Woods  v.  North,  6  Humph.  309 ;  Noonan  v. 
Isley,  21  Wis.  139,  Contra,  King  v.  Gelson,  32  111.  348;  Reese  v.  Smith, 
12  Mo.  344. 

73WiveVs  Case,  Hob.  45;  Wright  v.  W^right,  1  Ves.  Sr.  391;  Somes  v. 
Skinner,  3  Pick.  52;  Coogler  v.  Rogers   (Fla.),  7  So.  Rep.  391;  Glover 
f.  Thomas,  75  Texas  506,  12  S.  W.  Rep.  684;  Gruber  v.  Baker,  20  Nev. 
732 


CH.    XXI,]  ESTOPPEL.  §    515 

ever,  the  grantor  acquires  and  holds  possession  adversely  to 
the  grantee,  the  subsequently  acquired  title  will  accrue  to  the 
grantor  and  cannot  be  claimed  by  the  grantee  on  the  theory 
of  estoppelJ*  Nor  can  any  one  enforce  an  estoppel,  except 
the  person  to  whom  the  representation  was  made,  or  who  was 
intended  to  be  influenced,  and  those  who  stand  in  privity  with 
him,  and  claim  under  him.  But  where  the  privies  of  the 
grantor,  who  is  estopped,  are  subsequent  purchasers  for  value, 
they  are  only  estopped  where  they  have  a  notice  of  the  es- 
toppel, whether  that  estoppel  arises  in  pais  or  by  deed.'''  If 
the  subsequent  purchaser  of  an  after-acquired  title  has  re- 
ceived no  notice  of  the  prior  deed,  the  estate  in  his  hands  is 
freed  from  the  estoppel. '^^  But  it  is  a  doubtful  question 
whether  the  registration  of  the  prior  deed,  before  the  title  had 
been  acquired  by  the  grantor  and  recorded,  would  properly  be 
considered  constructive  notice  of  the  estoppel.  It  is  certainly 
in  violation  of  the  spirit  of  the  registration  laws  which  only  re- 
quire the  investigator  to  search  the  records  for  any  incum- 
brance or  conveyance  which  occurs  between  the  time  when  the 
grantor  acquired  the  title,  and  the  time  when  he  offers  the 
title  for  conveyance.^''    But  in  order  that  one  may  be  bound 

453,  23  Pac.  Rep.  858;  Grand  Tower,  etc.,  Co.  f.  Gill,  111  111.  541;  Con- 
aolidated,  etc.,  Min.  Co.  V.  Lebanon  Min.  Co.,  9  Colo.  343,  12  Pac.  Rep. 
212;  Staffordville  Gravel  Co.  v.  Newell  (N,  J.),  19  Atl.  Rep.  209; 
Smythe  v.  Henry,  41  Fed.  Rep.  705;  Cate  v.  French,  122  Ind.  10,  23  N. 
E.  Rep.  673;  New  Orleans  v.  Riddell,  113  La.  1051,  37  So.  Rep.  966; 
Louve  V.  Wilson  (La.  1905),  38  So,  Rep.  522;  MeCormick  V.  Herron 
(Iowa  1905),  103  N.  W.  Rep.  988;  Boshore  v.  Parker  (Cal.  1905),  80 
Pac.  Rep.  707.  "  One  whose  only  claim  to  land  is  as  heir  of  one 
estopped  to  claim  it  has  no  right  to  it."  Spears  v.  Conley  (Ky.  1905), 
87  S.  W.  Rep.  1072,  27  Ky.  Law  Rep.  1169. 

74Garbaldi  V.  Shattuck,  70  Cal.  511,  11  Pac.  Rep.  778. 

75  Carpenter  v.  Buller,  8  Mees.  &  W.  212;  3  Washburn  on  Real 
Prop.  91. 

'•  Duchess  of  Kingston's  Case,  2  Smith's  Ld.  Cas,  720 ;  Shaw  v. 
Beebe,  35  Vt,  204 ;  Thistie  v.  Buford,  50  Mo.  278 ;  Rawle  Cov.  Tit.  427. 

77Calder  v.  Chapman,  2  P.  F.  Smith  359;  McCusker  v.  McEvey,  10 
R.  I.  606;  dissenting  opinion  of  Judge  Potter;  Great  Falls  Co.  v. 
Worc-ester,  15  N.  H.  452;  Bright  v.  Buckman,  39  Fed.  Rep.  243.     But 

733 


§   515  ESTOPPEL.  [part    III. 

by  an  estoppel,  he  must  have  the  capacity  to  make  a  valid  deed. 
Infants  and  married  women  cannot  be  bound  by  estoppel.'' 

see  Wilson  v.  Smith,  52  Hun  171;  Pike  ».  Calvin,  29  Me.  183;  Wark 
V.  Willard,  13  N.  H.  389;  White  v.  Patten,  24  Pick.  324;  Teflft  v.  Mun- 
son,  57  N.  Y.  97;  Doyle  v.  Peerless  Pet.  Co.,  44  Barb.  239;  Farmers 
L.  &,  T.  Co.  V.  Maltby,  8  Paige  361.  But  see  Wilson  v.  Smith,  52  Hun 
171. 

78  Raymond  v.  Holden,  2  Cush.  264;  Concord  Bk.  v.  Bellis,  10  Gush. 
276;  Todd  v.  Kerr,  42  Barb.  317;  Laekman  v.  Wood,  25  Cal.  153; 
Williams  v.  Baker,  71  Pa.  St.  482;  Snoddy  v.  Leavitt,  105  Ind.  357; 
Hall  V.  Ditto  (Ky.),  12  S.  W.  Rep.  941;  Kirkham  v.  Wheeler  Co. 
(Wash.  1905),  81  Pac.  Rep.  869;  McPeck's  Heirs  v.  Graham's  Heirs 
(W.  Va,  1904),  49  S.  E.  Rep.  125;  Ft.  Wayne  Trust  Co.  v.  Sihler,  72 
N.  E.  Rep.  494.  By  statute,  in  Indiana,  a  married  woman  is  bound 
by  an  estoppel  in  pais,  like  any  other  person.  Burns,  Am.  St.  1901, 
Sec.  6962. 

734 


SECTION  VI. 

ABANDONMENT. 

Eection  516.  Effect  of  abandonment  generally. 

517.  Abandonment  of  title  by  adverse  possession. 
618.  Surrender  of  deed. 

§  516.  Effect  of  abandonment  generally. —  It  hus  been  suj)- 
posed,  that  a  title  to  real  property  may  be  lost  by  abandon- 
ment by  the  owner,  and  such  would  seem  to  have  been  the 
opinion  of  the  United  States  Circuit  Court  of  Ohio.  ^'  Ease* 
ments  and  other  incorporeal  hereditaments  may  be  lost  by 
abandonment,  as  has  been  explained.*"  So  also  may  all  equit- 
able and  executory  rights  to  or  in  the  title.®^  But 
wherever  abandonment  can  take  effect,  it  simply  destroys  the 
title,  and  does  not  vest  it  in  another.  A  bargain  to  give  up  an 
equitable  claim  may  work  an  abandonment,  but  the  bargainee 
acquires  no  title  by  the  bargain.®^  But  no  legal  title  of  a  cor- 
poreal hereditament  may  be  lost  or  destroyed  by  any  act  of 
abandonment,  with  a  possible  exception  to  be  mentioned  in 
the  next  section.  A  legal  title,  properly  vested,  can  only  be  di- 
vested by  abandonment,  when  the  circumstances  of  the  case 
are  sufficient  to  raise  an  estoppel,  or  where  the  possession  is 
acquired  by  one  in  consequence  of  the  abandonment,  and  held 
by  him  under  claim  of  title  for  the  period  of  limitation.*' 

7»  Holmes  v.  Railroad,  8  Am.  Law  Reg.  716. 

80  See  ante,  Sec.  435.     See  Trewberger  v.  Owena,  80  N.  Y.  S.  694. 

81  Picket  V.  Dowdall,  2  Wash.    197;   Dikes  v.  Miller,  24  Texas  424. 

82  Barker  v.  Salmon,  12  Mete.  32;  Sumner  v.  Stevens,  G  Mete.  337; 
Booker  v.  Stivender,  13  Rich.  Eq.  85;  Kirk  v.  King,  3  Pa.  St.  441. 

83  "  The  doctrine  of  abandonment  is  only  applicable  where  the  title 
affected  is  inchoate  or  imperfect.  Where  a  title  has  passed  by  patent 
from  the  commonwealth,  it  is  never  reinvested  by  abandonment." 
Kreamer  v.  Voneida   (Pa.  Super.  Ct.  1904),  24  Pa.  Super  Ct.  347. 

735 


§    517  AB.VNDONMENT.  [PART     III, 

The  title,  although  not  lost  by  abandonment,  would  be  barred 
by  estoppel  or  by  the  Statute  of  Limitations.**  The  voluntary 
abandonment  would  not  prevent  the  possession  of  another 
from  becoming  adverse  to  the  real  owner,  though  the  aban- 
donment was  expressly  made  for  his  benefit  and  to  him.  But 
where  the  abandonment  is  not  accompanied  by  the  circum- 
stances of  estoppel  or  limitation,  no  matter  how  formal  the 
abandonment  was,  if  it  fall  short  of  a  legal  deed  of  conveyance, 
it  has  no  effect  whatsoever  upon  the  legal  title.  The  owner 
may  afterwards  re-enter  and  eject  any  one  who  may  have  en- 
tered into  possession  in  reliance  upon  the  abandonment. 

§  517.  Abandonment  of  title  by  adverse  possession. —  There 
can  be  no  doubt  that,  as  long  as  the  title  by  adverse  possession 
is  not  made  absolute  by  the  operation  of  the  Statute  of  Limita- 
tions, it  may  be  lost  or  destroyed  by  abandonment.  It  is  an 
invariable  requirement  that  the  possession  must  be  continued 
and  uninterrupted,  in  order  that  the  title  of  the  real  owner 
may  be  barred  by  the  statute.®'*  But  where  the  statutory' 
period  has  elapsed,  and  the  title  of  the  true  owner  is  barred,*  it 
becomes  a  question  of  considerable  doubt,  whether  a  subse- 
quent abandonment  would  destroy  the  title  by  adverse  pos- 
session which  has  then  become  perfected  by  the  opera- 
tion of  the  statute.  The  Supreme  Courts  of  Georgia  and 
Massachusetts  have  held  that  such  an  abandonment  would 
be  taken  as  conclusive  proof  of  the  fact  that  the  possession  had 
not  been  adverse,  and  would  remove  the  bar  of  the  statute.''® 
A  contrary  opinion  has  been  reached  by  the  supreme  court  of 
Maine.^^     The   solution   of   the   question   depends   upon   the 

8-t  Jackson  v.  Bowen,  1  Caines  358;  Adams  V.  Eockwell,  16  Wend. 
307;  Tolman  V.  Sparhawk,  5  Mete.  476;  Barker  V.  Salmon,  2  Mete.  32; 
Sumner  v.  Stevens,  6  Mete.  327;  Gregg  v.  Blackmore,  10  Watts  192; 
Garabaldi  v.  Shattuck,  70  Cal.  511,  11  Pac.  Rep.  778. 

85  See  ante,  Sec.  504.  "  Where  an  adverse  occupant  of  land  attorns 
to  the  true  owner,  the  disseisin  of  the  latter  is  thereby  interrupted." 
Illinois  Steel  Co.  V.  Budzisz   (Wis.  1902),  90  N.  W.  Rep.  1019. 

8«Vickery  V.  Benson,  26  Ga.  589;  Church  v.  Burghart,  8  Pick.  327. 

8T  School  District  f.  Benson,  31  Me.  381. 
736 


CH.  xxl]  abandonment.  §  518 

proper  theory  in  regard  to  the  effect  of  the  Statute  of  Limita- 
tions. If  the  statute  simply  takes  away  the  rightful  owner's 
remedies  for  the  recovery  of  seisin  and  possession,  and  leaves 
the  barren  right  or  title  still  subsisting  in  him,  then  if  he  re- 
covers the  seisin  by  the  consent  of  the  disseisor,  having  then 
both  the  seisin  and  the  lawful  title,  it  would  seem  that  the  title 
by  adverse  possession  and  limitation  would  be  destroyed  by 
the  abandonment.  But  if  the  statute  goes  farther,  and  either 
transfers  the  lawful  title  of  the  real  owner  or  destroys  it  com- 
pletely, then  the  abandonment  would  have  no  more  effect  in 
this  case  than  it  would  upon  any  other  title.  The  possession 
acquired  by  the  rightful  owner  in  such  a  case  would  only  give 
him  a  title  by  adverse  possession,  which  can  only  be  made  abso- 
lute by  estoppel  or  by  limitation.  But  in  any  ease  a  tempo- 
rary recovery  of  possession  by  the  original  owner  after  the 
running  of  the  Statute  of  Limitations  will  not  affect  the  dis- 
seisor's title,  where  there  has  been  no  voluntary  surrender  to 
the  original  owner.^* 

§  518.  Surrender  of  deed. —  It  has,  however,  been  held  in  a 
number  of  cases  that  if  a  deed  is  delivered  up  by  the  grantee, 
and  destroyed,  the  title  revests  in  the  grantor,  if  the  deed  has 
not  been  recorded.  And  the  ground  upon  which  the  courts 
rest  this  decision  is  that,  having  voluntarily  destroyed  this  pri- 
mary evidence  of  title,  the  grantee  will  not  be  permitted  to  in- 
troduce parol  evidence  to  establish  the  contents  of  the  deed.*" 
But  the  mere  cancellation  and  return  of  the  deed  will  not  be 
sufficient  to  revest  the  title  in  the  grantor.""    An  effective 

88  Falson  v.  Simshauser,  130  111.  649,  22  N.  E.  Rep.  835. 

89  Commonwealth  v.  Dudley,  10  Mass.  403 ;  Holbrook  v.  Tirrell,  9 
Pick.  105;  Lawrence  v.  Stratton,  6  Cush.  163;  Howe  V.  Wilder,  11  Gray 
267;  Patterson  V.  Yeaton,  47  Me.  314;  Parker  v.  Kane,  22  How.  1; 
Dodge  V.  Dodge,  33  N.  H.  487 ;  Sawyer  v.  Peters,  50  N.  H.  143 ;  Howard 
r.  Huffman,  3  Head  564;  Blake  v.  Fash,  44  111.  305;  Baker  v.  Kane,  4 
Wis.  12.  See  Illinois  Steel  Co.  V.  Budzisz,  90  N.  W.  Rep.  1019;  Knight 
f.  Denmon,  90  N.  W.  Rep.  863;  Anderson  v.  Carter,  69  S.  W.  Rep.  78. 

00  Lawrence  v.  Stratton,  6.  Cush.   163;   Wilson  v.  Hill,   13  N.  J.  Eq. 
'  143;  Hoimea  v.  Trout,  7  Pet.  171;  Hall  v.  McDuff,  24  Me.  312;  Fonda  v. 

47  737 


§    518  ABANDONMENT.  [PART     III. 

abandonment  would  only  result  therefrom  where  the  circum- 
stances give  rise  to  an  estoppel,  as  where  an  innocent  purchaser 
is  induced  to  accept  a  deed  from  the  grantor,"^  or  where  all  the 
muniments  of  title  have  been  voluntarily  destroyed  and  the 
grantee  has  to  resort  to  parol  evidence  to  prove  his  title.  A 
recorded  deed  cannot,  therefore,  be  surrendered  in  this  way. 
A  surrender  can  only  be  made  to  the  grantor,  and  nothing 
short  of  cancellation  or  destruction  of  the  deed  would  have  the 
effect  of  passing  the  title  back  to  him.'*  It  must,  however, 
be  understood  that  the  surrender  of  the  deed  and  its  destruc- 
tion can  only  have  the  effect  of  passing  back  the  title  to  the 
grantor,  when  the  grantee  is  prohibited  by  the  law  from  prov- 
ing the  contents  of  the  deed  by  parol  evidence.  And  whenever 
the  law  of  evidence  is  changed,  so  that  parol  evidence  or  any 
other  secondary  evidence  is  admissable  to  prove  the  contents  of 
a  deed  which  has  been  voluntarily  surrendered  by  the  grantee, 
it  will  be  found  that  no  such  surrender  will  revest  the  title  in 
the  grantor,  and  that  the  grantee  may  nevertheless  assert  the 
title  to  the  land.  And  it  must  be  remembered  in  any  case  that 
the  voluntary  surrender  will  only  have  the  effect  of  destroying 
the  title,  so  far  as  the  grantee  and  his  privies  are  concerned. 
His  wife's  dower  will  not  be  affected  in  any  manner  by  her 
husband's  surrender  of  the  deed  to  himself.  For  the  purpose 
of  asserting  her  claim  of  dower  on  the  death  of  her  husband, 
parol  evidence  is  admissible  to  prove  the  contents  of  the  sur- 
rendered deed.®^  But  if  the  deed  was  not  recorded,  the  dower 
right  could  not  be  enforced  against  subsequent  purchasers 
without  notice.®* 

Sage,  46  Barb.  122;  Fawcett  v.  Kinney,  33  Ala,  264;  Howard  v.  Huflf- 
man,  3  Head  562;  Kearsing  v.  Kilian,  18  Cal.  491. 

»i  1  Commonwealth  v.  Dudley,  10  Mass.  403;  Holbrook  v.  Tirrell,  9 
Pick.  105;  Trull  v.  Skinner,  17  Pick.  213;  Patterson  v.  Yeaton,  47  Me. 
314. 

92  Howe  V.  Wilder,  11  Gray  267;  Bank  v.  53astman,  44  N.  H.  778; 
Blaney  v.  Hanks,  14  Iowa  400. 

93  Johnson  v.  Miller,  40  Ind.  376,  17  Am.  Rep.  699. 

94  Wheeler  v.  Smith,  62  Mich.  373.  For  nature  and  effect  of  abandon- 
ment of  mineral,  as  a  part  of  the  corpus  of  the  land  and  other  mining 
rights,  see  White,  Mines  &  Min.  Rem.,  Sees.  419  to  428,  and  cases  cited. 

738 


CHAPTER  XXII. 

TITLE   BY   GRANT. 

Section      I.  Title  hy  public  grant. 

II,  Title  by  involuntary  alienation. 
III.  Title  by  private  grant. 

SECTION  I. 

TITIiE  BY  PUBLIC   GRANT. 

Section  519.  Public  lands. 

520.  Forms  of  public  grant. 

521.  The  relative  value  of  the  patent  and  certificate  of  entry. 

522.  Pre-emption. 

§  519.  Public  lands. —  As  has  been  explained  in  a  preced- 
ing section,  all  lands  not  held  as  the  private  property  of  indi- 
viduals are  vested  in  the  State  or  United  States.  In  the  origi- 
nal thirteen  States  all  such  lands  belonged  to  the  State,  while 
in  all  the  others  which  were  subsequently  admitted  into  the 
Union,  except  Texas,  the  public  lands,  except  those  given  by 
compromise  to  certain  States,  are  the  property  of  the  United 
States.^  These  lands  of  the  general  government  have  been  by 
official  survey  divided  into  townships  and  sections,  and  the 
latter  again  sub-divided  into  fractions  of  a  section,  halves, 
quarters  and  eighths.  And  in  making  a  grant  or  conveyance 
of  these  lands,  reference  is  made  to  the  township,  section,  and 
fraction  of  a  section,  as  a  sufficient  description  of  the  tract 

1  3  Washburn  on  Real  Prop.  182-184;  Terrett  v.  Taylor,  9  Cranch  50; 
Worcester  v.  Georgia,  6  Pet.  543;  Johnson  v.  Mcintosh,  8  Wheat.  543. 
For  construction  of  Texas  Con.  as  to  disposal  of  its  public  lands,  see 
Lane  v.  Huff  on  (Tex.  1904),  82  S.  W.  Rep.  1070. 

739 


§    519  TITLE   BY    PUBLIC   GRANT.  [PART   III. 

conveyed.*  The  conveyance,  by  which  the  title  to  public  lands 
is  transferred  by  the  government  to  private  individuals,  is 
called  a  public  grant.  Although  particular  reference  is  made 
in  this  connection  to  the  public  lands  held  by  the  general  gov- 
ernment, the  general  principles  here  explained  are  equally  ap- 
plicable to  lands  belonging  to  the  State  governments.  In 
respect  to  the  public  lands  of  the  United  States,  it  must  be 
understood  that  although  the  law  of  the  State  in  which  the 
land  lies  governs  the  rights  of  property  in  it,  when  it  is  the 
property  of  a  private  individual,^  until  a  grant  of  such  land 
has  been  made  by  the  government,  and  even  in  construction  of 
the  validity  of  the  grant,  the  law  of  the  United  States  is  para- 
mount. Until  conveyance  by  the  government  the  lands  are 
not  subjected  to  State  control.*  Another  rule  of  construction 
may  be  mentioned  here  which  has  a  general  application  to  the 
subject  under  consideration.  It  is,  that  in  questions  of  prop- 
erty rights  arising  between  the  State  and  individual  the  con- 
struction is  always  most  favorable  to  the  State,  whereas  a 
grant  from  one  individual  to  another  is  construed  most  favor- 
ably to  the  grantee.^    But  it  seems  that  where  the  grant  by 

2  3  Washburn  on  Real  Prop.  185 ;  Walk.  Am.  Laws  42,  43.  For  con- 
struction of  grant  of  section  of  Government  land,  see  Story  r.  Wolver- 
ton  (Mont.  1904),  78  Pac.  Rep.  589.  See,  also.  Hill  v.  McCord,  117 
Wis.  306,  94  N.  W.  Rep.  65,  195  U.  S.  395. 

'United  States  v.  Crosby,  7  Cranch  115;  Kerr  v.  Moon,  9  Wheat.  565; 
Darby  v.  Mayer,  10  Wheat.  465;  Cutler  v.  Davenport,  1  Pick.  81;  Callo- 
way V.  Doe,  1  Blackf.  372;  Nims  v.  Palmer,  6  Cal.  8. 

*  Irvine  V.  Marshall,  20  How.  558;  Bagnell  v.  Broderick,  13  Pet.  436; 
Wilcox  V.  Jackson,  13  Pet.  516;  Cannon  v.  White,  16  La.  An.  89.  In 
California  it  has  been  held  that  the  United  States  hold  the  public 
lands  in  that  State  on  the  same  terms  and  with  the  same  incidents  of 
ownership  as  any  other  private  proprietor,  e,xcept  as  to  taxation;  and 
that  they  can  only  exercise  their  rights  in  the  mines  in  subordination 
to  the  general  laws  on  that  subject  of  California.  Boggs  v.  Merced  Co., 
14  Cal.  375.     See  Lorenz  v.  Baker   (Ala.  1904),  37  So.  Rep.  637. 

6  Dubuque  R.  R.  v.  Litchfield,  23  How.  88;   Townsend  v.  Brown,  24 
N.  J.  L.  80;  Green's  Estate,  4  Md.  Ch.  349;  Hagan  v.  Campbell,  8  Port, 
9.     "  A  grant  of  public  land  must  be  construed  in  favor  of  the  grantor." 
Story  V.  Woolverton  (Mont.  1904),  78  Pac.  Rep.  589. 
740 


CH.    XXII.]  TITLE   BY   PUBLIC   GRANT,  §    520 

the  State  is  for  a  valuable  consideration  this  rule  of  construc- 
tion does  not  apply,  unless  the  ambiguity,  arising  on  the  face 
of  the  grant  is  absolutely  inexplicable.*  Nevertheless,  if  the 
State  grants  an  estate  upon  condition,  the  breach  of  the  condi- 
tion ^\'ill  at  once  divest  the  title  without  the  necessity  of  an 
entry.'^  The  State  is  not  subject  to  estoppel  under  a  covenant 
of  warranty ;  it  is  estopped  only  by  the  description  contained 
in  a  valid  grant.® 

§  520.  Forms  of  public  gprant. —  The  grant  is  not  required 
to  assume  any  particular  form.  It  may  be  made  by  special  act 
of  Congress,  or  by  deed  made  in  pursuance  of  some  general! 
act.  But  the  public  lands  of  the  United  States  can  only  be 
disposed  of  by  authority  of  Congress,  expressed  in  a  special 
or  general  act.®  Congress  has  passed  general  laws  providing 
for  the  sale  of  public  lands.  These  laws  provide  for  the  es- 
tablishment of  land  offices  in  the  Western  and  other  States 
where  the  general  government  still  owns  large  tracts  of  land, 
and  the  would-be  purchaser  is  required  to  make  his  negotia- 
tions with  the  registers  and  receivers  of  these  offices.  The 
purchaser  enters  upon  the  records  of  the  office  a  full  and  com- 
plete description  of  the  land  he  desires  to  purchase,  and  hav- 
ing paid  the  purchase-money,  he  receives  from  the  register  a 
certificate  of  entry,  as  it  is  called,  which  entitles  him  to  a 
patent,  which  is  the  formal  deed  of  conveyance  required  by 
the  general  laws  for  the  transfer  of  the  legal  title.    The  pat- 

« Martin  v.  Waddell,  16  Pet.  411;  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  58fl;  Commonwealth  v.  Roxbury,  9  Gray  492;  Hyman  v. 
Read,  16  Cal.  444.  See  Story  v.  Woolverton  (Mont.  1904),  78  Pac 
Rep.  589. 

T  Kennedy  v.  McCartney,  4  Port.  141. 

8  Mayor,  etc.,  r.  Ohio  &  P.  R.  R.,  26  Pa.  St.  .355;  Elmendorf  v.  Car- 
michaei,  3  Litt.  472;  State  v.  Crutchfield,  3  Head  113. 

»Lorrimer  v.  Lewis,  1  Morris  (Iowa)  253;  Pratt  V.  Brown,  3  Wis. 
603;  Challefoiix  V.  Ducharme,  8  Wis.  306;  Foley  v.  Harrison,  5  La. 
An.  7»;  Freedman  v.  Goodwin,  1  McAll.  Ch.  142;  Terrett  v.  Taylor,  9 
Cranch  50;  Chouteau  v.  Eckhart.  2  How.  372;  Wilkinson  v.  Leland,  2 
Pet,  662;  Strother  v.  Lucas,  12  Pet,  464. 

741 


§    521  TITLE   BY   PUBLIC   GRANT.  [PART    III. 

ent  is  signed  by  the  President,  or  by  one  authorized  to  affix 
his  signature,  and  sealed  with  the  seal  of  the  United  States.^" 

§  521.  The  relative  value  of  the  patent  and  certificate  of 
entry. —  According  to  some  of  the  cases  arising  in  the  State 
courts,  the  certificate  of  entry  vests  an  inchoate  or  imperfect 
legal  title  in  the  vendee,  which  will  enable  him  to  maintain 
ejectment  or  trespass  against  a  trespasser,  and  that  the  patent 
is  merely  the  perfection  of  the  imperfect  legal  title  already 
acquired,  by  providing  the  strongest  kind  of  evidence  of  the 
previous  grant."  But  the  United  States  courts  maintain  that 
the  purchaser  only  acquires  an  equitable  title,  which  is  not 
sufficient  to  support  legal  actions  in  defense  of  the  land,  but 
which  is  sufficient  to  vest  in  him  an  absolute  right  to  the  pat- 
ent. Once  a  certificate  of  entry  has  been  lawfully  issued,  the 
same  land  cannot  be  subsequently  sold.^^  This  distinction  be- 
tween a  patent  and  a  certificate  of  entry  is  so  well  and  gener- 
ally recognized  that  where  a  patent  has  been  issued  to  one  per- 
son, and  another  is  entitled  to  the  patent  by  virtue  of  the  prior 
entry  and  certificate,  the  patentee,  nevertheless,  holds  the  ab- 

103  Washburn  on  Real  Prop.  185;  People  v.  Livingston,  8  Barb.  253; 
Doe  V.  Mcllvaine,  14  Ga.  252;  Hulick  v.  Scovil,  9  111.  174.  Once  the 
patent  has  been  legally  executed  and  delivered  it  cannot  be  revoked. 
Fletcher  v.  Peck,  6  Cranch  87;  Grignon  v.  Astor,  2  How.  319;  Doe  v. 
Beardsley,  2  McLean  412;  Stockton  v.  Williams,  1  Dougl.  (Mich.)  546. 
See  Southold  v.  Parks,  90  N.  Y.  S.  1116,  97  App.  Div.  636.  For  pro- 
cedure to  procure  patent  to  mineral  upon  the  public  land  of  the 
United  States,  see  White,  Mines  &  Min.  Rem.,  Ch.  3,  and  Government 
and  State  statutes  and  decisions  cited. 

11  Sims  V.  Irvine,  3  Dall.  456;  Carman  v.  Johnson,  29  Mo.  94;  Forbes 
V.  Hall,  34  HI.  167;  McDowell  v.  Morgan,  28  111.  532;  Waterman  V. 
Smith,  13  Cal.  419.  See,  also,  Copley  v.  Riddle,  2  Wash.  C.  Ct.  3,54; 
Sweatt  V.  Corcoran,  37  Miss.  516;  Dickinson  V.  Brown,  9  Smed.  &  M. 
130;  Peterson  v.  Sloss  (Wash.  1905),  81  Pac.  Rep.  744. 

"Fenn  v.  Holme,  21  How.  481;  Bagnell  v.  Broderick,  13  Pet.  436; 
Lindsey  v.  Miller,  6.  Pet.  666;  Fletcher  v.  Peck,  6  Cranch  87;  Mayor 
f.  DeArmas,  9  Pet.  223;  Carman  v.  Johnson,  20  Mo.  108;  Nelson  v. 
Sims,  23  Miss.  383;  Astrom  v.  Hammond,  3  McLean  107  j  West  V. 
Hughes,  1  Harr.  &  J.  6;  Cavender  v.  Smith,  5  Iowa  189. 
742 


CH.  xxil]  title  by  public  grant.  §  521 

solute  legal  title  until  the  patent  has  been  avoided  by  a  direct 
proceeding  brought  for  that  purpose  by  the  government,  or  by 
the  rightful  owner  in  its  name.  The  patent  in  collateral  pro- 
ceedings is  conclusive  evidence  of  title,  and  cannot  then  be 
questioned,  unless  it  be  void  upon  its  face.^^  Nor  can  the  pat- 
ent be  attacked  and  avoided  by  one  who  claims  a  superior 
right  to  the  land  by  a  prior  entry,  after  the  patentee  has  sold 
to  a  bona  fide  purchaser.^*  But  the  courts  all  agree  that  the 
certificate  of  entry  vests  in  the  purchaser  sufficient  title, 
whether  legal  or  equitable,  so  that  it  can  be  aliened  or  devised ; 
and  upon  the  death  of  the  purchaser  before  the  issue  of  the 
patent  it  descends  to  his  heirs;  and  the  purchaser's  alienee, 
devisee  and  heirs,  respectively,  are  entitled  to  the  patent,  in 
the  place  of  the  person  to  whom  the  certificate  has  been- 
given.^*  But  where  the  purchaser  has  died  the  patent  must  be 
made  out  in  the  name  of  the  heirs.  A  patent  issued  in  the  name 
of  a  purchaser,  in  pursuance  of  a  certificate  of  entry,  but  after 
the  death  of  the  purchaser,  is  void,  and  the  heirs  cannot  take 
advantage  of  it."     And  where  a  purchaser  has  assigned  his 

i3Bagnell  17.  Broderick,  13  Pet.  436;  Hill  V.  Miller,  36  Mo.  182; 
Stringer  17.  Young,  3  Pet.  320;  Boardman  V.  Reed,  6  Pet.  328;  Curie 
17.  Barren,  2  Sneed.  68;  Willot  v.  Sandford,  19  How.  79.  See  Brush 
f.  Ware,  15  Pet.  93;  Sweatt  17.  Corcoran,  39  Miss.  516;  Harris  17.  Mc- 
Kissack,  34  Miss.  464;  Dickinson  17.  Brown,  9  Smed.  &  M.  130;  Maxcy 
V.  O'Connor,  23  Texas  238;  United  States  v.  Clark,  138  Fed.  Rep.  294; 
Schebrede  v.  State  Land  Board  (Or.  1905),  81  Pac.  Rep.  702. 

1*  Bobbins  17.  Moore,  129  111.  30;  United  States  17.  Clark,  138  Fed. 
Rep.  294. 

15  Gait  V.  Galloway,  4  Pet.  332;  Brush  17.  Ware,  15  Pet.  93;  Reeder 
r.  Barr,  4  Ohio  458;  Adams  V.  Logan,  6  B.  Mon.  175;  Shanks  17.  Lucas, 
4  Blackf.  476;  Goodlet  17.  Smithson,  5  Port.  243;  Wright  t;.  Swan,  6 
Port.  84;  Forsythe  17.  Ballance,  6  McLean  562. 

J8  Galloway  17.  Finley,  12  Pet.  264;  Blankenpickler  17.  Anderson's 
Heirs,  16  Gratt.  59;  Wood  t7.  Ferguson,  7  Ohio  St.  288;  Phillips  v.  Sher- 
man, 36  Ala.  189.  Contra,  Schedda  17.  Sawyer,  4  McLean  181.  See 
Thomas  17.  Wyatt,  25  Mo.  24;  Thomas  17.  Boerner,  25  Mo.  27.  But  by 
the  act  of  Congress  of  1836,  if  the  patent  is  issued  to  a  deceased  per- 
son, in  ignorance  of  his  death,  it  will  inure  to  the  benefit  of  his  heirs. 
Phillips  17,  Sherman,  36  Ala.  189;  Stubblefield  t'.  Boggs,  2  Ohio  St.  216. 

743 


§    522  TITLE   BY    PUBUC    GRANT.  [PAKT    HI. 

certificate,  and  takes  out  a  patent  in  his  own  name,  he  will 
hold  the  legal  title  thus  acquired  in  trust  for  his  assignee, 
and  he  can  be  required  to  make  the  proper  conveyances." 
But  in  such  a  case,  there  must  be  a  correspondence  of  the  de- 
scriptions of  the  lands  in.  the  patent  and  in  the  conveyance." 
In  all  cases,  in  order  to  entitle  one  to  a  patent,  the  land  must 
be  clearly  described  in  the  certificate  of  entry,  so  as  to  enable 
an  easy  identification  of  the  land.  An  inaccurate  or  obscure 
description  would  bar  the  right  to  a  patent."* 

§  522.  Pre-emption. —  In  order  to  encourage  immigration 
and  the  actual  settlement  upon  public  lands,  the  acts  of 
Congress,  from  an  early  day,  have  provided  that  where  one 
actually  settles  upon  public  lands,  and  makes  entry  upon 
the  records  of  the  land  office  of  his  claim,  with  accurate 
description  of  the  land  upon  which  he  has  settled,  he  ac- 
quires thereby  the  so-called  "pre-emption"  right,  which  en- 
titles him  to  a  patent  to  the  land  so  occupied  at  the  minimum 
price  fixed  by  law  for  the  sale  of  public  lands,  and  gives  him 
a  superior  claim  to  a  patent  over  all  other  persons  who  may 
acquire  interests  in  the  same  land.-**  One  cannot  claim  the 
pre-emption  right  to  more  than  one  quarter  section,  or  one 
hundred  and  sixty  acres. ^^  But  no  one  can  claim  pre-emption 
to  lands  which  have  been  set  apart  as  a  reservation,  or  to 
lands  which  are  situated  within  the  limits  of   a   town  or 

"Trimble  r.  Boothby,  14  Ohio  109;  Moore  v.  Maxwell,  18  Ark.  469; 
Hennen  v.  Wood,  16  La.  An.  263.  "  A  homestead  entryman  has,  after 
making  final  proof,  an  equitable  title  to  the  land  entered  on,  which  may 
be  transferred  by  him."  Peterson  v.  Slosa  (Wash.  1905),  81  Pac.  Rep. 
744. 

18  Prentice  v.  Northern  Pac.  R.  R.  Co.,  43  Fed.  Rep.  270. 

i»  Lafayette  v.  Blanc,  11  How.  104;  Ledoux  r.  Black,  18  How.  473. 

20  3  Washburn  on  Real  Prop.  200;  U.  S.  Rev.  Stat.,  Sees.  2256,  2257; 
Tnited  States  t\  Fitzgerald,  15  Pet.  407 ;  Craig  v.  Tappin,  2  Sandf.  Ch. 
78;  McAfee  v.  Keirn,  7  Smed.  &  M.  780;  Brown  v.  Throckmorton,  11 
111.  529. 

21  U.  S.  Rev.  Stat.,  Sec.  2259.  See,  also,  U.  S.  Comp.  St.  1901,  pp. 
1611,  1388,  1389. 

744 


CH.   XXII.]  TITLE  BY  PUBLIC   GRANT.  §   52^ 

city,  or  those  on  which  persons  have  actually  settled  for 
the  purpose  of  carrying  on  any  business  or  trade,  other 
than  agriculture,  or  on  which  there  are  known  salt  or  other 
mines.^^  And  in  order  to  entitle  one  to  pre-emption,  he  must 
make  oath  that  he  does  not  own  three  hundred  and  twenty- 
acres  of  land  in  any  State  or  Territory,  and  that  he  has 
not  abandoned  a  residence  on  his  own  land  within  the  same 
State  or  Territory,  in  order  to  reside  upon  the  public- 
lands.'''  By  the  entry  in  the  land  oflEice,  and  actual  settle- 
ment upon  the  land,  only  an  inchoate  title  is  acquired.  Tf> 
perfect  it,  and  obtain  an  absolute  legal  title,  payment  of  the- 
purchase-money  must  be  made  within  thirty  months  after  the 
entry.^*  This  inchoate  title  descends  to  the  heirs  of  the  pre- 
emptor.^'  But  it  cannot  be  assigned  so  as  to  give  the  assignee 
a  right  to  the  pre-emption,  as  against  the  government,  or 
one  claiming  under  a  patent.^®  But  where  the  pre-emptor 
has  undertaken  to  convey  before  he  has  acquired  the  legal 
title,  he  will  take  the  patent  as  trustee  for  the  assignee,  and 
the  latter  will  acquire  the  benefit  of  it  by  instituting  the 
proper  proceedings.^^  In  like  manner,  creditors  cannot  levy 
upon  the  pre-emption  right.''*  Very  often  conflicting  claims 
arise  under  the  exercise  of  the  pre-emption  right,  growing- 
out  of  deficient  locations  and  entries;  and  it  is  provided  by 
the  acts  of  Congress  that  these  disputes  shall  be  settled  by 
the  land  commissioners  and  registers.  In  the  settlement 
of  these  disputes,  the  commissioners  act  in  a  judicial  capacity 

22  U.  S.  Rev.  Stat.,  Sec.  2258 -Act  Cong.  March  3,  1893,  c.  208,  27 
Stat.  555.  See  White,  Mines  &  Min.  Rem.,  Ch.  3.  See  State  v.  Tanner 
(Neb.   1905),  102  N.  W.  Rep.  235. 

28  U.  S.  Rev.  Stat.,  Sees.  2260,  2262. 

24  U.  S.  Rev.  Stat.,  Sec.  2267. 

25  Hunt  V.  Wickliff,  2  Pet.  201 ;  Johnson  v.  Collins,  12  Ala.  322 

2«  U.  S.  Rev.  Stat.  Sec.  2263 ;  Craig  V.  Tappin,  2  Sandf.  Ch.  78 ;  Lytic- 
r.  Arkansas,  9  How.  333;  Barnard's  Heirs  V.  Ashley's  Heirs,  18  How. 
44;  Myers  V.  Croft,  13  Wall.  291;  Frisbie  v.  Whitney,  9  Wall.  187;. 
Hutchins  v.  Jjow,  15  Wall.  77;  Phelps  v.  Kellogg,  15  111.  131. 

27  Camp.  r.  Smith,  2  Minn.  155;  Delaunay  v.  Burnett,  9  111.  454. 

28Rodgers  v.  Rawlins,  8  Port.  326. 

745 


§    522  TITLE   BY   PUBLIC   GRANT.  [PART   III. 

and  their  decisions  are  subject  to  appeal  to  the  higher 
authorities,  but  otherwise  they  are  final  and  conclusive,  unless 
tainted  with  fraud." 

2»See  Barnard's  Heirs  v.  Ashley's  Heirs,  18  How.  43;  Garland  v. 
Wynn,  20  How.  6 ;  Tate  V.  Carney,  24  How.  357 ;  State  V.  Batchelder,  1 
Wall.  109.  See  Small  v.  Rakestrow,  196  U.  S.  403;  Smith  v.  Finger 
(Okl.  1905),  79  Pac.  Rep.  759;  Le  Fevre  v.  Amonson  (Idaho  1905),  81 
Pac.  Rep.  71;  Hartwell  v.  Harigshorst,  196  U.  S.  635. 
746 


SECTION  II. 

TITLE    BY    INVOLUNTARY     ALIENATION. 

Section  523.  Title  by  involuntary  alienation,  what  ia? 

524.  Scope  of  legislative  authority. 

525.  Eminent  domain. 

526.  Persons  under  disability. ' 

527.  Confirming  defective  titles. 

528.  Sales  by  administrators  and  executors. 

529.  Sales  under  execution. 

530.  Sales  by  decree  of  chancery. 

531.  Tax-titles. 

532.  Validity  of  tax-title. 

533.  Judicial  sales  for  delinquent  taxes. 

§  523.  Title  by  involuntary  alienation,  what  is?  —  Under 
the  head  of  title  by  involuntary  alienation  are  included  all 
the  modes  of  transferring  one  man's  title  to  lands  to  another, 
against  his  will  or  without  his  co-operation.  Circumstances 
often  arise,  when  such  alienation  is  necessary  to  attain  the 
ends  of  justice.  The  kinds  of  involuntary  alienation  are  so 
numerous,  and  they  are  so  largely  regulated  by  varying  local 
statutes  that  in  so  limited  a  work  as  the  present  it  will  be 
impossible  to  do  more  than  give  a  general  outline  and  classi- 
fication of  these  modes  of  conveyance,  and  present  the  salient 
features  of  each. 

§  524.  Scope  of  legislative  anthority. —  Except  the  power, 
which  the  court  of  chancery  possesses  in  certain  cases,  and 
which  will  be  explained  in  the  proper  place,  the  power  to 
effect  an  involuntary  alienation  rests  upon  legislative  enact- 
ment. As  a  general  proposition,  the  Legislature  cannot  divest 
one  of  his  vested  rights  against  his  will.  It  can  enact  laws 
for  the  control  of  property  and  of  its  disposition,  but  it  can- 
not take  the  private  property  of  one  man  and  give  it  to 

747 


§   524  INVOLUNTARY  ALIENATION.  [PART  III. 

another.^**  But  there  are  certain  well-known  exceptions  to 
this  general  rule,  where  the  interference  of  the  Legislature 
is  necessary  to  save  and  protect  the  substantial  interests  of 
individuals  on  account  of  their  own  inability  to  do  so,  or  to 
promote  the  public  good.  In  some  of  the  State  Constitutions 
there  is  a  provision  against  the  enactment  of  special  laws 
operating  upon  particular  individuals  or  upon  their  property. 
In  those  States,  therefore,  involuntary  alienation  can  only  be 
effected  by  a  general  law,  applicable  to  all  persons  under  like 
circumstances.  But  in  the  absence  of  such  a  constitutional 
provision,  the  transfer  of  lands  may  be  made  by  special  act 
of  the  Legislature,  as  well  as  under  a  general  law.^^  But 
wherever  such  a  transfer  by  special  act  of  the  Legislature 
would  involve  the  assumption  of  judicial  power,  it  would  be 
generally  held  void,  under  the  common  constitutional  provi- 
sion which  denies  to  the  Legislature  the  exercise  of  such 
powers.^^  The  cases  in  which  the  Legislature  may  provide 
for  involuntary  alienation  may  be  divided  into  the  following 
six  general  classes:  1.  In  the  exercise  of  the  right  of  eminent 
domain.  2.  In  the  case  of  persons  under  disability  to  pro- 
tect their  interests  by  sale  and  investment.  3.  For  confirm- 
ing defective  titles.     4.  Sales  by  administrators  and  executors. 


30  Wilkinson  v.  Leland,  2  Pet.  658;  Adams  v.  Palmer,  51  Me.  494; 
Commonwealth  v.  Alger,  7  Cush.  53;  Varick  v.  Smith,  5  Paige  159; 
John  and  Cherry  Street,  19  Wend.  676;  Taylor  v.  Porter,  4  Hill  147; 
Russell  V.  Rumsey,  35  111.  374;  Good  v.  Zercher,  12  Ohio  368;  Deutzel  V. 
Waldie,  30  Cal.  144. 

31  Sohier  v.  Mass.  Gen.  Hospital,  3  Cush.  483 ;  Kibby  v.  Chitwood,  4 
B.  Mon.  95 ;  Edwards  V.  Pope,  4  111.  473.  "  The  disposition  of  property 
by  will  and  the  right  to  name  executors  are  not  vested  rights,  but  are 
regulated  and  controlled  by  statute."  hi  re  Avery's  Estate  (N.  Y.  Sur. 
1904),  92  N.  Y.  S.  974,  45  Misc.  Rep.  529;  In  re  American  Security  & 
Trust  Co.,  Id. 

32  Rice  V.  Parkman,  16  Mass.  326;  Jones  v.  Perry,  10  Yerg.  59;  Lane 
1'.  Dorman,  4  111.  238 ;  Edwards  v.  Pope,  4  111.  473.  "  The  interpretation 
of  a  law,  the  declared  purpose  of  which  is  to  establish  the  boundaries 
between  two  parishes,  is  a  judicial  function."  Parish  of  Caddo  v. 
Parish  of  Red  River  (La.  1905),  38  So.  Rep.  274. 

748 


CH.    XXII.]  INVOLUNTARY   ALIENATION.  §    525 

5.  Sales  under  execution.     6   Sales  to  satisfy  the  claim  of 
the  State  for  taxes. 

§  525.  Eminent  domain. —  As  already  explained  in  the 
third  chapter,  all  real  property  is  held  subject  to  the  exercise 
of  the  right  of  eminent  domain.  Whenever  it  is  necessary 
or  beneficial  to  the  public  that  certain  lands  shall  be  appro- 
priated for  public  use,  the  State  through  the  Legislature  has 
the  right  to  confiscate  such  land  upon  payment  of  a  proper 
compensation  therefor  to  the  owner  of  the  land.^^  The  State 
may  exercise  the  right,  or  it  may  authorize  a  corporation  of 
a  public  character,  such  as  railroads,  turnpike  companies,  etc., 
to  exercise  it.**  But  the  corporation  must  be  one  in  whose 
maintenance  the  public  is  interested,  and  from  whose  existence 
the  public  is  to  derive  a  benefit.  The  State  cannot  authorize 
a  private  individual  or  a  strictly  private  corporation  to  take 
the  lands  of  another  with  or  without  compensation.*'* 

33  Haskell  V.  New  Bedford,  108  Mass.  214;  Commonwealth  V.  Alger,  7 
Cush.  92;  Clarke  v.  Rochester,  24  Barb.  481;  Carson  v.  Coleman,  11 
N.  J.  Eq.  108;  Moose  V.  Carson,  104  N.  C.  431,  10  S.  E.  Rep.  689. 

3*Cushman  v.  Smith,  34  Me.  247;  Bloodgood  v.  Mohawk  &  H.  R.  R., 
18  Wend.  9;  Matter  of  Townsend,  39  N.  Y.  171;  Burt  V.  Merchants' 
Ins.  Co.,  106  Mass.  356;  Orr  V.  Quimby,  54  N.  H.  590;  Gilmer  v.  Lima 
Point,  18  Cal.  229. 

35  Wilkinson  v.  Leland,  2  Pet.  658;  Adams  V.  Palmer,  51  Me.  494; 
Commonwealth  v.  Alger,  7  Cush.  53;  Flagg  v.  Flagg,  16  Gray  180; 
Wild  V.  Deig,  43  Ind.  455,  13  Am.  Rep.  404;  Gillan  v.  Hutchinson,  16 
Cal.  156.  Since  it  is  not  imposed  upon  the  State  as  a,  public  duty  to 
erect  and  maintain  light-houses  it  cannot  appropriate  lands  for  such  a 
purpose;  but  the  United  States  may  do  so,  and  the  only  power  the  State 
has  is  to  cede  jurisdiction  to  the  United  States  over  the  land  thus 
taken.  Burt  v.  Merchants'  Ins.  Co.,  106  Mass.  360;  People  v.  Hum- 
phrey, 23  Mich.  471.  In  like  manner  the  State  may  grant  to  the 
United  States  the  authority  to  appropriate  lands  for  the  erection  of 
post-offices  and  other  public  buildings.  Burt  v.  Merchants'  Ins.  Co.,  108 
Mass.  356;  Orr  v.  Quimby,  64  N.  H.  590;  Gilmer  v.  Lime  Point,  18  Cal." 
229.  The  statutes  of  Utah,  giving  a  private  individual  the  right  to 
condemn  his  neighbor's  land  for  irrigation  purposes,  is  upheld  by  the 
Supreme  Court,  on  account  of  the  local  conditions  in  Utah  and  the  in- 
terests of  the  public  in  the  development  of  the  arid  lands  of  the  State. 

749 


§    527  INVOLUNTARY   ALIENATION.  [PART  m. 

§  526.  Persons  under  disability. —  Where  persons  are  under 
a  legal  disability  which  prevents  them  from  making  a  valid 
sale  of  their  property,  and  such  sale  and  reinvestment  of  the 
proceeds  of  sale  are  necessary  for  the  conservation  of  their 
interests,  the  State,  in  the  capacity  of  parens  patricB,  has  the 
power  to  authorize  a  sale  by  the  guardians  of  such  persons. 
This  may  be  done  by  special  act  or  by  a  general  law.^*"  The 
property  of  persons  who  are  not  under  a  disability  cannot 
be  sold  by  authority  of  the  courts,  on  the  ground  that  such 
a  sale  would  be  beneficial.'^  In  most  of  the  States  there  are 
general  laws  authorizing  the  courts  to  empower  the  guardians 
of  minors,  lunatics,  apd  other  persons  under  disability,  to 
make  sale  of  the  real  property  of  such  persons.  Generally 
the  sales  are  made  under  special  orders  of  the  court,  and 
in  making  the  conveyance  the  deed  should  contain  recitals  of 
all  the  preliminary  proceedings,  which  are  necessary  to  the 
effectual  transfer  of  the  title;  but  these  recitals  are  not 
absolutely  necessary,  provided  the  deed  shows  on  its  face  in 
what  capacity  the  grantor  executes  the  deed.^* 

§  527.  Confirming  defective  titles. —  Generally,  when  a  title 
is  defective  through  some  informality  in  the  execution  of  the 
conveyance,  upon  a  proper  case  being  made  out,  the  court 
of  equity  will  afford  an  ample  remedy  by  decreeing  a  reforma- 
tion of  the  instrument.'®     But  cases  do  arise  where,  through 

Nash  V.  Clark,  27  Utah  158,  101  Amer.  St.  Rep.  953,  75  Pac.  Rep.  371, 
198  U.  S.  361,  49  L.  Ed.   1058. 

36  Sohier  v.  Mass.  Gen.  Hospital,  16  Mass.  326;  s.  c,  3  Cush.  483; 
Davidson  v.  Johonnot,  7  Mete.  395;  Cochran  v.  Van  Surlay,  20  Wend. 
365 ;  Estep  V.  Hutchman,  14  Serg.  &  R.  435 ;  Doe  v.  Douglass,  8  Blaekf . 
10 ;  Jones  V.  Perry,  10  Yerg.  59. 

37  Wilkinson  v.  Leland,  2  Pet.  658;  Adams  v.  Palmer,  51  Me.  494; 
Irvine's  Appeal,  16  Pa.  St.  256;  Palairit's  Appeal,  67  Pa.  St.  479. 
In  re  Bryden's  Est.  (Pa.  1905),  61  Atl.  Rep.  250. 

38.3  Washburn  on  Real  Prop.  210,  211.  In  re  Kimble  (Iowa  1905), 
103  N.  W.  Rep.  1009. 

39  Adams  v.  Stevens,  49  Me.  362;  Brown  v.  Lamphear,  35  Vt.  260: 
Metcalf  V.  Putnam,  9  Allen  97;  Conedy  v.  Marov,  13  Gray  373;  Keene's 
750 


CH.    XXU.]  INVOLUNTARY   ALIENATION.  §    528 

the  absence  or  death  of  the  parties,  or  through  a  want  of 
knowledge  as  to  who  they  are,  it  is  impossible  to  obtain 
a  reformation  in  chancery,  and  even  in  cases  where  the  equi- 
table remedy  is  only  troublesome  and  inconvenient,  and  the 
defect  is  only  an  informality,  which  does  not  go  to  the 
essence  of  the  conveyance,  and  which  does  not  create  any 
doubt  as  to  the  intention  to  make  a  valid  conveyance,  the 
power  of  the  Legislature  to  interfere  and  cure  the  defect  by 
special  act  has  generally  been  sustained  by  the  courts  of 
those  States,  where  special  acts  are  not  inhibited  by  the 
Constitution.  Thus  the  defective  certificate  of  a  wife's  ac- 
knowledgment has  been  perfected  by  special  act.*" 

§  528.  Sales  by  administrators  and  execntors. —  Where  one 
dies  without  having  made  provisions  for  such  contingencies, 
it  is  often  necessary  that  some  one  should  be  authorized  to 
make  a  sale  of  the  lands,  for  the  purpose  of  making  an  effec- 
tive administration,  and  to  protect  and  satisfy  the  claims  of 
those  who  are  interested  in  the  property.  If  the  deceased 
leaves  a  will  he  very  often,  perhaps  generally,  empowers  the 
executor  to  make  sale  of  the  land.  Where  the  executor  has 
this  testamentary  power,  his  sales  are  presumed  to  be  under 
this  power,  and  there  is  no  need  of  a  resort  to  the  statutory 
power.*^  But  these  express  testamentary  powers  are  supple- 
mented by  statutes,  which  authorize  courts  of  probate  to 
order  a  sale  of  the  decedent's  lands  by  the  administrator  or 

Appeal,  64  Pa.  St.  274;  Mills  V.  Lockwood,  42  111.  Ill;  Gray  V.  Horn- 
beck,  31  Mo.  400.  "  A  lease  executed  under  a  mutual  mistake  may  be 
reformed."  RaneUi  V.  Zeppetelli  (N.  Y.  Sup.  1905),  94  N.  Y.  S.  561. 
"  Errors  of  description  in  deeds  to  real  estate  may  be  corrected  as 
between  the  parties."     Penn  v.  Rodriguez   (La.  1905),  38  So.  Rep.  955. 

<o  Wilkinson  v.  Leland,  2  Pet.  627 ;  s.  c,  10  Pet.  294 ;  Watson  v.  Mer- 
cer, 8  Pet.  88;  Kearney  v.  Taylor,  15  How.  494;  Adams  v.  Palmer,  51 
Me.  494.  See  Florentine  v.  Barton,  2  Wall  210;  Jones  v.  Perry,  10 
Yerg.  59.  But  a  defective  tax-title  cannot  be  made  good  by  legislative 
enactment.     Conway  v.  Cable,  37  111.  82. 

« I  Payne  v.  Payne,  18  Cal.  291;  White  t;.  Moses,  21  Cal.  44.  See 
Burnes  v.  Bumes   (Mo.  1905),  137  Fed.  Rep.  781. 

751 


5    529  INVOLUNTARY   ALIENATION.  [PART   III. 

«xecutor,  whenever  necessary  to  the  full  performance  of  his 
-duties.  Thus,  if  the  personal  property  is  not  sufficient  to 
satisfy  all  the  debts,  the  administrator  or  executor  may,  under 
order  of  the  court,  make  a  valid  sale  of  the  lands,  and  the 
proceeds  of  the  sale  will  constitute  in  his  hands  a  trust  fund, 
out  of  which  the  claims  of  the  creditors  must  be  satisfied.** 
A  sale  may  be  authorized  by  special  act  of  the  Legislature, 
as  well  as  by  order  of  the  court  under  a  general  law.*^  In 
all  these  cases  the  deed  of  conveyance  should  contain  recitals 
of  the  compliance  with  all  the  requirements  of  the  statute 
•as  to  the  preliminary  proceedings,  although  perhaps  such  re- 
citals are  not  absolutely  necessary  to  the  validity  of  the  con- 
Teyance,  if  the  authority  of  the  grantor  to  make  the  con- 
ireyance  appears  otherwise  on  the  face  of  the  deed.** 

§  529.  Sales  under  execution. —  By  the  early  common  law 
lands  were  inalienable  for  any  purpose,  and  they  could  not 
in  consequence  be  sold  to  pay  the  debts  of  the  owner.  But  as 
trade  and  commerce  increased,  it  became  necessary  that  the 
•creditors  should  be  provided  with  means  for  satisfying  their 
•claims  by  compulsory  process  against  the  debtor's  property. 
In  compliance  with  the  popular  demand,  the  statutes  merchant 
and  statutes  staple  were  passed,  which  created  in  the  creditors 
an  estate  in  the  debtor's  lands  whereby  he  was  entitled  to 
■enter  into  possession  and  satisfy  himself  out  of  the  rents 
and  profits.***  These  statutes  have  been  abolished  in  Eng- 
land, where  they  have  been  superseded  by  the  writ  of  elegit, 

■*2  3  Washburn  on  Real  Prop.  209. 

«  Wilkinson  v.  Leland,  2  Pet.  627;  Watkins  V.  Holman,  16  Pet.  59; 
Sohier  v.  Trinity  Church,  109  Mass.  1;  Langdon  v.  Strong,  2  Vt.  234; 
■Kibby  V.  Chitwood,  4  B.  Mon.  95 ;  Shehan  v.  Barnett,  6  B.  Mon.  594. 

44  Campbell  v.  Knights,  26  Me.  224;  Doolittle  v.  Holton,  28  Vt.  819; 
Tlanters'  Bk.  v.  Johnson,  7  Smed.  &  M.  449;  Jones  v.  Taylor,  7  Texas 
"240 ;  White  V.  Moses,  2 1  Cal.  44.  "  A  sale  of  real  estate  by  an  admin- 
istrator under  an  order  and  decree  of  court  is  a  judicial  sale."  Pierce 
r.  Vansell  (Ind.  App.  1905),  74  N.  E.  Rep.  554;  Padeata  v.  Bims  (N.  J. 
Ch.  1905),  60  Atl.  Rep.  815. 

45  2  Bla.  Com.  161,   162. 

752 


CH.    XXII.]  INVOLUNTARY   ALIENATION.  §    529 

which  bears  such  a  close  resemblance  to  the  American  statutes 
of  execution  that  a  separate  discussion  of  its  principles  will 
not  be  necessary.  In  all  the  American  States  there  are 
statutes  which  provide  that  when  a  creditor  obtains  judgment 
against  his  debtor,  he  may  cause  a  writ  of  execution  to  be 
issued  against  the  property  of  the  debtor,  under  which  the 
sheriff  is  authorized  to  make  sale  of  the  real  property,  and  to 
execute  the  proper  deeds  of  conveyance.  The  interest  which 
the  creditor  acquires  in  his  debtor's  lands  under  the  execution 
is  so  far  a  vested  interest,  that  he  has  been  held  entitled  to 
the  crops  growing  on  the  land,  and  to  the  fixtures  attached 
thereto,  and  he  may  restrain  the  removal  of  either.**'  And 
Mr.  Washburn  calls  such  interests  estates  hy  execution."  But 
they  are  of  so  ephemeral  a  character  that  it  was  not  con- 
sidered necessary  to  discuss  them  in  an  independent  chapter. 
If  these  interests  can  be  called  estates,  they  are  a  species  of 
estate  upon  condition,  which  is  defeated  by  the  satisfaction 
of  the  judgment  and  made  absolute  by  sheriff's  sale. 
Where  the  property  has  been  sold  under  execution  to  a 
stranger  he  acquires  an  absolutely  indefeasible  title,  if  all 
the  requirements  of  the  statute  have  been  complied  with. 
And  where  the  judgment,  on  which  the  execution  was  issued, 
has  been  reversed  on  appeal,  his  title  remains  unaffected  by 
such  reversal.*'    Where  the  purchaser  is  a  party  to  the  judg- 

"Coolidge  V.  Melvin,  42  N.  H,  537;  Evans  v.  Roberts,  5  B.  &  C.  829; 
Penhallow  V.  Dwight,  7  Mass.  34 ;  Heard  v.  Fairbanks,  5  Mete.  Ill; 
Whipple  V.  Foot,  2  Johns.  423;  Pattison's  Appeal,  61  Pa.  St.  297;  Farrar 
V.  Chauffetete,  5  Denio  527.  See  Jones  v.  Rogers  (Miss.  1905),  38  So. 
Rep.  742;  Ullman  V.  Cameron,  93  N.  Y.  S.  976;  Poole  v.  French  (Kan. 
1905),  80  Pac.  Rep.  997. 

*^  2  Washburn  on  Real  Prop.  29. 

<8Feger  v.  Keefer,  6  Watts  297;  Taylor  v.  Boyd,  3  Ohio  337;  Gray 
V.  Brignordello,  1  Wall.  627 ;  Parker  V.  Anderson,  5  B.  Mon.  445. 
Contra,  Delano  V.  Wilde,  11  Gray  17.  "A  return  on  an  execution  does 
not  transfer  title,  but  only  gives  a  right  to  demand  a  deed  conveying 
title."  Jones  v.  Rogers  (Mi.s8.  1905),  38  So.  Rep.  742.  The  purchaser 
is  not  charged  with  a  knowledge  that  the  land  sold  was  a  homestead, 
in  Iowa.     Rosenberger  v.  Hawkins,  103  N.  W.  Rep.  781.     But  the  pur- 

48  753 


§    530  INVOLUNTARY   ALIENATION.  [PAF.T    in. 

ment  and  the  suit  under  it,  a  subsequent  reversal  would 
defeat*  his  title,  since  he  cannot  be  called  a  subsequent  pur- 
chaser without  notice.  And  in  all  cases  of  reversal  of  the 
judgment,  where  the  purchaser  acquires  an  indefeasible  title, 
the  debtor  may  have  his  action  for  damages  against  the  judg- 
ment creditor  for  the  injury  sustained  by  the  sale  of  the 
premises.*"  In  order  to  further  protect  the  creditor,  it  is 
provided  by  most  of  the  State  statutes  that  the  judgment, 
when  properly  docketed,  creates  a  lien  upon  all  the  debtor's 
real  property,  which  attaches  to,  and  binds,  the  land  into 
whosesoever  hands  it  may  come.  The  judgment  lien  enables 
the  creditor  to  sell  the  land  under  execution,  although  it  has 
been  conveyed  away  by  the  debtor  to  a  purchaser  for  value. 
But  to  make  a  valid  conveyance  in  the  case  of  a  sale  under 
execution,  the  requirements  of  the  statute  must  all  have  been 
complied  with,  and  usually,  as  in  the  case  of  sales  by  admin- 
istrators and  guardians,  the  deed  should  contain  recitals  of 
the  proceedings  taken.^" 

§  530.  Sales  by  decree  of  chancery. —  The  cases  are  numer- 
ous in  which  the  court  of  chancery  has  the  power  to  decree 

chaser   is   charged  with  notice  of  facts  shown  by  the  record.     Inter- 
national Co.  V.  Cichowicz,  114  111.  App.  121. 

49  2  Washburn  on  Real  Prop.  29;  Stinson  V.  Ross,  51  Me.  557. 

50  Jackson  v.  Roberts,  11  Wend.  425;  Weyand  v.  Tipton,  5  Serg.  &  R. 
332;  Doe  V.  Bedford,  10  Ired.  198;  Den  V,  Wheeler,  11  Ired.  288;  Ware 
V.  Bradford,  2  Ala.  676;  Minor  v.  President  of  Natchez,  4  Smed.  &  M. 
602;  Dunn  v.  Meriwether,  1  A.  K.  Marsh.  158.  The  return  of  the 
sheriff  of  his  proceedings  in  making  the  levy  is  conclusive  evidence  of 
the  facts  there  stated  in  respect  to  the  levy  between  the  debtor  and 
creditor  and  all  other  persons  claiming  under  them.  Bott  V.  Burnell, 
11  Mass.  163;  Whitaker  v.  Sumner,  7  Pick.  551.  And  the  recitals  of 
the  deed  cannot  be  contradicted  as  to  the  power  or  order  of  sale,  under 
which  the  sale  was  made,  by  showing  that  it  was  made  under  some  other 
power  or  order.  Jackson  v.  Croy,  12  Johns.  427;  Jackson  v.  Vander- 
heyden,  17  Johns.  167;  Jackson  17.  Roberts,  11  Wend.  425;  Snyder  v. 
Snyder,  6  Binn.  489.  See  Pullen  v.  Simpson  (Ark.  1905),  86  S.  W.  Rep. 
801;  London  v.  Morris  (Ark.  1905),  86  S.  W.  Rep.  672;  Armstead  v. 
Jones   (Kan.  1906),  80  Fac.  Rep.  66. 

754 


CH.    XXII.]  INVOLUNTARY   ALIENATION.  §    530 

a  sale  and  conveyance,  most  of  which  have  been  already 
incidentally  mentioned,  such  as  the  decree  of  sale  in  the  fore- 
closure of  a  mortgage,  in  the  enforcement  of  an  equitable 
lien,  or  in  making  an  involuntary  partition  of  joint  estates, 
and  the  like.  Chancery  has  also  the  power  to  subject  equitable 
estates  to  the  claims  of  creditors  by  the  institution  of  a 
guit  called  the  creditors'  bill.  But  all  these  subjects  belong 
more  properly  to  a  treatise  on  equity  jurisprudence  than  to 
one  on  real  property,  and  it  is  intended  to  make  here  only 
casual  mention  of  them.  In  all  these  cases,  originally,  the 
court  in  its  decree  ordered  the  holder  of  the  legal  title  or 
owner  of  the  land  to  make  the  proper  deeds  of  conveyance, 
upon  pain  of  being  punished  for  contempt  of  court.  If  the 
individual  was  obstinate,  or  beyond  the  jurisdiction  of  the 
court,  the  court  was  powerless  to  effect  a  conveyance.  A- 
decree  ordering  a  conveyance  did  not  and  could  not  pass  the 
title.*^  But  now  courts  of  equity  generally  possess  the 
power  to  authorize  some  officer  of  the  court,  usually  the 
master,  to  execute  the  necessary  deeds  of  conveyance,  and 
such  deeds  will  be  as  effectual  in  passing  an  indefeasible  title 
as  the  sheriff's  deed  under  execution.^^  Like  the  sheriff's  deed, 
if  an  apppeal  has  been  taken  from  the  decree,  and  during  the 
pendency  of  the  appeal  the  property  has  been  sold  and  con- 
veyed to  a  stranger,  the  title  which  he  thereby  acquires  will 
not  be  affected  by  the  subsequent  reversal  of  the  decree.  But 
if  the  purchaser  is  a  party  to  the  suit,  his  title  will  fail,  be- 
cause he  is  not  a  purchaser  without  notice.*^'  Like  other  modes 
of  involuntary  alienation,  the  master's  deed  under  an  equi- 
table decree  of  sale  must  show  the  proceedings  taken  and  the 
authority   for  making  the  sale,   although   recital*  of  these 


Bi  Ryder  v.  Innerarity,  4  Stew.  &  P.  14;  Mummy  v.  Johnston,  3  A.  K. 
Marsh.  220;  Sheppard  v.  Comm'rs  of  Ross  Co.,  7  Ohio  271. 

02  3  Washburn  on  Real  Prop.  219;  Vollenwender  v.  VoUenwender,  210 
111.  197,  74  N.  E.  Rep.  795. 

58GaIpin  v.  Page,   18  Wall.  360;  Jackson  v.  Cadwell,   1   Cow.  641; 
Gott  V.  Powell,  41  Mo.  416;  Reynolds  v.  Harris,  14  Cal.  667. 

755 


§    531  INVOLUNTARY    ALIENATION.  [PART   III. 

matters  do  not  seem  to  be  absolute^  necessary  to  the  validity 
of  the  conveyance.** 

§  531.  Tax-titles. —  The  power  of  taxation  is  an  essential 
incident  to  government;  without  it  the  maintenance  of  gov- 
ernment is  impossible.  Although  the  power  of  taxation 
generally  cannot  properly  be  considered  of  feudal  origin, 
yet  in  its  application  to  real  property  it  assumes  a  decidedly 
feudal  character.  If  the  power  to  tax  real  property  rested 
solely  upon  the  obligations  of  citizenship,  as  most  of  the 
authorities  seem  to  hold,^"*  then  it  could  only  be  levied  upon 
those  proprietors  of  lands  who  were  citizens.  As  a  matter 
of  fact,  all  lands  situated  within  the  jurisdiction  of  the  gov- 
ernment which  levies  the  tax  are  taxed  for  their  proportionate 
share.  The  levying  of  a  tax  upon  land,  and  the  enforcement 
of  the  levy,  are  proceedings  in  rem  against  the  land,  and  not 
in  personam  against  the  proprietors.*"  But  whatever  may  be 
the  proper  theory  in  respect  to  the  character  and  the  authority 
of  taxation,  the  government  has  not  only  the  right  to  levy 
the  taxes  necessary  for  the  support  of  the  government,  but 
also  to  provide  means  for  enforcing  the  levy.  In  respect  to 
the  collection  of  taxes  assessed  against  real  property,  with 
which  alone  we  are  here  concerned,  all  the  States  have  statu- 

5*  Atkins  V.  Kinnan,  20  Wend.  241;  Wood  v.  Mann,  3  Sumn.  318; 
Hamilton  v.  Crosby,  32  Conn.  347;  Tooley  v.  Kane,  1  Smed.  &  M.  Ch. 
518.  As  to  notice  of  facts  shown  by  the  record,  see  International  Co.  V. 
Cichowicz,  114  111.  App.  121. 

5"  Providence  Bk.  V.  Billings,  4  Pet.  561;  McCulloch  r.  Maryland,  4 
Wheat.  428;  Opinions  of  Judges,  58  Me.  591;  Clarke  i;.  Rochester,  24 
Barb.  482;  Phila.  Ass'n,  etc.,  v.  Wood,  39  Pa.  St.  73;  Davison  v.  Ram- 
say Co.,  18  Minn.  482. 

so  Cooley  on  Tax.  360.  In  some  of  the  States,  however,  a  distinction 
is  made  by  statute  between  resident  and  non-resident  lands,  as  they  are 
called,  imposing  a  personal  liability  upon  the  owners  of  the  resident 
lands.  Cooley  on  Tax.  278,  279.  "  In  general,  the  location  of  land, 
and  not  the  residence  of  the  owner  thereof,  detetmines  where  it  is  tax- 
able, and,  except  so  far  as  otherwise  provided  by  statute,  land  is  tax- 
able in  the  district  where  situated,  whether  a  school  or  a  tax  district." 
People  V.  Howell  (N.  Y.  Sup.  1905),  94  N.  Y.  S.  488. 

756 


CH.    XXII.]  INVOLUNTARY   ALIENATION.  §    532 

tory  provisions,  authorizing  certain  officers  of  the  government, 
after  the  lapse  of  the  proper  time,  and  by  instituting  the 
prescribed  preliminary  proceedings,  such  as  listing  and  adver- 
tising the  lands,  to  sell  the  lands,  upon  which  the  taxes  have 
not  been  paid,  to  the  highest  bidder,  usually  at  public  sale, 
and  to  appropriate  the  proceeds  of  sale,  or  so  much  thereof  as 
may  be  necessary  to  the  pajonent  of  the  taxes  due  and  the 
expenses  incurred  in  the  sale.  The  requirements  of  the  stat- 
utes, in  order  to  make  a  valid  sale  of  lands  for  unpaid  taxes, 
are  in  some  States  very  minute,  and  they  vary  in  detail  in 
every  State.  It  will  be  impossible  here  to  refer  to  the  details 
of  the  statutes,  or  of  the  decisions  upon  them.  A  discussion 
of  them  would  in  itself  constitute  a  volume  of  respectable  size. 
The  reader  is  therefore  referred  to  the  statutes  of  his  own 
State  and  the  decisions  upon  them  for  a  careful  study  of  the 
law  upon  tax-titles.  So  difficult  is  it  to  fulfil  all  the  require- 
ments of  the  law  in  respect  to  the  tax-titles,  that  the  investi- 
gator of  titles  always  looks  with  suspicion  upon  a  title  which 
depends  upon  a  tax-deed.  And  the  Superior  Court  of  New 
Hampshire  is  said  to  have  declared  ' '  that  a  tax-collector 's  deed 
was,  prima  facie,  void.'"'^ 

§  532.  Validity  of  a  tax-title. —  But  notwithstanding  the 
dubious  estimation  in  which  a  tax-deed  is  held,  if  all  the 
requirements  of  the  law  as  to  the  preliminary  proceedings 
have  been  complied  with,  the  tax-deed  conveys  an  absolute 
title,  and  the  purchaser  cannot  be  divested  of  it,  although  he 
may  have  paid  for  it  a  sum  altogether  disproportionate 
to  the  real  value  of  the  land.°*  IIow  far  it  is  necessary  to 
observe  all  the  minute  requirements  of  the  statute,  in  order 

57,3  Washburn  on  Real  Prop.  225.  See  Blair  v.  Johnson,  215  111.  552, 
74  N.  E.  Rep.  747;  Graton  v.  Land  &  Lumber  Co.  (Mo.  1905),  87  S.  W. 
Rep.  37. 

ssHardinp  r.  Tibbils,  15  Wis.  232;  Wofford  v.  McKinna,  23  Texas  43. 
"  The  title  of  the  purchaser  at  a  tax  sale  is  not  the  same  as  that  of 
*'•"  owner  in  whose  name  the  land  was  sold,  but  they  are  separate  and 
i.o^lilc  claims,"     State  v.  Harman  (W.  Va.),  50  S.  E.  Rep.  828. 

757 


§    532  INVOLUNTARY    ALIENATION.  [PART   UI. 

to  make  a  valid  sale  of  delinquent  lands,  is  not  clearly  set- 
tled by  the  courts.  Although  some  6t  the  decisions  seem  to 
go  to  the  length  of  requiring  a  strict  and  literal  compliance 
with  all  the  provisions  of  the  statute,  yet  the  better  opinion, 
which  seems  to  be  more  in  consonance  with  the  general  drift 
of  authority,  is  that  a  substantial  though  strict  compliance 
with  those  provisions  of  the  statute  which  are  intended  for 
the  protection  of  the  delinquent  proprietor,  is  all  that  is 
necessary ;  and  that  a  failure  to  follow  the  statutory  provisions, 
which  are  intended  for  the  benefit  of  the  State,  and  which 
does  not  affect  the  interests  of  the  proprietor,  will  not  vitiate 
the  purchaser's  title,  as  against  the  former  owner.**  In  all 
proceedings  at  common  law,  based  upon  the  forfeiture  for 
the  failure  to  perform  some  public  duty  in  which  the  title  to 
property  is  made  to  pass  from  the  delinquent,  the  burden  of 
proving  that  all  the  provisions  of  the  law  of  forfeiture  had 
been  strictly  complied  with  rests  upon  the  purchaser.  This 
rule  has  generally  been  applied  to  tax-sales,  and  the  deci- 
sions cited  below  °°  bear  out  Mr.  Blaekwell  in  his  descrip- 
tion of  a  tax-title,  viz. :  '  *  The  operative  character  of  the  deed 
depends  upon  the  regularity  of  the  anterior  proceedings.  The 
deed  is  not  the  title  itself,  nor  even  evidence  of  it.  Its 
recitals  bind  no  one.  It  creates  no  estoppel  upon  the  former 
owner.  No  presumption  arises  from  the  mere  production  of 
the  deed,  that  the  facts  upon  which  it  is  based  had  any  exist- 
ence. When  it  is  shown,  however,  that  the  ministerial  officers 
of  the  law  have  performed  every  duty  which  the  law  imposed 

59  Brown  v.  Veazie,  25  Me.  359;  Stevens  v.  McNamara,  36  Me.  176; 
Langdon  v.  Poor,  20  Vt.  15 ;  Wilson  V.  Bell,  7  Leigh  22 ;  Rubey  V.  Hunts- 
man, 32  Mo.  501;  Ferris  t;.  Coover,  10  Cal.  589.  See,  also,  Ingram  v. 
Sherwood's  Heirs   (Ark.  1905),  87  S.  W.  Rep.  435. 

80  Stead's  Ex'rs  V.  Course,  4  Cranch  402;  Williams  V.  Peyton's  Lessee, 
4  Wheat.  77 ;  Games  v.  Stiles,  14  Pet.  332 ;  Parker  v.  Overman,  18  How. 
142;  Little  V.  Herndon,  10  Wall.  26;  Jackson  v.  Shepard,  7  Cow.  88; 
Annan  v.  Baker,  49  N.  H.  161;  French  v.  Patterson,  61  Me.  203; 
Charles  v.  Waugh,  35  111.  315;  Elliott  v.  Eddins,  24  Ala.  508;  Doc  r. 
Ins.  Co.,  8  Smed.  &  M.  197;  Hamilton  V.  Burum,  3  Yerg.  355;  Fitch  V. 
Casey,  2  Greene  (Iowa)  300;  Bucknall  v.  Story,  36  Cal.  67. 
758 


CH.    XXII.]  INVOLUNTARY   ALIENATION.  §    533 

upon  them,  and  every  condition  essential  to  its  character,  then 
the  deed  becomes  conclusive  evidence  of  title  in  the  grantee 
according  to  its  extent  and  purport."'^  But  it  is  so  diffi- 
cult for  a  purchaser  to  prove  in  detail  the  performance  of  the 
preliminary  proceedings  required  by  the  statutes,  and  it  being 
the  policy  of  the  State  to  provide  an  effective  mode  of  selling 
lands  for  delinquent  taxes,  statutes  have  now  been  passed  in 
some  of  the  States  which  change  the  common-law  rule  of 
evidence  just  stated  and  throw  the  burden  of  proof  upon  the 
former  owner,  thereby  making  the  tax-deed  prima  facie  evi- 
dence of  title  and  of  a  compliance  with  the  requirements  of 
the  law.  The  power  of  the  Legislature  to  shift  the  burden 
of  proof  in  tax-titles  has  been  often  questioned,  but  it  is  now 
an  unquestionable  rule  of  law  that  the  Legislature  may  make 
the  tax  deed  prima  facie  evidence  of  title,  but  cannot  give  to 
it  and  its  recitals  the  force  of  a  conclusive  presumption,  that 
all  the  preliminary  proceedings  had  been  faithfully  carried 
out.«* 

§  533.  Judicial  sales  for  delinquent  taxes. —  The  cause  of 
the  uncertainty,  as  to  the  validity  of  a  tax-title,  lies  in  the 
fact  that  the  proceeding,  which  culminates  in  the  sale  of  the 
land,  is  generally  ex  parte,  no  opportunity  being  given  for 
determining  judicially  whether  the  taxes  are  due,  or  for 
properly  protecting  the  interests  of  the  delinquent.  In  order 
to  avoid  this  objectionable  feature  of  tax-sales,  in  some  of 
the  States,  ribtably  Illinois,  it  is  provided  by  statute  that  the 
tax-collector   must  institute  suit  against  the  delinquent  in 

61  Blackwell  Tax  Titles  430.  A  statute  curing  tax  deeds  will  not 
eflfect  a  deed  made  before  the  passage  of  the  statute.  State  v.  llarman 
(VV.  Va.),  50  S.  E.  Rep.  828. 

62  Pillow  r.  Roberts,  13  How.  472;  Orons  v.  Veazie,  57  Me.  517;  John- 
son V.  Elwood,  53  N.  Y.  435;  Hoffman  v.  Bell,  61  Pa.  St.  444;  Whit- 
ney V.  Marshall,  17  Wis.  174;  Abbott  v.  Lindenbower,  42  Mo.  162;  a.  c, 
46  Mo.  291;  Genther  v.  Fuller,  36  Iowa  604;  Ray  v.  Murdock,  36  Miss. 
692;  Bidleman  v.  Brooks,  28  Cal.  72;  State  v.  Harman,  50  S.  E.  Rep. 
828;  Keho  V.  Aud.  Gen.  (Mich.  1904),  101  N.  W.  Rep.  809. 

759 


§    533  INVOLUNTARY   ALIENATION.  [PAliT   lil. 

some  court  of  record,  usually  the  County  Court,  and  he  is 
only  authorized  to  make  a  sale  of  the  land  under  the  decree 
or  judgment  of  the  court."^  The  proceeding,  although  differ- 
ing somewhat  from  the  ordinary  action  at  law,  contains  its 
essential  features,  and  has  the  same  general  effect  as  to  the 
conclusiveness  of  the  judgment.  If  property  is  sold  under 
such  a  judgment,  the  purchaser's  title  cannot  be  affected  by 
any  irregularity  not  taken  advantage  of  in  the  judicial  pro- 
ceeding, unless  the  irregularity  is  so  gross  and  so  essential  as 
to  deprive  the  court  of  its  jurisdiction  over  the  subject- 
matter.**  Where  the  statute  requires  certain  preliminary 
proceedings  to  be  observed,  in  order  that  the  court  may 
obtain  jurisdiction,  a  failure  to  institute  them  will  vitiate  the 
purchaser's  title,  notwithstanding  the  sale  rests  upon  a  judg- 
ment of  the  court.*'  This  is  certainly  the  fairest,  as  well 
as  the  most  effective,  mode  of  enforcing  the  payment  of 
taxes,,  and  it  is  surprising  that  it  has  not  been  adopted  by 
all  the  States. 

63  Hills  V.  Chicago,  60  111.  86;  Webster  v.  Chicago,  62  111.  302.  To 
set  a  tax  deed  aside,  in  Illinois,  the  plaintiff  cannot  allege  the  mere 
invalidity  of  the  deed,  but  must  allege  and  prove  specific  reason  for 
the  invalidity  of  the  deed.  Langlais  v.  People,  212  111.  75,  72  N.  E. 
Rep.  28. 

64  Cadmus  v.  Jackson,  52  Pa,  St.  295 ;  Dentler  v.  State,  4  Blackf. 
258;  Wall  V.  Trumbull,  16  Mich.  228;  Bailey  v.  Doolittle,  24  111.  577; 
Wallace  v.  Brown,  22  Ark.  118;  Eitel  V.  Foote,  39  Cal.  439;  Mayo  r. 
Foley,  40  Cal.  281;  Langlais  v.  People,  212  111.  75;  72  N.  E.  Rep.  28. 

65  Thatcher  r.  Powell,  6  Wheat.  119;  Woods  V.  Freeman,  1  Wall.  398; 
Fox.  r.  Turtle,  ;'  1  111.  377 ;  Fortman  V.  Ruggles,  58  III.  '^07 ;  Mayo  V. 
Ah  Loy,  32  Cal.  477.  In  some  States,  the  defense  of  payment  of  the 
tax,  if  not  interposed,  will  not  effect  the  validity  of  the  tax  sale. 
Blackwell,  Tax  Titles  94.  But  in  Missouri,  in  a  recent  well  considered 
opinion,  by  Judg*^  Marshall,  the  State's  right  to  sell  is  held  to  exist 
only  by  reason  of  its  lien  for  the  unpaid  taxes, —  no  lien  exists  where 
the  taxes  were  not  delinquent;  a  judgment  for  taxes  that  have  been 
paid  is  held  to  be  a  nullity,  although  payment  was  not  pleaded  as  a 
defense,  and  the  owner  is  held  entitled  to  have  the  execution  sale  re- 
called and  the  judgment  set  aside,  on  motion  filed  in  the  original  pro- 
<"eding  before  the  return  term  of  the  execution,  after  sale.  State, 
CJ  rel,  Williams  v.  Linzee,  146  Mo.  532. 

760 


SECTION  III. 

TITLE   BY    PRIVATE   GRANT. 

Section  534,  Title  by  private  grant,  what  is? 

(a.)   Common-law  conveyances. 

535.  Principal  features  and  classes  of  common-law  conveyancea 

536.  FeoflFment. 

537.  Grant. 

538.  Lease. 

539.  Release,  confirmation  and  surrender. 

(6.)   Conveyances  under  the  Statute  of  Uses. 

540.  Retrospection, 

541.  Covenant  to  stand  seised. 

542.  Bargain  and  sale. 

543.  Future  estates  of  freehold  in  bargain  and  sale. 

544.  Lease  and  release. 

(c.)   Modern  conveyances. 

545.  What  conveyances  judicially  recognized. 

546.  Statutory  forms  of  conveyance. 

547.  Quit-claim  deeds.     > 

548.  Dual  character  of  common  conveyances. 

549.  Is  a  deed  necessary  to  convey  freeholds? 

§  534.  Title  by  private  grant,  what  is?  —  The  term 
"grant,"  as  here  used,  is  generic  in  signification,  and  is 
made  to  include  all  modes  of  private  alienation,  all  convey- 
ances inter  vivos,  as  distinguishable  from  title  by  devise.®' 
The  term  at  common  law  had  a  more  specific  meaning,  but 
this  restricted  use  of  it  has  lost  its  practical  value,  and  will 
be  mentioned  in  a  subsequent  paragraph  only  for  the  pur- 
ee Mr.  Washburn  (3  Washburn  on  Real  Prop.  353)  cites  Mr.  Wood  to 
the  effect  that  "  the  word  grant,  taken  largely,  is  where  anything  is 
granted,  or  passed  from  one  to  another;  and  in  this  sense  it  compre- 
hends feoffments,  bargains  and  sales,  gifts,  leases  in  writing  or  by  deed, 
and  sometimes  by  word  without  writing."  3  Wood  Conv.  7.  See  4 
Kent's  C!om.  491. 

y  761 


§    535  PRIVATE   GRANT.  [PART   III. 

pose  of  explaining  the  source  of  modern  rules  of  convey- 
ancing. Conveyances  may  be  divided  into  three  principal 
classes  viz.:  (a.)  conunon-law  conveyances;  (6.)  conveyances 
under  the  Statute  of  Uses;  (c.)  modern  conveyances.  In  this 
order  they  will  be  presented. 

(a.)     COMMON-LAW    CONVEYANCES. 

§  535.  Principal  features  and  classes  of  common-law  convey- 
ances.—  A  common-law  conveyance,  using  the  term  in  its 
broadest  sense,  is  one  which  directly,  and  by  the  force  of 
the  conveyance  itself,  transfers  the  legal  title  to  the  grantee. 
And  when  so  considered,  it  includes  the  modern  statutory 
conveyances  as  well  as  those  which  were  known  at  common 
law.  In  a  more  restricted  sense,  it  includes  only  the  latter 
class.  Common-law  conveyances  may  be  sub-divided  into 
two  classes,  viz. :  primary  and  secondary  conveyances.  A 
primary  conveyance  is  one  which  transfers  the  seisin  or  estate 
to  one,  who  has  no  other  interest  or  estate  in  the  property , 
while  the  conveyance  is  called  secondary,  when  the  estate 
previously  created  is  enlarged,  restrained,  transferred,  or  extin- 
guished.®^ The  following  are  enumerated  by  Blackstone  as 
the  principal  kinds  of  primary  and  secondary  conveyances: 
Primary,  (1)  feoffment;  (2)  gift;  (3)  grant;  (4)  lease; 
(5)  exchange;  (6)  partition.  Secondary,  (1)  release;  (2) 
confirmation;  (3)  surrender;  (4)  assignment;  (5)  de- 
feasance.®^* A  gift,  donatio,  was  the  name  applied  to  the 
grant  of  an  estate  tail,  and  differed  from  a  feoffment  only 
in  the  character  of  the  estate  created  or  granted.®^''  An 
exchange  was  an  ancient  conveyance,  now  obsolete,  whereby  a 
mutual  grant  of  equal  interests  is  effected,  the  one  in  con- 
sideration of  the  other,  the  peculiar  value  of  which  was  its 
capacity  to  take  effect  without  livery  of  seisin,  and  merely 
by  entry  into  possession.     But  the  interests  or  estates  had  to 

87  2Bla.  Com.  309. 
67a  2  Bla.  Com.  310. 
e7b2  Bla.  Com.  316,  317. 

762  -  ..^.  .      .  --^ 


CH.    XXII.]  PRIVATE   GRANT.  §    536 

be  equal  in  quantity ;  an  estate  in  fee  could  not  be  exchanged 
for  one  for  life  or  for  years,  although  they  may  be  of  equal 
pecuniary  value.®'  Partition,  if  voluntary,  differs  now  very 
little,  if  any,  from  the  more  common  modes  of  conveyance. 
Partition  is  made  by  ordinary  deeds  of  indenture,  conveying 
to  each  of  the  partitioners  his  share  in  severalty.®®  Involun- 
tary partition  is,  as  the  term  applies,  a  species  of  involun- 
tary grant  effected  through  the  decree  of  the  court.'®  De- 
feasance  deeds  have  been  already  fully  discussed  in  the  chap- 
ter on  mortgages,  and  will  require  no  further  elucidation.''^ 
Assignment  is  more  properly  a  transfer  of  an  interest  already 
created  than  a  peculiar  mode  of  acquiring  title.  When 
applied  to  the  subject  of  conveyancing  generally,  it  may  be 
treated  as  synonymous  with  the  generic  term  conveya^ice.  Its 
peculiar  signification  in  its  application  to  estates  for  years  has 
been  already  explained.'-  The  remaining  common-law  con- 
veyances will  now  be  explained  somewhat  in  detail. 

§  536.  Feoffment. —  This  was  the  chief  common-law  con- 
veyance for  the  transfer  of  freehold  estates  in  corporeal  here- 
ditaments, and  arose  out  of  the  peculiarities  of  the  feudal 
relation  between  the  lord  and  his  tenants.  The  word  feoffment 
is  derived  from  the  verb  feoff  are,  or  infeudare,  to  give  one  a 
feud.  It  is,  therefore,  in  its  original  sense,  the  grant  of  a 
feud,  donatio  feudi?^  This  is  the  only  primary  common-law 
conveyance  now  known  to  us  which  is  capable  of  transferring 
a  freehold.  It  is  said  to  operate  by  transmutation  of  posses- 
sion. It  has  no  effect  if  there  be  no  delivery  of  the  possession. 
In  fact,  the  feoffment  is  itself  nothing  more  than  the  delivery 
of  the  possession  with  the  intention  to  grant  an  estate  of  free- 
hold.   The  grantor  was  called  the  feoffor  and  the  grantee  the 

88  2  Bla.  Com.  323. 

«»  See  ante.  Sec.  193. 

70  See  ante.  Sec.  184. 

T»  See  ante.  Sees.  228,  234. 

T2  See  ante.  Sec.  139. 

7«2  Bla.  Com.  310;  Co.  Lit.  9. 

763 


§    536  *  PRIVATE   GRANT.  [PART   HI. 

feoifee.  The  feoffor,  in  order  to  make  the  conveyance,  went 
upon  the  land  with  the  feoffee,  and  in  the  presence  of  wit- 
nesses delivered  to  the  latter  a  clod  of  earth,  or  a  twig,  or 
some  other  thing  taken  from  the  land,  which  was  treated  as 
a  symbolical  delivery  of  the  land  itself.  The  feoffee,  who 
during  this  time  was  standing  presumably  near  the  border, 
but  on  the  outside  of  the  land,  then  entered  upon  it,  and  the 
conveyance  was  complete.  This  ceremony  was  called  livery  of 
seisin.^*  No  writing  was  necessary.  Indeed,  at  first  a  deed 
of  feoffment  was  unusual.  But  later  on,  when  the  exigen- 
cies of  advancing  civilization  called  forth  the  grant  of  lands 
to  different  persons  with  different  estates,  or  interests  therein, 
upon  various  conditions,  and  under  multitudinous  limitations, 
it  was  found  necessary  to  accompany  the  livery  of  seisin  with 
a  deed,  explaining  and  setting  forth  the  terms  and  conditions 
of  the  conveyance,  in  order  to  avoid  the  mistakes  of  witnesses, 
which  would  naturally  occur  if  they  had  to  rely  upon  their 
memory.  But  not  until  the  enactment  of  the  Statute  of 
Frauds  in  the  reign  of  Charles  II  was  it  necessary  for  a 
feoffment  to  be  evidenced  by  a  writing.'^  The  conveyance  by 
feoffment  passed  the  actual  seisin  in  fee  or  for  life  according 
to  the  terms  of  the  gift,  whether  the  feoffer  had  an  estate  in 
the  land  or  not.  "  If  it  is  proposed  to  convey  a  fee  simple, 
it  created  an  actual  fee  simple  in  the  feoffee,  by  right  or  by 

7*  This  symbolical  delivery  of  possession  is  very  ancient,  and  has 
been  employed  by  almost  all  of  the  historical  nations.  Thus  we  read 
in  the  Old  Testament  of  the  Bible,  Ruth,  iv:  7:  "Now  this  was  the 
manner  in  former  time,  in  Israel,  concerning  redeeming  and  concern- 
ing changing,  for  to  conform  all  things:  a  man  plucked  off  his  shoe  and 
gave  it  to  his  neighbor;  and  this  was  a  testimony  in  Israel."  Black- 
stone  also  tells  us  that  contracts  for  the  sale  of  lands  were  made  among 
the  Goths  and  Swedes  in  the  presence  of  witnesses,  who  extended  the 
cloak  of  the  buyer,  wTiile  the  seller  cast  a  clod  of  the  land  into  it,  in 
order  to  give  possession;  while  a  staff  or  wand  was  also  delivered  from 
the  vendor  to  the  vendee,  which  passed  through  the  hands  of  the  wit- 
nesses.    2  Bla.  Com.  313. 

76  2  Bla.  Com.  310-317;  Williams  on  Real  Prop.  147;  3  Washburn  on 
Real  Prop.  233,  351. 
764 


I 


CH.    XXII.]  PRIVATE   GRANT.  §    5'^? 

wrong,  according  as  the  feoffor  was  or  was  not  seised  in 
fee. "^"  In  consequence  of  this  doctrine,  a  tortious  feoffment 
disseised  the  righful  owner,  and  until  entry  by  him  he  war^ 
absolutely  divested  of  his  seisin  as  if  he  had  made  the  feoff- 
ment himself.  And  where  one  attempted  to  make  a  feoff- 
ment of  a  greater  estate  than  he  possessed,  his  feoffee  would 
acquire  a  tortious  estate,  and  the  smaller  estate  which  the 
feoffor  actually  possessed  would  be  lost  or  merged  in  the 
tortious  estate  so  granted.  His  feoffee,  therefore,  acquired  no 
indefeasible  estate,  and  could  be  ousted  at  once  by  the  right- 
ful owner  of  the  reversion.  This  explains  the  tortious  opera- 
tion of  feoffments  by  the  tenants  of  particular  estates  upon 
contingent  remainders,  which  has  already  been  fully  set 
forth.'^  In  England,  and  in  most  of  the  States  of  this  coun- 
try at  the  present  day,  feoffments  have  been  either  abolished 
altogether,  or  they  have  by  statute  been  prevented  from 
having  any  tortious  operation  upon  future  expectant  estates.''* 
The  doctrine  of  seisin  has  been  so  fully  explained  in  preceding 
chapters  that  nothing  further  need  here  be  said  of  it. 

§  537.  Grant. —  Conveyance  by  grant,  at  common  law,  was 
the  method  of  transferring  or  creating  estates  in  incorporeal 
hereditaments.  These  rights  being  intangible  or  incorporeal, 
they  could  not  be  transferred  by  livery  of  seisin.  "For  which 
reason  all  corporeal  hereditaments,  such  as  lands  and  houses, 

78  3  Washburn  on  Real  Prop.  351. 

■tiSeecmte,  Sec.  317. 

78  4  Kent's  Com.  481;  3  Washburn  on  Real  Prop.  351;  Williams  on 
Real  Prop.  146.  In  Alabama,  Maine,  New  York,  Wisconsin,  Massa- 
chusetts, Minnesota  and  Michigan.  1  Washburn  on  Real  Prop.  120. 
See  Grout  v.  Townshend,  2  Hill  554 ;  McCorry  V.  King's  Heirs,  3  Humph. 
267;  Dennett  V.  Dennett,  40  N.  H.  505.  In  South  Carolina  the  tortious 
operation  of  feoffment  was  for  a  long  time  recognized  as  an  active  ele- 
ment of  the  law,  and  it  until  lately  afforded  to  heirs,  who  were  dissatis- 
fied with  the  tenancy  for  life  given  to  them  by  will,  ready  means  for 
defeating  the  contingent  remainders  over  and  acquiring  the  fee  simple. 
See  Faber  V.  Police,  10  S.  C.  376.  But  by  a  very  late  statute  the  tortious 
effect  of  the  feoffment  has  been  abolished. 

765 


§    538  PRIVATE   GRANT.  fPART   III. 

are  said  to  lie  in  livery;  and  the  others,  advowsons,  commons, 
rents,  reversions,  etc.,  to  lie  in  grant. ' '  '*  Conveyance  by 
grant  could  only  be  made  by  deed.  In  this  respect  the  law 
is  still  unchanged.  But  the  deed  of  grant  differs  in  form  but 
little  from  the  deed  of  feoffment,  the  same  operative  words 
being  used  in  both,  dedi  et  concessi,  "have  given  and 
granted."  But  the  deed  of  feoffment  is  inoperative  as  a 
conveyance,  it  simply  acts  as  an  attestation  of  the  conveyance 
made  by  the  livery  of  seisin.  At  common  law  corporeal  here- 
ditaments could  not  be  transferred  by  grant.^"  Another  im- 
portant distinction  between  feoffment  and  grant  was  that 
a  deed  of  grant  could  not  be  made  to  create  a  tortious 
estate.  A  grant  only  conveys  what  the  grantor  had  a  right  to 
convey.     It  cannot  work  a  disseisin  of  the  reversioner.^^ 

§  538.  Lease. —  This  is  properly  a  conveyance  of  a  partic- 
ular estate  in  lands,  whether  for  life,  or  for  years,  or  at 
will,  where  a  reversion  is  left  in  the  grantor.^^  But  at 
present  the  term  is  used  to  indicate  the  conveyance  of  an 
estate  less  than  a  freehold.  Used  in  that  sense,  it  is  a 
contract  between  lessor  and  lessee,  vesting  in  the  latter  a 
right  to  the  possession  of  the  land  for  a  term  of  years.  Until 
possession  is  taken  it  is  merely  a  chose  in  action,  an  executory 
contract,  which  is  called  an  interesse  termini.  It  becomes  an 
estate  when  it  takes  effect  in  possession.  No  livery  of  seisin 
is  required,  and  the  lessee  merely  enters  upon  the  land.*'  It 
is  for  this  reason  that  an  estate  for  years  could  be  made  to 
commence  in  futuro,  while  it  was  impossible  to  do  so  with 
a  freehold.*** 

79  1  Bla.  Com.  317. 

80  2  Bla.  Com.  317;  3  Washburn  on  Real  Prop.  352;  Huff  V.  Mc- 
Cauley,  53  Pa.  St.  206;  Drake  v.  Wells,  11  Allen  143;  2  Shars.  Bla. 
Com.  206,  note. 

81  Co.  Lit.  271b,  Butler's  note;  4  Kent's  Com.  353;  3  Washburn  on 
Real  Prop.  352. 

82  2  Bla.  Com.  317. 

83  2  Bla.  Com.  318.     See  ante,  Sees.  131,  135. 
«♦  See  ante,  Sec.  132. 

766 


CH.    XXII.]  PRIVATE   GRANT.  §    539 

§  539.  Kelease,  confirmation  and  surrender. —  These  three 
secondary  conveyances  are  so  nearly  allied  to  each  other  that 
they  will  be  explained  and  distinguished  in  a  single  para- 
graph. A  release,  as  defined  by  Blackstone,  "is  a  discharge 
or  a  conveyance  of  a  man's  right  in  lands  or  tenements  to 
another  that  held  some  former  estate  in  possession.  The 
words  generally  used  there  are  demised,  released  and  for- 
ever quit-claimed." ^^  A  virtual  possession,  i.  e.,  a  construc- 
tive possession,  which  may  be  converted  into  an  actual  posses- 
sion, is  sufficient.  And  the  possession  of  the  lessee  of  a 
tenant  for  life  is  so  far  the  possession  of  the  tenant  for  life 
that  the  reversioner  may  make  a  release  to  him  (the  life 
tenant)  of  the  reversion.®*  The  deed  of  release  may  be  used 
in  the  following  cases :  First,  to  enlarge  a  particular  estate 
in  possession  ;  as  where  the  reversioner  releases  the  inheritance 
to  the  tenant  for  life.  But  the  reversion  must  be  immediate 
to  the  particular  estate.  An  outstanding  intermediate  estate 
would  prevent  a  release  of  the  reversion  to  the  tenant  in  pos- 
session.®^ Secondly,  to  pass  the  interest  of  one  coparcener 
or  joint-tenant  to  another.  Thirdly,  to  transfer  to  a  disseisor 
the  disseisee's  right  of  entry,  and  thus  make  the  disseisor's 
title  absolute.®*  A  confirmation  is,  according  to  Lord  Coke, 
* '  a  conveyance  of  an  estate  or  right  in  esse,  whereby  a  voidable 
estate  is  made  sure  and  unavoidable,  or  whereby  a  particular 
estate  is  increased. ' '  ®*  The  operative  words  in  a  confirma- 
tion are  "have  given,  granted,  ratified,  approved,  and  con- 
firmed.""" A  surrender  operates  to  transfer  a  particular 
estate  to  the  immediate  reversioner,  and  is  effected  by  the 
words,  "hath  surrendered,  granted,  and  yielded  up."  But  it 
can  only  take  effect  where  the  surrenderor  has  an  estate  in 
possession,  and  the  surrenderee  has  a  higher  estate  in  im- 

85  2  Bla.  Com.  324. 

88  Co.  Lit.  270  a ;  Hargrave's  note  3. 

8T  Co.  Lit.  273  b.        . 

88  2  Bla.  Corn.  324,  325. 

8»2  Bla.  Com.  326;  1  Inst.  295. 

»o  2  Bla.  Com.  325. 

767 


§    540  PRIVATE   GRANT.  [PART   III. 

mediate  reversion.'^  In  all  these  cases  the  transfer  is  made 
by  force  of  the  deed  of  release,  confirmation  or  surrender,  and 
does  not  require  livery  of  seisin  in  the  first  two  cases,  viz. : 
release  and  confirmation,  because  the  transferee  has  the  seisin 
already,  and  in  the  case  of  surrender  because  the  seisin  of  the 
surrenderor,  having  been  acquired  originally  from  the  surren- 
deree, is  subordinate  to  the  seisin  in  law  of  the  surrenderee, 
his  reversioner,  the  estates  of  the  two  together  constituting 
one  and  the  same  seisin."*  At  the  present  day  the  ordinary 
quit-claim  deed,  so-called,  has  all  the  qualities  of  the  release 
or  confirmation,  and  is  effective  in  any  of  these  cases  to 
convey  the  interest  of  the  grantor."' 

(&.)       CONVEYANCES  UNDER  THE  STATUTE  OP  USES. 

§  540.  Retrospection. —  It  will  be  remembered,  in  discuss- 
ing the  subject  of  uses  and  trusts,  it  was  stated  that  a  use 
could  be  created  originally  by  a  simple  oral  declaration  of 
the  legal  owner  of  the  land,  that  he  held  it  to  the  use  of 
another,  provided  the  declaration  was  made  for  a  good  or 
valuable  consideration."*  The  Statute  of  Frauds  subsequently 
required  all  creations  or  grants  of  uses  and  trusts  to  be  mani- 
fested by  some  instrument  in  writing  signed  by  the  party 
to  be  charged."*  And  although  it  has  become  customary  to 
create  uses  by  instruments  having  all  the  formalities  of  a  deed, 
it  is  not  necessary.  These  uses,  when  based  upon  a  con- 
sideration, were  enforced  in  equity  as  readily  as  if  there  had 
been  a  feoffment  to  uses."®  It  has  also  been  shown  that  when 
the  Statute  of  Uses  was  enacted,  all  uses  in  esse,  and  vested, 
became  at  once  executed  into  legal  estates,  the  seisin  being 
transferred  to  the  cestui  que  use  by  force  of  the  statute,  and 
the  future  contingent  uses  were  executed  whenever  they  be- 

01  2  Bla.  Com.  326. 

02  2   Bla.  Com.    324-327, 

03  See  post,  See.  547. 

04  See  ante,  Sec.  330. 

05  See  ante,  Sees.  328,  330,  374. 
»«  See  ante,  Sec.  330. 

768 


CH.   XXII.]  PRIVATE  GRANT.  §    541 

came  vested.®'^  After  the  passage  of  the  Statute  of  Uses,  there- 
fore, it  was  possible  to  convey  the  legal  estate  without  making 
use  of  any  of  the  primary  common-law  conveyances  which 
operated  by  transmutation  of  possession,  and  required 
a  livery  of  seisin.  The  grantor  had  only  to  make  a  declaration 
of  uses  upon  sufficient  consideration.  His  declaration 
vested  the  use  or  equitable  estate  in  the  grantee,  and  the 
statute  immediately  executed  it  into  a  legal  estate  and  trans- 
ferred the  seisin  to  him.  Thus  was  avoided  the  necessity  of 
a  resort  to  the  cumbersome  aud  ceremonial  feoffment  and 
livery  of  seisin.  With  this  explanation,  and  a  knowledge  of 
the  doctrine  of  uses  and  trusts,  it  is  not  difficult  to  under- 
stand the  operation  of  the  deeds  of  covenants  to  stand  seised, 
"bargain  and  sale,  and  lease  and  release.  The  deeds  themselves 
vest  in  the  grantee  only  the  use  or  equitable  estate.  The  legal 
use  and  seisin  are  transferred  by  the  Statute  of  Uses.  And 
where  any  one  of  these  deeds  creates  a  future  and  contingent 
use  which  cannot  be  executed  by  the  statute,  the  operation 
of  the  statute  upon  the  deed  will  be  suspended  in  respect  to 
such  interest,  until  it  has  become  vested  and  in  a  position 
to  be  executed. 

§  541.  Covenant  to  stand  seised. —  This  is  a  covenant,  be- 
tween near  relatives  by  blood  or  marriage,  founded  upon  the 
good  consideration  of  natural  love  and  affection,  that  the 
covenantor,  the  legal  proprietor  of  the  land,  shall  stand  seized 
to  the  use  of  the  covenantee.  But  the  conveyance  can  only 
operate  as  a  covenant  to  stand  seised  when  it  is  made  upon 
the  consideration  of  blood  or  marriage.®' 

»T  See  ante,  Sees.  338,  339,  349. 

98  2  Bla.  Com.  338;  2  Saunders  on  Uses  82;  2  Rolle  Abr.  784,  pi. 
244;  Emery  v.  Chase,  5  Me.  232.  Although  it  is  usual  for  the  cove- 
nant to  be  made  with  the  person  who  is  to  receive  the  benefit  of  the  use, 
it  is  not  necessary.  A.  may  covenant  with  B.  to  .stand  seised  to  the 
use  of  C,  A.'s  wife  or  child.  Co.  Lit.  112  a;  Bedell's  Case,  7  Rep.  40; 
Brewer  v.  Hardy,  22  Pick.  376;  Leavett  t?.  Leavett,  47  N.  H.  329;  Bar- 
rett V.  French,  1  Conn.  354 ;  Hayes  v.  Kershaw,  1  Sandf.  Ch.  258. 

49  769 


§    543  PRIVATE   GRANT.  [PART    III. 

§  542.  Bargain  and  sale. —  This  deed  is  in  the  nature  (if  a 
contract,  in  which  the  bargainor  for  a  valuable  consideration 
bargains  and  sells  the  land  to  the  bargainee,"®  and,  under  the 
doctrine  of  equitable  conversion,  becomes  the  trustee  for  the 
bargainee,  holding  the  legal  title  and  seisin  in  this  fiduciary- 
capacity.  As  it  appears  from  this  definition,  the  bargain  and 
sale  must  be  founded  upon  a  valuable  consideration,  i.  e., 
money,  or  money 's  equivalent.  But  the  consideration  need  not 
be  an  adequate  compensation  for  the  land.  The  covenant  to 
stand  seised,  and  the  bargain  and  sale  are  to  be  distinguished 
by  the  relations  of  the  parties,  and  the  consideration  upon 
which  the  conveyance  rests,  and  not  by  the  operative  words. 
"Covenant  to  stand  seised"  is  the  operative  clause  in  the 
conveyance  of  that  name,  but  neither  it  nor  "bargain  and 
sell"  has  any  technical,  precise  legal  import;  and  a  covenant 
to  stand  seised,  if  founded  upon  a  valuable  consideration  will 
operate  as  a  bargain  and  sale  between  strangers;  while,  on 
the  other  hand,  a  bargain  and  sale  deed  without  valuable 
consideration  will  operate  as  a  covenant  to  stand  seised  be- 
tween near  relations.^  In  England,  by  statute,  no  bargain  and 
sale  can  have  the  effect,  under  the  Statute  of  Uses,  of  vesting 
the  legal  title  in  the  bargainee,  unless  it  is  made  by  deed, 
and  enrolled  within  six  months  in  one  of  the  courts  of  West- 
minster Hall,  or  with  the  custos  rotulorum  of  the  country.^ 
This  statute  has  never  been  in  force  in  the  United  States.^ 

§  543.  Future  estates  of  freehold  in  bargain  and  sale. —  It 
has  been  held  in  unqualified  terms  by  the  courts  of  Massachu- 
setts and  Maine,  that  a  freehold  estate  to  commence  in  futuro 

99  Read  Hanks  v.  Folsom,  11  Lea  555,  distinguishing  bargain  and  sale 
deeds  and  executory  contracts  for  sale  of  lands.     See  ante,  Sec.  365. 

1  Co.  Lit.  40b;  2  Inst.  672;  1  Prest.  Conv.  .38;  Daviess  f.  Speed.  12 
Mod.  39;  Trafton  v.  Hawes,  102  Mass.  533;  Jackson  r.  Cadwell,  1  Cow. 
639;  Eckman  v.  Eckman,  68  Pa.  St.  460.     See  post,  Sec.  548. 

2  2  Bla.  Com.  338;  3  Washburn  on  Real  Prop.  313. 

3  Rogers  v.  Eagle  Fire  Ins.  Co.,  9  Wend.  611;  Jackson  v.  Wood,  12 
Johns.  74;  Given  v.  Doe,  7  Blackf.  210;  Report  of  Judges,  3  Binn.  156. 

770 


C:i.    XXII.]  PRIVATE   GRANT,  §    54]: 

cannot  be  created  by  bargain  and  sale  deed.*  But  it  has  been 
held  very  generally  elsewhere,  that  such  a  deed  is  capable 
of  creating  a  future  estate-  of  freehold,  and  even  the 
courts  of  the  States  above  named  have  finally  come  to  the 
same  conclusion,  overruling  the  prior  decisions  to  the  con- 
trary,* It  is  difficult  to  see  how  this  error  could  have  gained 
such  recognition.  Bargain  and  sale,  and  covenant  to  stand 
seised,  rest  upon  the  same  foundation,  that  they  both  create 
uses  in  the  grantee,  and  operate  under  the  Statute  of  Uses. 
And  there  is  no  better  established  rule  in  respect  to  the  sub- 
ject of  uses  and  trusts  than  that  a  use  is  free  from  the 
restrictions  controlling  the  limitation  of  common-law  legal 
estates,  which  arise  from  the  doctrine  of  seisin,  and  the  neces- 
sity of  livery  of  seisin,  in  order  to  convey  a  title. 

§  544.  Lease  and  release. —  This  conveyance  is  stated  to 
have  been  invented  by  Sergeant  Moore  soon  after  the  passage 
of  the  Statute  of  Enrollment,  and  consists  of  two  separate 
instruments,  a  lease  and  a  release,  and  was  introduced  to 
avoid  the  necessity  of  enrolling  the  bargain  and  sale.  The 
lease  is  for  one  year,  in  the  form  of  a  bargain  and  sale, 
which  need  not  have  been  enrolled,  since  the  statute  referred 
only  to  freeholds.  This  bargain  and  sale  lease  vested  a  use 
for  one  year  in  the  lessee,  and  the  statute  transferred  to  him 
the  possession  and  the  legal  title.  Being  then  in  possession 
as  tenant,  he  was  in  a  position  to  receive  the  grant  of  the  re- 
version or  freehold  by  way  of  a  release.®     This  is,  perhaps, 

♦  Harden  r.  Chase,  32  Me.  329;  Pray  v.  Pierce,  7  Mass.  331;  Gale  v. 
Coburn,  18  Pick.  397;  Brewer  f.  Hardy,  22  Pick.  376. 

5  Shapleigh  V.  Pilsbury,  1  Me.  271;  Wyman  v.  Brown,  50  Me.  150; 
Jordan  r,  Stevens,  51  Me.  79;  Drown  V.  Smith,  52  Me.  141;  Jackson  v. 
Swart,  20  Johns.  87;  Jackson  V.  McKenny,  3  Wend.  235;  Hayes  r.  Ker- 
shaw, 1  Sandf.  Ch.  267;  Bank  v.  Housman,  6  Paige  526;  Rogers  v. 
Eagle  Fire  Ins.  Co.,  9  Wend.  611;  Trafton  v.  Hawes,  102  Mass.  633. 
See  also  Mellichamp  V.  Mellichamp,  28  S.  C.  125;  Watson  V.  Cressy 
(Me.),  10  Atl.  Rep.  59;  Seals  v.  Pierce,  83  Ga.  587. 

«2  Bla.  Com.  337. 

771 


§    545  PRIVATE   GRANT.  [PART  HI. 

the  most  effective  of  the  conveyances  under  the  Statute  of 
Uses,  and  in  England  it  superseded  to  a  large  extent  both  the 
covenant  to  stand  seised  and  bargain  and  sale  deeds. 

The  possession,  acquired  by  the  bargain  and  sale  lease,  is 
only  such  a  constructive  possession  which  is  sufficient  to 
support  the  release,  and  does  not  give  to  the  lessee  the  right 
to  maintain  actions  in  respect  to  the  possession  until  he  has 
gained  actual  possession  by  entry.''  Both  the  lease  and  the 
release  are  common-law  conveyances,  but  the  lease,  operating 
as  a  common-law  conveyance,  vests  in  the  lessee  before  entry 
only  an  interesse  termini,  and  not  an  estate.  It  must  operate 
as  the  limitation  of  a  use  under  the  Statute  of  Uses,  in  order 
to  give  the  lessee  an  estate  with  constructive  possession.  The 
release  itself  is  a  common-law  conveyance,  and  operates  as 
such  in  this  connection.  In  England  it  had  to  operate  as  a 
common-law  conveyance  to  do  without  enrollment.  But  in 
this  country  it  may  operate  just  as  well  as  the  limitation  of 
a  future  use  as  a  release  of  a  future  legal  estate.^ 

(c.)       MODERN   CONVEYANCES. 

§  545.  What  conveyances  judicially  recognized. —  Although 
there  is  an  almost  infinite  variance  to  be  found  in  the  rules 
of  conveyancing  in  the  different  States  of  the  Country,  it  is 
believed  that  all  the  modes  of  conveyancing,  which  were  rec- 
ognized by  the  English  common  law,  heretofore  discussed, 
and  those  which  operated  under  the  Statute  of  Uses  are 
recognized  as  valid  and  effective  to  pass  the  legal  title.  In 
New  York  deeds  of  feoffment  with  livery  of  seisin  are  ex- 
pressly abolished  by  statute,"  while  in  other  States  they  remain 
as  a  valid,  though  somewhat  obsolete,  conveyance.  In  most 
of  these  States,  in  order  that  a  deed  of  feoffment  may  take 
effect  as  such,  it  must  still  be  accompanied  by  the  ceremonial 
livery  of  seisin.     But  in  several  of  the  States,  notably  Massa- 

7  3  Washburn  on  Real  Prop.  356. 

8  3  Washburn  on  Real  Prop.  355. 

9  1  Rev.  Stat.  N.  Y.  738. 

772 


CH.   XXII.]  PRIVATE  GRANT.  §    546 

chiisetts,  Maine,  Mississippi,  Pennsylvania,  Missouri,  Connecti- 
cut and  Rhode  Island,  the  recording  and  delivery  of  a  deed  of 
feoffment  is  equivalent  to  the  actual  livery  of  seisin,  and  dis- 
penses with  it.^"  The  conveyances  under  the  Statute  of  Uses 
are  also  recognized^  and  in  Arkansas,  Connecticut,  Delaware, 
Florida,  Georgia,  Illinois,  Indiana,  Kentucky,  Maryland, 
Michigan,  Minnesota,  Mississippi,  Missouri,  .New  Hampshire, 
New  Jersey,  Pennsylvania,  Vermont  and  Virginia,  the  deed  in 
general  use  is  substantially  a  bargain  and  sale.^^  In  no  State 
is  it  thought  impossible  to  make  a  valid  conveyance  by  deed 
operating  under  the  Statute  of  Uses.^- 

§  546.  Statutory  forms  of  conveyance. —  But  in  addition  to 
the  forms  of  conveyance  already  discussed,  there  are  found  in 
some  of  the  States  others  which  are  prescribed  by  statute  and 
made  effectual  to  pass  the  legal  title.  Such  forms  are  to  be 
found  in  New  Hampshire,  South  Carolina,  Pennsylvania,  New 
York,  Iowa,  Maryland  and  Tennessee.  The  use  of  these  forms, 
however,  is  not  made  obligatory.  The  statute  is  construed  to 
be  directory,  and  does  not  invalidate  the  other  modes  of  con- 
veyance which  were  previously  in  use.  A  bargain  and  sale 
or  a  feoffment  would  be  just  as  effectual  now  as  formerly.^^ 
In  New  York,  as  previously  stated,  feoffments  have  been  abol- 
ished, and  all  conveyances,  whether  they  are  in  form  a  feoff- 
ment or  a  deed  under  the  Statute  of  Uses,  are  by  statute 
made  to  operate  as,  and  are  called,  grants."  And  in  Georgia 
a  statute  provides  that  any  deed  which  clearly  shows  the 

10  Pray  v.  Pierce,  7  Mass.  381 ;  Russell  V.  Coffin,  8  Pick.  143 ;  Barrett 
V.  French,  1  Conn.  354;  Caldwell  v.  Fulton,  31  Pa.  St.  483;  Wyman  V. 
Brown,  50  Me.  160;  Williamson  V.  Carleton,  51  Me.  462;  Poe  f.  Doniec^ 
48  Mo.  481. 

11  2  Washburn  on  Real  Prop.  452. 

izGivan  r.  Doe,  7  Blackf.  212;  Funk  v.  Creswell,  5  Iowa  68;  Brewer 
V.  Hardy,  22  Pick.  376;  Duval  v.  Bibb,  3  Call.  362;  Rogers  r.  Eagle 
Fire  Ins.  Co.,  9  Wend.  611. 

13  3  Washburn  on  Real  Prop.  360;  Redfern  v.  Middleton,  Rice  464;  2 
Washburn  on  Real  Prop.  447;  Miller  V.  Miller,  Meigs.  484. 

1*  1  Rev.  Stat.  N.  Y.  738 

773 


§    Oil  PRIVATE   GRANT.  [PART   III. 

intention  cf  the  party  to  convey  the  title  to  lands,  shall  be 
effectual  for  that  purpose.  No  form  is  prescribed,  and  no 
want  of  form  will  invalidate  the  transaction." 

§  547.  Quit-claim  deed. —  Although  a  deed  of  release  is  a 
secondary  conveyance  and  is  only  effectual  in  conveying  a 
reversionary  or  equitable  interest  to  one  already  possessed  of 
an  estate  in  possession,  a  form  of  deed  similar  to  the  release, 
and  known  as  a  quit-claim  deed,  has  met  with  general  recogni- 
tion in  this  country,  and  has,  in  some  of  the  States,  been 
expressly  recognized  by  statute."  In  Kentucky  release  is,  by 
statute,  made  a  primary  conveyance.^''  But  a  quit-claim  deed 
only  passes  that  interest  which  the  grantor  has  at  the  time 
of  conveyance,  and  the  grantee  under  it  has  not  the  equities 
of  a  hona-fide  purchaser.  If  the  title  should  fail  there  is  no 
remedy  against  the  grantor,  for  a  quit-claim  deed  contains  no 
covenants  of  title^^  It  is,  however,  possible  for  a  deed  in 
the  form  of  a  quit-claim  deed,  to  contain  covenants  of  title. 
But  such  deeds  are  not  technical  quit-claim  deeds.^"  And 
should  the  grantor  subsequently  acquire  the  title,  no  estoppel 
arises  against  him  in  favor  of  the  grantee,  to  prevent  his 
enforcement  of  the  title.^**  Quit-claim  deeds  contain,  usually, 
as  their  operative  words,  ''remise,  release,  and  forever  quit- 
claim," but  the  form  may  be  varied.     And  where  there  are 

15  3  Washburn  on  Real  Prop.  361.  See  also  Kennedy  v.  Moness  (N.  C. 
1905),  50  S.  E.  Rep.  450. 

16  It  is  so  recognized  in  Minnesota,  Maine,  Mississippi,  Massachu- 
setts, and  Illinois;  3  Washburn  on  Real  Prop.  359,  notes.  See  also, 
Brown  v.  Jackson,  3  Wheat.  452;  Jackson  f.  Bradford,  4  Wend.  619; 
Jackson  v.  Hubble,  1  Cow.  613;  Dart  V.  Dart,  7  Conn.  255;  Hall  V. 
Ashby,  9  Ohio  96;  Hamilton  r.  Doolittle,  37  111.  482;  Kerr  V.  Freeman, 
33  Miss.  292;  Carpentier  v.  Williamson,  25  Cal.  168. 

17  3  Washburn  on  Real  Prop.  360. 

18  May  V.  LeClair,  11  Wall.  232;  Kyle  v.  Kavanagh,  103  Mass.  356; 
Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y.  253 ;  Sherwood  v.  Barlow,  19  Conn. 
471. 

i»  See  Whaley  v.  Cavanaugh,  88  Cal.  132. 

20  Bruce  v.  Luke,  9  Kan.  201,    12  Am.  Rep.  491 ;  Price  v.  King,  44 
Kans.  639. 
774 


CH.    XXII.]  PRIVATE   GRANT.  §    548 

no  technical  words  of  sale  and  conveyance,  the  quit-claim  deed 
has  been  held  effectual  to  pass  the  title,  provided  words  of 
transfer,  or  words  evidencing  the  intention  to  transfer,  are 
present.^^  Quit-claim  deeds  are  practically  nothing  more  than 
deeds  without  covenants  of  title,  and  they  will  operate  as 
primary  or  secondary  conveyances,  according  to  the  circum- 
stances of  the  parties  in  respect  to  the  land,  at  least  in  those 
States  where  the  quit-claim  deed  is  recognized  as  a  primary 
conveyance.  Deeds  in  the  form  of  a  quit-claim  deed,  may 
contain  covenants  of  title,  and  in  such  cases  there  is  very  little 
doubt  that  the  parties  intended  them  to  operate  as  primary 
conveyances.*'' 

§  548.  Dual  character  of  common  conveyances. —  The  char- 
acter of  the  conveyance  is  in  the  first  instance  determined  by 
the  operative  words  of  conveyance  appearing  in  the  deed. 
The  forms  of  expression,  characteristic  of  the  various  modes 
of  conveyance,  have  been  given  in  connection  with  the  descrip- 
tion of  them.  The  ordinary  deed,  usually  found  in  general 
use  in  the  United  States,  contains  the  operative  words,  "give, 
grant,  bargain  and  sell."  "Give  and  grant,"  do  et  concede, 
were  used  in  the  deed  of  feoffment  and  grant,  and  are  com- 
mon-law words  of  conveyance.  "Bargain  and  sell,"  as  has 
already  been  explained,  are  the  operative  words  of  bargain 
and  sale  deeds.  By  a  course'of  judicial  legislation,  going  far 
back  into  the  common  law  of  Lord  Coke's  day,  in  order  to 
effectuate  the  intention  of  the  parties,  when  clearly  manifested, 
a  deed  has  been  held  to  operate  as  that  mode  of  conveyance 
which  best  carries  out  the  intention  of  the  parties,  provided 
there  are  sufficient  operative  words  to  bring  the  deed  within 
that  class  of  conveyances.  Where,  therefore,  a  deed  contains 
the  words  "give,  grant,  bargain  and  sell,"  it  may  operate 
either  as  a  bargain  and  sale  under  the  Statute  of  Uses,  or  as 

21  Fash  V.  Blake,  38  111.  367;  Johnson  v.  Boutock,  38  111.  114;  Wilson 
V.  Albert,  89  Mo.  537,  1  S.  W.  Rep.  209. 

22  See  Whaley  v.  Cavanaugh,  88  Cal.  132.  See  Denver  v.  Denver  (N. 
C.  1904),  49  S.  E.  Rep.  113. 

775 


§    548  PRIVATE   GRANT.  [PART    III. 

a  feoffment  at  common  law,  if  there  is  livery  of  seisin,  or 
if  livery  is  dispensed  with  by  statute  or  by  judicial  legisla- 
tion ;  ^*  or  further,  it  may  operate  as  the  modern  statutory  con- 
veyance, provided  the  operative  words  are  the  same  as 
prescribed  by  the  statute.-*  In  most  of  the  cases  arising 
under  this  rule  of  construction  the  deed  is  inoperative  as 
one  mode  of  conveyance,  on  account  of  some  defect  in  the 
execution,  or  in  the  nature  of  the  grant,  and  complies  with 
the  requirements  of  some  other  mode  of  conveyance.  Thus 
a  deed  of  release  will  take  effect  as  a  covenant  to  stand  seised, 
if  there  is  a  limitation  of  a  future  freehold  estate  which 
cannot  be  created  by  a  common-law  conveyance. ^'^  So  also  will 
release  be  treated  as  a  bargain  and  sale,  where  it  would  be 
invalid  as  a  release,  because  it  is  made  to  a  party  not  in 
possession  of  the  land.  The  words  of  release  raise  a  use  in 
favor  of  the  releasee.''"  A  use  may  be  raised  by  any  words 
showing  the  intention  to  convey  a  title.  In  a  case  in  Vir- 
ginia the  words  of  conveyance  were  * '  give,  grant,  and  deliver, ' ' 
and  the  court  held  it  to  be  a  good  bargain  and  sale.^^  It 
is  also  a  well  established  rule  that  deeds  operating  under  the 
Statute  of  Uses  will  be  treated  as  bargains  and  sales,  or  as 
covenants  to  stand  seised  whatever  may  be  the  words  of  con- 
veyance, according  to  the  consideration  present  to  support 
the  conveyance.  If  it  is  a  good  consideration  it  will  be  a 
covenant  to  stand  seised,  and  a  bargain  and  sale  if  the  con- 
sideration is  valuable.-®  So  also,  if  the  operative  words  are 
"give,  grant,  bargain,  and  sell,"  and  the  like,  will  the  deed 

23  See  ante,  Sec.  545, 

24  3  Washburn  on  Real  Prop.  357 ;  Sheppard  Com.  Assur.  82,  83. 

25  Roe  V.  Tranmarr,  7  Willis  682;  s.  o.  2  Smith's  Ld.  Cas.  288;  Smith 
r.  Frederick,  1  Russ.  210;  Haggerston  V.  Hanbury,  5  B.  &  C.  101;  Gib- 
son r.  Minet,  1  H.  Bl.  569;  s.  c.  3  T.  R.  481. 

26  Pray  v.  Pierce,  7  Mass.  381;  Marshall  V.  Fisk,  6  Mass.  24;  Russell 
T.  Coffin,  8  Pick.  143;  Jackson  v.  Beach,  1  Johns.  Cas.  401;  Havens  V. 
Seashore  Land  Co.  ( Ind. ) ,  20  Atl.  Rep.  497.  See  Cassady  v.  Stoble,  90 
N.  Y.  S.  533. 

27  Rowletts  V.  Daniel,  4  Munf .  473 ;  Tabb.  v.  Baird,  3  Call.  475. 

28  Cox  V.  Edwards,   14  Mass.  492;   Brewer  v.  Hardy,  22  Pick.  376; 

776 


CH.    XXII.]  PRIVATE   GRANT.  §    548 

be  treated  as  a  common-law  conveyance  if  it  cannot  operate  as 
a  bargain  and  sale,  or  a  covenant  to  stand  seised,  for  the  want 
of  a  good  or  a  valuable  consideration.-^  And  where  there  is 
a  grant  in  such  a  deed  to  A.  to  the  use  of  B.,  since  the 
policy  of  the  courts  of  this  country  is  to  execute  all  uses, 
and  vest  the  legal  title  in  the  cestui  que  use  whenever  it  is 
possible,  the  deed  will  be  treated  as  a  common-law  conveyance, 
since  such  a  limitation  in  a  bargain  and  sale  would  create  a 
use  upon  a  use,  which  cannot  be  executed.^*^  That  a  bargain 
and  sale  to  A.  to  the  use  of  B.  raises  a  use  upon  a  use,  and 
gives  the  legal  title  to  A,  under  the  Statute  of  Uses,  is  the 
settled  rule  of  the  courts  of  those  States  where  the  doctrine  of 
ulterior  uses,  or  use  upon  a  use,  has  not  been  abolished  by 
statute.^^  A  deed  may  also  as  to  one  limitation  operate  as  a 
common-law  conveyance,  while  it  may  be  treated  as  a  convey- 
ance under  the  Statute  of  Uses  in  respect  to  another  limita- 
tion, if  such  a  construction  is  necessary  to  carry  out  the  in- 
tention of  the  parties.^^  But  when  it  is  desired,  that  a  deed 
should  operate  as  a  particular  mode  of  conveyance  it  must 
possess  all  the  requisites  of  that  conveyance.  And  although  by 
this  liberal  and  accommodating  rule  of  construction  it  is  not 
likely  for  a  common  and  ordinary  rrant  to  be  made,  which  will 
not  possess  the  requisite  of  some  form  of  conveyance,  and 
which  cannot  take  effect  in  consequence,  yet  it  is  possible,  and 
where  the  grant  is  so  singularly  defective  it  wilJ  of  course, 
be  void  and  inoperative." 

Trafton  v.  Hawes,  102  Mass.  533;  Okison  v.  Patterson,  1  Watts  &  S. 
395. 

28  Emery  r.  Chase,  5  Me.  232;  Adams  v.  Guerard,  20  Ga.  676;  Cheney 
V.  Watkins,  1  Harr.  &  J.  527;  Rowland  t\  Rowland,  93  N.  C.  214. 

30  Thatcher  v.  Omans,  3  Pick.  522 ;  Bacon  V.  Taylor,  Kirby  368 ;  Himt 
V.  Hunt,  14  Pick.  374;  Jackson  V.  Sebring,  16  Johns.  515;  SpragMc  r. 
Woods,  4  Watts  &  S.  194.     See  Linville  v.  Golding,  11  Ind.  374. 

81  See  ante,  Sec.  342.  See  R.  P.  Law  N.  Y.  (1896),  p.  570,  construed, 
In  re  DeRycks  Will,  91  N.  Y.  S.  159. 

82  Emery  v.  Chase,  5  Me.  232;  Bryan  v.  Bradley,  16  Conn.  474. 

38  Emery  v.  Chase,  5  Me.  232;  Jackson  v.  Sebring,  10  Johns.  515; 
Jackson  v.  Cadwell,  1  Cow.  622;  Marshall  v.  Fisk,  6  Mass.  24;  Carrol 

777 


?    549  PRIVATE   GRANT.  fPART   III. 

§  549.  Is  a  deed  necessary  to  convey  freeholds?  —  By  the 
term  "deed"  is  meant  an  instrument  under  seal.^*  The  ques- 
tion, therefore,  which  is  mooted  here  is,  whether  a  sealed  in- 
strument is  necessary  to  convey  the  legal  title  to  a  freehold 
estate.  It  has  been  so  long  and  so  generally  considered 
indispensable,  unless  abolished  by  statute,  that  although  irre- 
sistibly driven  to  the  conclusion,  it  was  with  some  hesitation 
that  the  contrary  position,  with  qualifications,  has  been  here 
assumed.  The  position  is,  that  for  the  conveyance  of  a  legal 
freehold  estate  in  a  corporeal  hereditament,  a  sealed  instru- 
ment is  not  necessary,  unless  a  statute  expressly  requires  it. 
There  were  two  principal  classes  of  conveyances  in  England, 
viz.:  common-law  conveyances,  operating  by  transmutation  of 
possession,  and  conveyances  under  the  Statute  of  Uses.  The' 
principal  common-law  conveyances,  and  those  which  concern 
lis  in  the  present  discussion,  were  ''feoffment"  and  "grant." 
Grant  was  used  to  convey  incorporeal  hereditaments  and 
reversionary  interests  in  corporeal  hereditaments,  and  required 
a  sealed  instrument.^'*  Feoffment  was  used  to  convey 
corporeal  freeholds  in  possession,  and  consisted  of  the  cere- 
monial livery  of  seisin.  No  deed,  or  any  other  writing  was 
required,  although  it  was  customary  to  employ  a  deed,  where 
the  limitations  were  numerous  and  intricate.^^  In  respect  to 
the  conveyances  under  the  Statute  of  Uses,  it  is  a  well- 
known  fact  that  uses  before  the  Statute  of  Frauds  could  be 
created  in  corporeal  hereditaments  by  an  oral  declaration 
which  would  be  executed  by  the  Statute  of  Uses  into  a  legal 

t>.  Norwood,  5  Harr.  &  J.  155;  Den  v.  Hanks,  5  Ired.  30;  Foster  V. 
Dennison,  9  Ohio  121.  In  Den  v.  Hanks,  supra,  the  deed  could  not 
operate  as  a  bargain  and  sale,  because  no  consideration  was  expressed 
or  proved.  It  could  not  take  effect  as  a  covenant  to  stand  seised,  for 
there  was  no  blood  relationship  between  the  pajtios  to  import  a  good 
consideration,  and  it  could  not  operate  as  a  feoffment,  because  there 
had  been  no  livery  of  seisin.     The  deed  was  therefore  declared  void. 

34  See  post.  Sees.  551,  572. 

35  See  ante.  Sec.  537. 

«eSee  ante,  Sec.  536;  Williams  on  Real  Prop.  147,  152. 
778 


CH.   XXII.]  PRIVATE  GRANT.  §    549 

estate,  if  it  was  supported  by  a  sufficient  consideration,^^ 
except  in  one  ease,  viz. :  in  the  case  of  a  bargain  and  sale.  By  * 
statute,  27  Hen.  VIII,  ch.  16,  commonly  called  and  known  as 
the  Statute  of  Enrollment,  it  was  enacted  that  no  bargain  and 
sale  shall  have  the  effect  of  conveying  the  legal  title  to  a 
freehold  estate,  unless  it  is  in  writing,  indented  and  sealed, 
and  enrolled  in  one  of  the  King's  courts  at  Westminster.^' 
From  this  synoptical  statement  it  is  evident,  therefore,  that, 
using  the  language  of  Mr.  Washburn,  "prior  to  the  Statute 
of  Frauds  in  the  time  of  Charles  II,  it  did  not  require  a 
written  instrument  to  convey  corporeal  hereditaments,  except 
as  provided  in  the  matter  of  deeds  of  bargain  and  sale.^" 
But  it  was  at  an  early  day  held  impossible  to  create  a  use  in 
any  incorporeal  hereditament,  such  as  rents  which  required 
a  deed  at  common  law,  unless  it  was  declared  by  deed.*" 
Now  the  Statute  of  Frauds  only  required  an  instrument  in 
writing,  signed  by  the  grantor,  and  did  not  require  it  to  be 
sealed.  After  the  passage  of  the  Statute  of  Frauds,  there- 
fore, except  as  to  bargains  and  sales  and  grants,**  a  deed  was 
not  required  to  make  an  effectual  conveyance.  Feoffments 
could  be  made  by  a  simple  instrument  in  writing,  and  it  would 
seem  that  a  covenant  to  stand  seised  did  not  actually  require 
a  seal,  although  a  covenant  is  a  sealed  instrument;  for  it  is 
stated   unqualifiedly    by   the    old    authorities   that,    for   the 

3T  See  ante,  Sees.  330,  540.  The  Statute  of  Uses  expressly  states  this 
to  be  the  case.  The  statute  enacts  that  "  where  any  person  stood  or 
were  seised  ...  in  any  honours,  castles,  lands,  etc.,  to  use,  etc., 
of  any  other  person,  etc.,  by  reason  of  any  bargain,  sale,  feoffment, 
;  .  .  covenant,  contract,  agreement,  will,  or  otherwise,"  etc.  See 
ante.  Sec.  338,   note. 

38  3  Washburn  on  Real  Prop.  421. 

89  3  Washburn  on  Real  Prop.  421,  422. 

40  2  Washburn  on  Real  Prop.  392;  2  Bla.  Com.  331;  1  Spence  Eq.  Jur. 
449. 

*i  It  must  not  be  understood  that  any  reference  is  made  here  to  the 
common-law  secondary  conveyances,  such  as  a  release,  exchange  or  sur- 
render. These  conveyances  were  all  in  the  nature  of  a  "  grant,"  and 
required  a  deed.     See  ante,  Sees.  635,  539. 

779 


§    549  PRIVATE   GRANT.  [PART  IH. 

creation  of  a  use,  an  oral  declaration  was  sufficient,  but  it 
'required  a  valuable  consideration  to  create  a  use  in  a  stranger, 
and  a  good  consideration  to  vest  it  in  a  blood  relation.'*^  But 
although  a  deed  was  not  required  before,  or  after,  the  Statute 
of  Frauds  except  in  the  case  of  grants  and  bargains  and  sales, 
it  was  always  customary  to  use  them.  In  the  early  days  of 
the  feudal  system,  the  great  lords  and  barons  were  ignorant 
of  the  art  of  writing,  and  could  not  sign  their  names ;  but  they 
all  possessed  seals,  and  when  any  important  writing  was 
required  to  be  executed,  they  sealed  it  with  their  own  seals 
instead  of  signing.*^  From  the  solemnity  of  the  act  of  sealing, 
a  seal  was,  at  an  early  day,  held  to  import  a  consideration.  If, 
therefore,  a  sealed  instrument  was  used  in  the  declaration  of 
a  use,  no  actual  consideration  was  necessary  to  support  the  use, 
if  some  sufficient  consideration  was  acknowledged  in  the 
deed.**  But  if  it  was  an  oral  declaration,  a  consideration  had 
to  be  proved  in  order  to  raise  a  use.  To  avoid,  therefore,  the 
necessity  of  a  consideration,  it.  was  the  common  custom  to  use 
a  sealed  instrument.  This  was  the  state  of  the  law  in  England 
at  the  time  of  the  American  revolution.  The  next  question  is, 
what  is  the  condition  of  the  law  in  America?  It  follows,  as 
a  necessary  consequence,  that  in  those  States  which  have 
expressly  or  impliedly  adopted  the  common  law  of  England, 
except  so  far  as  it  is  modified  by  statute,  or  repugnant  to  the 
political  institutions  of  this  country,  the  law  in  respect  to 
the  requirement  of  a  sealed  instrument  to  convey  lands  must 
be  the  same,  unless  it  has  been  changed  by  a  local  statute.  The 
only  doubtful  question  involved  in  this  conclusion  is  the 
effect  of  the  English  Statute  of  Enrollment,  upon  the  Ameri- 
can law.     It  has  been  very  generally  held  that  this  statute  has 

42  See  2  Washburn  on  Real  Prop.  392,  394;  1  Spence  Eq.  Jiir.  449, 
450.  The  word  "  covenant "  is  also  often  used  as  synonymous  with  con- 
tract or  agreement.  Thus  we  speak  of  covenants  in  leases,  when  usually 
leases  are  not  sealed. 

« Williams  on  Real  Prop.  147;  2  Bla.  Com.  305,  306;  Hallam's  Mid- 
dle Age?  320. 

44  See  ante,  Sec.  329,  and  post,  Sec.  564. 
780 


CH.    XXII.  J  PRIVATE   GRANT.  §    549 

never  been  recognized  by  the  American  courts  as  a  part  of 
the  common  law.*^  But  the  cases  cited  in  the  note  only 
involved  the  question  as  to  the  necessity  of  an  enrollment,  and 
did  not  involve  a  discussion  as  to  the  applicability  of  the 
statute,  so  far  as  it  requires  a  deed  to  create  a  use  by 
bargain  and  sale.  The  natural  presumption  would  be,  that  a 
statute  could  not  be  recognized  in  part,  and  denied  to  be  in 
force  as  to  its  other  requirements,  particularly  where  the 
provision,  supposed  to  be  recognized,  is  only  auxiliary  to  the 
main  object  and  purpose  of  the  statute.  The  conclusion, 
therefore,  is,  that  unless  the  Statute  of  Enrollment  is  in  force 
in  this  country,  or  unless  there  is  a  State  statute,  requiring 
a  use  or  trust  to  he  created  by  deed  in  order  that  it  may  he 
executed  by  the  Statute  of  Uses  into  a  legal  estate,  the  ordi- 
nary deed  in  common  use  will  be  effectual  to  pass  the  legal  title 
to  any  freehold  in  a  corporeal  hereditament,  without  being 
sealed,  if  an  actual  consideration  is  proved  to  have  passed 
from  the  grantee  to  the  grantor.*^  And,  furthermore,  if  in 
any  State  the  ordinary  conveyance  can  operate  as  a  feoffment, 
and  the  State  statutes  do  not  expressly  require  a  sealed  instru- 
ment, the  conveyance  will  be  a  good  feoffment  without  being 
sealed,  and  without  the  acknowledgment  or  proof  of  a  con- 
sideration, if  the  conveyance  expressly  declares  to  whose  use 
the  lands  shall  be  held.*' 

< 5  Rogers  v.  Eagle  Fire  Ins.  Co.,  9  Wend.  611;  Jackson  v.  Wood,  12 
Johns.  74;  Jackson  V.  Dunsbagh,  1  Johns.  97;  Givan  v.  Doe,  7  Blackf. 
210;  Report  of  Judges,  3  Binn.  156. 

••8  The  author  has  had  neither  time  nor  space  to  ascertain  and  state 
the  exact  law  on  this  subject  in  any  particular  State.  He  has  con- 
tented himself  with  the  general  statement  of  a  somewhat  abstract  rule, 
and  leaves  the  continuation  of  the  investigation  to  the  reader.  One 
other  observation  may  perhaps  hi  necessary;  and  that  is,  that  where 
a  statute  prescribes  a  form  of  conveyance,  and  requires  a  seal  in  exe- 
cuting it,  it  does  not  invalidate  the  other  modes  of  conveyance,  which 
were  previously  in  use,  unless  they  are  expressly  repealed  (see  ante, 
Sec.  546)  ;  and  the  requirement  of  a  seal  in  the  statutory  conveyance 
will  not  by  implication  make  a  seal  necessary  in  the  other  forma  of 
conveyance. 

47  See  Sees.  329,  565.    The  omission  of  a  seal  has  been  held  not  to 

781 


§    549  PRIVATE   GRANT.  [PART    III. 

effoct  the  validity  of  the  instrument,  in  the  followinji  rases,  Laughlin  V. 
Kieper  (Wis.  1905),  103  N.  W.  Rep.  264;  Burkanip  r.  Healey  (Ky. 
190.3),  72  S.  W.  Rep.  759.  "A  seal  is  unnecessary  to  a  lease,  and  if 
placed  thereon  does  not  raise  the  same  above  the  dignity  of  any  non- 
specialty  written  contract."  Woolsey  v.  Henke  (Wis.  1905),  103  N.  W. 
Eep.  267. 

782 


CHAPTER  XXIII. 

DEEDS  —  THEIR  REQUIREMENTS  AND  COMPONENT  PARTS. 

Section      I.  The  requisites  of  a  deed. 

II.  The  component  parts  of  a  deed. 
III.  Covenants  in  deeds. 

SECTION  I. 

THE  REQUISITES  OP  A  DEED. 

ftconoN  550.  Definition  of  a  deed. 

551.  Requisites,  what  they  are. 

552.  A  sufficient  writing,  what  constitutes. 

553.  A  sufficient  writing,  what  constitutes  —  Continued. 

554.  Alterations  and  interlineations. 

555.  Proper  parties  —  The  grantor. 

556.  Infants  and  insane  persons. 

557.  Ratification  and  disaffirmance. 

558.  Deeds  of  married  women. 

559.  A  disseisee  cannot  convey. 

560.  Fraud  and  duress. 

661.  Proper  parties  —  Grantees. 

562.  Proper  parties  named  in  the  deed. 

563.  A  thing  to  be  granted. 

564.  A  thing  to  be  granted  —  Continued. 

565.  The  consideration. 

566.  Voluntary  and  fraudulent  conveyances. 

567.  Operative  words  of  conveyance. 

568.  Execution,  what  constitutes. 

569.  Power  of  attorney. 

570.  Power  of  attorney  granted  by  married  woman. 

571.  Signing. 

572.  Sealing, 

573.  Attestation. 

574.  Acknowledgment  or  probate. 

575.  Reading  of  the  deed,  when  necessary. 

576.  Delivery  and  acceptance. 

783 


§  552  REQUISITES  OF  A  DEED.  [PART  III. 

577.  What  constitutes  a  sufficient  delivery.  ?r 

578.  Delivery  to  stranger  —  When  grantee's  assent  presumed. 

579.  Escrows. 

580.  Registration  of  deeds. 

581.  Requisites  of  a  proper  record. 

582.  To  whom  is  record  constructive  notice. 

583.  Priority  of  unrecorded  mortgages  over  judgments. 

584.  Of  what  is  record  constructive  notice. 

585.  From  what  time  priority  takes  effect. 

586.  What  constitutes  notice  of  title? 

§  550.  Definition  of  a  deed. —  A  deed,  as  defined  by  Lord 
Coke,  is  a  writing  sealed  and  delivered  by  the  party  thereto, 
and  contains  a  contract,  executory  or  executed.  According 
to  the  common-law,  before  the  passage  of  the  Statute  of 
Frauds,  signing  was  unnecessary.  It  is  now,  however,  an 
important  act,  and  in  most,  if  not  all,  of  the  United  States,  it 
is  absolutely  necessary  to  the  validity  of  the  deed.^  In  dis- 
cussing what  constitutes  a  deed,  its  requirements  will  be 
considered  first,  and  then  the  component  parts,  in  an  orderly 
arrangement. 

§  651.  Requisites,  what  they  are. —  The  following  may  be 
stated  as  including  all  the  essentials  of  a  deed,  viz.:  (1)  a 
sufficient  writing;  (2)  proper  parties,  grantor  and  grantee; 
(3)  a  thing  to  be  granted ;  (4)  a  consideration ;  (5)  execution, 
i.  e.,  signing,  sealing,  attestation,  and  acknowledgment;  (6) 
delivery  and  acceptance;  (7)  registration.  These  will  be 
considered  in  their  regular  order. 

§  552.  A  sufficient  writing,  what  constitutes. —  "Without 
meeting  with  any  positive  adjudication,  it  seems  to  be  the 
accepted  opinion  of  all  the  courts  and  treatise-writers  that  to 
make  a  valid  deed  it  must  be  written  on  parchment  or  paper, 
it  being  supposed  that  these  two  materials  are  more  durable, 

13  Washburn  on  Real  Prop.  239;  Co.  Lit.  171  b;  Van  Santwood  v. 
Sandford,  12  Johns.  198;  Hutchins  v.  Byrnes,  9  Gray  367;  Taylor  v. 
Morton,  6  Dana  365;  Hammond  v.  Alexander,  1  Bibb  333. 

784 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    553 

and  less  capable  of  erasure  or  alteration.^  This  objection  goes 
more  to  the  inadvisability  of  uscing  other  materials,  from  the 
individual  standpoint  of  the  parties,  rather  than  to  establish  a 
ground  for  holding  the  deed  to  be  .otherwise  invalid.  There 
can  be  no  objection  in  principle  to  a  deed  written  on  cloth  or 
on  unprepared  skins  of  animals,  as  long  as  the  writing  remains 
unobliterated.  And  the  reason  fails  altogether  if  the  writing 
is  carved  on  stone  or  engraved  on  metal.  The  writing  must 
clearly  manifest  the  intention  of  the  parties,  and  contain  the 
entire  agreement.  If  any  uncertainty,  either  as  to  the  par- 
ties or  the  subject-matter,  appears  on  the  face  of  the  deed, 
and  cannot  be  explained  away  by  a  reference  to  other  parts 
of  the  same  deed,  or  by  some  other  deed  expressly  referred 
to,  parol  evidence  will  not  be  admitted  for  that  purpose,  and 
the  deed  will  be  void  for  the  want  of  certainty.^  But  it  is 
not  necessary  to  the  validity  of  the  deed  that  there  should  be 
a  strict  observance  of  the  rules  of  grammar  or  rhetoric;  as 
long  as  the  intention  and  meaning  of  the  parties  can  be 
gathered  from  the  instrument,  the  law  does  not  require  ac- 
curacy or  precision  of  language.* 

§  553.  A  sufficient  writing,  what  constitutes  —  Continued. — 
But  in  order  that  a  deed  may  be  valid  as  a  conveyance,  the 
writing  must  be  completed  in  all  its  essential  parts  before  it 
is  delivered.  Any  alteration  or  filling  up  of  blanks  after 
delivery  will  not  give  life  to  the  deed.''     But  though  there  is 

23  Washburn  on  Real  Prop.  240;  Co.  Lit.  35  b;  2  Bla.  Cora.  297; 
Warren  v.  Lynch,  5  Johns.  240. 

33  Washburn  on  Real  Prop.  266;  Boardman  f.  Reed,  6  Pet.  345; 
Deery  t;.  Cray,  10  Wall.  270;  Peck  v.  Mallams,  10  N.  Y.  630;  Andrews 
r.  Todd,  50  N.  H.  565;  Hill  v.  Mowry,  6  Gray  551;  Fenwick  v.  Floyd, 
1  Har.  &  G.  172;  Tliomas  v.  Turney,  lb.  437. 

♦  3  Washburn  on  Real  Prop.  240 ;  Shrewsbury's  Case.  9  Rep.  48 ; 
Walters  v.  Bredin,  70  Pa.  St.  237;  Moorehead  v.  Scovill  (Pa.  1904),  00 
Atl.  Rep.  13. 

53  Washburn  on  Real  Prop.  240;  Burns  v.  Lynde,  6  Allen  305;  Dun- 
can f.  Hodges,  4  McCord  239;  Perminter  v.  McDaniel,  1  Hill  (S.  C.) 
267. 

60  785 


§  553  REQUISITES  OP  A  DEED.  [PART  III. 

110  variance  among  the  decisions  in  respect  to  the  correctness 
of  this  position,  that  the  deed  must  be  completed  before  it  is 
delivered  to  the  grantee  in  order  to  be  valid,  it  is  impossible 
to  reconcile  the  authorities  upon  the  question,  whether  the 
delivery  after  its  completion  may  not  be  made  by  an  agent 
under  a  parol  authority.  In  the  early  case  of  Texira  v. 
Evans,**  it  was  held  that  a  bond  which  was  signed  by  the 
obligor,  but  in  which  the  sum  was  left  blank,  and  was  after- 
wards filled  in  by  an  agent  and  by  him  delivered  to  the 
obligee  according  to  the  parol  authority  of  his  principal,  was 
good  and  binding  upon  the  parties.  This  case  has  been  often 
commented  upon,  and  in  the  cases,  cited  in  the  note  below, 
repudiated,  and  the  contrary  doctrine  established  that  the 
deed  must  be  completed  before  it  leaves  the  hands  of  the 
grantor,  or  there  must  be  a  second  delivery  by  him.  An  agent 
cannot  deliver  it,  unless  he  obtains  his  authority  from  a  power 
of  attorney  under  seal.''  On  the  other  hand,  the '  principle 
has  been  sustained  by  the  courts  of  some  of  the  States.^  The 
weight  of  authority  in  this  country  is  certainly  in  favor  of 
the  position  that  a  second  delivery  is  necessary,  although  the 
better  opinion  would  seem  to  be  that  the  completion  and 
delivery  of  the  deed  may  be  done  by  an  agent  as  effectively  as 
by  the  principal.  This  rule  would  give  ample  security  to 
the  grantor  against  any  fraudulent  transactions,  while  it 
would  make  the  title  of  the  grantee  more  secure. 

e  1  Anstr.  228. 

T  Hibblewhite  v.  McMorine,  6  Mees.  &  W.  200 ;  Davidson  v.  Cooper, 
11  M.  &  W.  794;  Drury  v.  Foster,  2  Wall.  24;  Basford  v.  Pearson,  9 
Allen  388;  Vose  v.  Dolan,  108  Mass.  159;  Viser  v.  Rice,  33  Texas  130; 
Cummings  v.  Cassily,  5  B.  Men.  74;  Conover  v.  Porter,  14  Ohio  450; 
Simms  v.  Harvey,  19  Iowa  290;  People  V.  Organ,  27  111.  29;  Upton  v. 
Archer,  41  Cal.  85;  Hammerslough  v.  Cheatham,  84  Mo.  13;  De  Argu- 
ello  V.  Bours,  67  Cal.  447;  Vaca  Val.,  etc.,  R.  R.  Co.  v.  Mansfield,  84 
Cal.  560,  24  Pac.  Rep.  145.  See  also,  Bullin  v.  Hancock  (N.  C.  1905), 
50  S.  E.  Rep.  621. 

8  Inhabitants,  etc.,  v.  Huntress,  53  Me.  90;  McDonald  v.  Eggleston, 
26  Vt.  161;  Van  Etta  v.  Evanson,  28  Wis.  33;  Devin  v.  Himer,  29 
Iowa  301;  Phelps  v.  Sullivan,  140  Mass.  36,  54  Am.  Rep.  442;  State  V. 
786 


CH.    XXIII.]j  REQUISITES   OF   A   DEED.  §    554 

§  554.  Alterations  and  interlineations. —  It  is  also  an  im- 
portant question  how  far  alterations  and  interlineations  may- 
be made  in  a  deed  without  affecting  its  validity.  Lord  Coke 
states  that  in  ancient  times  an  erasure  or  interlineation  would 
invalidate  the  deed  at  whatever  time  it  was  made.®  But  now, 
as  it  was  even  in  the  days  of  Coke,  erasures  and  interlinea- 
tions do  not  invalidate  the  deed.  But  in  order  that  the  deed 
may  take  effect  as  modified  by  the  interlineation  or  erasure, 
the  alteration  must  have  been  made  before  the  delivery  of 
the  deed.^*'  It  has  been  held  that  it  may  be  made  after  ac- 
knowledgment ;  but  if  the  alteration  enlarges  the  scope  of  the 
conveyance  there  must  be  a  new  acknowledgment.^*  It  is, 
however,  doubtful  upon  whom  the  burden  lies,  to  prove  that 
the  alteration  was  made  before  delivery.  "Where  the  alteration 
is  in  an  unimportant  part  of  the  deed  the  question  does  not  be- 
come important.  But  if  the  change  is  made  in  an  essential 
part,  some  of  the  authorities  treat  the  erasure  or  interlineation 
as  extremely  suspicious,  and  throw  the  burden  of  proof  upon 
the  grantee.  The  presumption  of  law,  according  to  these  au- 
thorities, is  that  it  was  made  after  delivery.*^  The  courts  of 
Massachusetts  and  other  States  deny  that  there  is  any 
presumption  of  law  in  respect  to  the  matter,  but  hold  that 
the  burden  of  proof  is  thrown  upon  the  party  relying  upon 
the  deed.*^  The  following  quotation  from  the  court  of  Mis- 
souri may,  perhaps,  furnish  the  correct  rule:  "As  a  general 
rule,  if  any  presumption  at  all  is  indulged,  the  law   will 

Matthews,  44  Kan.  596.     See,  as  to  delivery  through  third  party,  Black- 
ford V.  Almstead   (Mich.  1905),  104  N.  W.  Rep.  47. 
»  Co.  Lit.  225  b. 

10  3  Washburn  on  Real  Prop.  244;  Jordan  v.  Stevens,  51  Me.  78;  Bas- 
sett  V.  Bassett,  55  Me.   126;  Gordon  t?.  Sizer,  39  Miss,  818. 

11  Webb.  r.  Mullins,  78  Ala.  111. 

12  United  States  v.  Linn,  1  How.  104;  Clifford  v.  Parker,  2  Mann.  & 
G.  909;  Morris  V.  Venderen,  1  Dall.  67;  1  Greenl.  on  Ev.,  Sec.  564; 
Galland  v.  Jackman,  26  Cal.  85. 

18  Ely  V.  Ely,  6  Gray  439;  Wilde  v.  Armsby,  6  Cush.  314;  Knight  v. 
Clements,  8  A.  &  E.  215;  Jackson  v.  Osbom,  2  Wend.  555;  Herrick  v. 
Malin,  22  Wend.  388;   Comstock  v.  Smith,  26  Mich.   306.     See,  alsO; 

787 


§  555  REQUISITES  OP  A  DEED.  [PART  HI. 

presume  that  the  alteration  was  made  before,  or  at  least  con- 
temporaneous with,  the  signing  of  the  writing,  unless  peculiar 
circumstances  are  patent  upon  its  face;  and  even  then  the 
whole  question  is  one  for  the  jury  to  settle  upon  the  facts, 
when  and  where,  and  with  what  intent,  the  alteration  was 
made,"'*  The  safer  plan,  and  the  one  adopted  by  all  careful 
conveyancers,  when  alteration  in  the  body  of  the  deed  are 
necessary  is  to  note  the  erasure  or  interlineation  upon  the  in- 
strument, and  generally  above  the  attestation  clause,  to  show 
that  it  was  made  before  the  delivery.  But  no  subsequent 
alteration  of  the  deed,  not  even  its  destruction,  can  have  any 
effect  upon  the  title  which  has  been  passed  by  the  deed,^'^ 
although  it  would  be  fatal  to  any  action  upon  the  covenants  in 
the  deed  if  the  deed  is  fraudulently  destroyed  or  a  material 
alteration  is  made  in  the  covenant."  But  if  a  deed  is 
destroyed  without  the  fault  of  the  grantee,  he  may  resort  to 
equity  to  compel  the  grantor  to  give  him  a  new  deed,^^  or 
the  contents  may  be  proved  by  parol  evidence,  after  the  loss 
of  the  deed  has  been  established.^* 

§  555.  Proper  parties  —  The  grantor. —  It  needs  only  to  be 
stated,  to  receive  immediate  recognition,  that  to  make  a  valid 

Messi  V.  Freehede  (La.  1904),  37  So.  E«p.  600;  Gaskins  v.  Allen  (N.  C. 
1905),  49  S.  E.  Rep.  919. 

1*  McCormick  v.  Fitzmorris,  39  Mo.  34 ;  Matthews  v.  Coalter,  9  Mo. 
705.     See,  also,  Gunkle  v.  Seiberth   (Ky.  1905),  85  S.  W.  Eep.  733. 

15  Davis  V.  Cooper,  11  Mees.  &  W.  800;  Bolton  V.  Carlisle,  2  H.  Bl. 
263;  Roe  r.  York,  6  East  86;  Chessman  V.  Whittemore,  23  Pick.  231; 
Lewis  r.  Payne,  8  Cow.  71;  Jackson  v.  Chase,  2  Johns.  84;  Raynor  t'. 
Wilson,  6  Hill  469;  Rifener  V.  Bowman,  53  Pa.  St.  318;  Wood  V.  Hilder- 
brand,  46  Mo.  284. 

16 Davidson  r.  Cooper,  11  Mees.  &  W.  800;  Deem  v.  Phillips,  5  W.  Va. 
168 ;  Woods  V.  Hilderbrand,  46  Mo.  284.  As  where  the  word  "  Trus- 
tee," after  the  grantee's  name,  is  erased.  Flitcaft  V.  Title  &  Tr.  Co. 
(Pa.  1905),  211  Pa.  114,  60  Atl.  Rep.  557. 

17  King  V.  Gilson,  32  111.  354. 

18  Wallace  v.  Harmstad,  44  Pa.  St.  492;  Shaumberg  v.  Wright,  39 
Mo.  125. 

788 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    556 

deed  there  must  be  a  competent  grantor.  He  must  own  the 
property,  and  have  the  capacity  to  convey.  The  number  of 
persons  who  are  in  this  respect  under  disability  is  very  small, 
and  may  all  be  included  in  the  classes  known  as  infants,  non 
compotes  mentis,  and  married  women.  The  disabilities  resting 
upon  these  persons  are  not  uniform  in  their  extent,  and  vary 
in  reference  to  each  class.  In  respect  to  some  the  deeds  are 
absolutely  void,  while  as  to  others  they  are  only  voidable. 
They  will  be  discussed  separately. 

§  556.  Infants  and  insane  persons. —  As  a  general  propo- 
sition, it  may  be  stated  that  the  deeds  of  infants  ^®  and 
lunatics  ^'^  are  placed  in  respect  to  their  validity  on  the  same 
basis,  and  are  held  to  be  voidable  and  not  void.  But  if 
the  insane  person  is  under  guardianship,  the  deed  will  be 
absolutely   void ; "    while   in   New   York   and    Pennsylvania 

19  Tucker  V.  Moreland,  10  Peters  58;  Phillips  r.  Green,  3  Marsh.  A. 
K.  7,  13  A.  M.  Dec.  124;  Roof  V.  Staflford,  7  Cowen  180;  Moore  V. 
Abernathy,  7  Blackf.  442;  Kendall  v.  Lawrence,  22  Pick.  540,  543; 
Jenkins  r.  Jenkins,  12  Iowa  195,  198;  Breckenridge  v.  Ormby,  1  Marsh. 
J.  J.  245,  19  Am.  Dec.  71;  Cook  v.  Tounibs,  36  Miss.  685;  Slaughter  V. 
Cunningham,  24  Ala.  260,  60  Am.  Dec.  463;  Zouch  v.  Parsons,  3  Burr 
1794,  1805;  Boston  Bank  V.  Chamberlin,   15  Mass.  211. 

20  Riggan  v.  Green,  80  N.  C.  236 ;  Breckenridge  v.  Ormsby,  1  Marsh. 
J.  J.  2,36,  19  Am.  Dec.  71;  Freed  v.  Brown,  55  Ind.  310;  Jackson  t\ 
Gumaer,  2  Cowan  552;  Desilver's  Est.,  5  Rawle  111,  28  Am.  Dec. 
645;  Bensell  V.  Chancellor,  5  Whart.  376,  34  Am.  Dec.  561;  Seaver  f. 
Phelps,  11  Pick.  304,  22  Am.  Dec.  372;  Thomas  V.  Hatch,  3  Sum.  170; 
Eaton  V.  Eaton,  8  Vroom.  103;  Summers  v.  Pumphrey,  24  Ind.  231; 
Tucker  v.  Moreland,  10  Peters  58.  But  see  Van  Dusen  v.  Sweet,  51  N. 
Y.  378,  383. 

21  Wait  t:  Maxwell,  5  Pick.  217;  Griswold  v.  Butler,  3  Conn.  231; 
Pearl  r.  McDowell,  3  J.  J.  Marsh.  658;  Wait  v.  Maxwell,  5  Pick.  217, 
16  Am.  Dec.  391;  Fitzhugh  V.  Wilcox,  12  Barb.  235;  Mohr.  v.  Tulip,  40 
Wis.  66;  Hovey  V.  Hobsen,  53  Me.  451;  Elston  v.  Jasper,  45  Texas 
409;  Van  Dusen  V.  Sweet,  51  N.  Y.  378;  Nichol  V.  Tliomas,  53  Ind.  42; 
Leonard  f.  Leonard,  14  Pick.  280;  Rogers  v.  Walker,  6  Pa.  St.  371,  47 
Am.  Dec.  470.  But  see  Hunt  v.  Hunt,  2  Beasl.  181.  See  Keely  v. 
Moore,  196  U.  S.  38,  49  L.  Ed.  232.  "A  deed  executed  by  a  person 
of  unsound  mind  is  voidable  only."    Logan  v.  Vanarsdall    (Ky.   1905), 

789 


§  556  REQUISITES  OF  A  DEED.  [PART  HI, 

the  deed  of  an  insane  person  seems  under  all  circumstances 
to  be  void.*^  But  it  is  often  difficult  to  determine  what  de- 
gree of  sanity  is  sufficient  to  enable  a  person  to  make  a  good 
and  valid  deed.  The  question  is  no  doubt  one  of  fact, 
whether  the  person  has  sufficient  strength  of  mind  to  under- 
stand the  nature  and  consequences  of  the  act  of  conveyance. 
The  fact  that  his  mental  powers  have  been  impaired  will  not 
invalidate  the  deed,  provided  they  have  not  been  so  far  af- 
fected as  to  make  him  incapable  to  transact  business,  and  to 
protect  his  interests  to  a  reasonable  degree.-^  But  deeds  of 
both  infants  and  lunatics  may  be  made  valid  by  a  subsequent 
ratification;  in  the  case  of  infants  after  coming  of  age,  and 
with  lunatics  after  the  mental  disturbance  has  passed  away. 
The  deed  may  be  avoided  only  by  the  infant  or  lunatic,  or  by 
his  guardian,  personal  representative  or  heirs. ^*     In  order  to 

86  S.  W.  Rep.  981.  See  also,  McPeck's  Heirs  v.  Graham's  Heirs  (W. 
Va.  1904),  49  S.  E.  Rep.  125. 

22  Van  Deusen  v.  Sweet,  51  N.  Y.  384;  Matter  of  Desilver,  5  Rawle 
111.  But  see  Roof  v.  Stafford,  7  Cow.  180;  Bool  V.  Mix,  17  Wend.  119; 
Ingraham  t".  Baldwin,  9  N.  Y.  45. 

23  Dennett  v.  Dennett,  44  N.  H.  538 ;  Doe  v.  Prettyman,  1  Houst.  339 ; 
In  re  Barker,  2  Johns.  Ch.  232;  Dennett  i;.  Dennett,  44  N.  H.  531.  See 
Northwestern  Mut.  Fire  Ins.  Co.  v.  Blankenship,  94  Ind.  535,  48  Am. 
Rep.  185.  See  Hovey  v.  Hobson,  55  Me.  256;  Osmond  v.  Fitzroy,  3  P. 
Wms.  129;  Carpenter  v.  Carpenter,  8  Bush  283;  Shelford  on  Lun.  37; 
Titcomb  v.  Vantyle,  84  111.  371;  Odell  v.  Buck,  21  Wend.  142;  Jackson 
V.  King,  4  Cowen  207,  15  Am.  Dec.  354;  Sprague  v.  Duel,  1  Clarke  90, 
11  Paige  480;  Kennedy  v.  Marrast,  46  Ala.  161;  Jackson  V.  King,  4 
Cowen  216,  15  Am.  Dec.  354;  Allore  v.  Jewell,  94  U.  S.  (4  Otto)  506, 
510;  Harding  v.  Hardy,  11  Wheat.  125;  Kemson  V.  Ashbee,  10  Ch.  Cas. 
15;  Keeley  v.  Moore,  196  U.  S.  38. 

24  Arnold  v.  Townsend,  14  Phila.  216;  Campbell  V.  Kuhn,  45  Mich. 
513;  Cates  l'.  Woodson,  2  Dana  452;  Brown  V.  Freed,  43  Ind.  253; 
Judge  of  Probate  v.  Stone,  44  N.  H.  593;  Brown  V.  Caldwell,  10  Serg. 
&  R.  114,  13  Am.  Dec.  660;  Hartness  V.  Thompson,  5  Johns.  160;  Night- 
ingale V.  Withington,  15  Mass.  272,  7  Am.  Dec.  101;  Person  V.  Chase, 
37  Vt.  647;  Bozeman  v.  Browning,  31  Ark.  364;  "Veal  v.  Forbson,  57 
Texas  482;  Jones  f.  Butler,  30  Barb.  641;  Tillinghast  v.  Holbrook,  7  R. 
I.  230;  Vaughan  V.  Parr,  20  Ark.  600;  Gaskins  v.  Allen  (N.  C.  1905), 
49  S.  E.  Rep.  919. 

790 


CH.    XXIII.]  REQUISITES   OF   A  DEED.  §    557 

avoid  a  deed  made  by  an  infant  or  insane  person  it  has  been 
held  not  to  be  necessary  to  restore  the  consideration.-'^  But 
if  the  infant  or  lunatic  has  bought  property,  and  still  has  it 
when  the  minority  or  lunacy  terminates,  the  property  must  be 
restored  before  he  can  disaffirm. ^"^  An  infant  cannot  avoid 
his  deed  while  he  is  an  infant,  and  a  second  deed  during  in- 
fancy is  no  disaffirmance  of  the  first.  ^^ 

§  557.  Ratification  and  disaffirmance. —  "What  constitutes  a 
ratification  or  a  disaffirmance  is,  perhaps,  not  easy  of  solution. 
It  is  not  necessary  that  the  act  of  ratification  should  be  as 
formal  as  the  ordinary  release  of  an  outstanding  claim  of 

25  Kent's  Com.  236;  Hovey  v.  Hobson,  53  Me.  453;  Gibson  v.  Soper, 
6  Gray  279;  Cresinger  v.  Welch,  15  Ohio  156;  Kilbee  v.  Myrick,  12 
Fla.  419.  But  see  Thomas  v.  Hatch,  3  Sum.  170;  Edgerton  v.  Wolf,  6 
Gray,  456;  Mustard  v.  Wohlford,  15  Gratt  329,  343;  Bedinger  V.  Whar- 
ton, 27  Gratt  857;  Chandler  V.  Simmons,  97  Mass.  508;  Price  v.  Fur- 
man,  27  Vt.  268,  65  Am.  Dec.  194;  Dill  v.  Bowen,  54  Ind.  204;  Man- 
ning V.  Johnson,  26  Ala.  446;  Walsh  v.  Young,  110  Mass.  396,  399; 
Stout  V.  Merrill,  35  Iowa  47;  Kerr  V.  Bell,  44  Mo.  120;  Hillyer  V. 
Bennett,  3  Edw.  Ch.  222;  Rusk  v.  Fenton,  14  Bush  490;  Addison  V. 
Dawson,  2  Vern.  678.  And  see  Davis  Sewing  Machine  Co.  v.  Barnard, 
43  Mich.  379;  Fitzgerald  v.  Reed,  9  Smedes  &  M.  94;  Scanlan  v.  Cobb, 
85  111.  296;  Niell  v.  Morley,  9  Ves.  478;  Riggan  V.  Green,  80  N.  C.  236; 
Price  V.  Berrington,  3  Macn.  &  G.  486;  Carr  V.  Holliday,  1  Dev.  &  B. 
Eq.  344;  Eaton  V.  Eaton,  8  Vroom  108;  Millsap  V.  Estes  (N.  C.  1905), 
50  S.  E.  Rep.  227. 

2«Womack  v.  Womack,  8  Texas  397,  58  Am.  Dec.  119;  Brantley  v. 
Wolf,  60  Miss.  420;  Badger  V.  Phinney,  15  Mass.  359,  8  Am.  Dec.  805; 
Hillyer  v.  Bennett,  3  Edw.  Ch.  222;  Smith  v.  Evans,  5  Humph.  70; 
Kitchen  v.  Lee,  11  Paige  107,  42  Am.  Dec.  101;  Roof  v.  Stafford,  7 
Cowen  179;  Locke  v.  Smith,  41  N.  H.  346;  2  Kent.  Com.  240;  Gordon 
V.  Miller  (Mo.  App.  1905),  85  S.  W.  Rep.  943. 

2T  3  Washburn  on  Real  Prop.  250;  Bool  v.  Mix,  17  Wend.  119,  31  Am. 
Dec.  285;  McCormic  v.  Leggett,  8  Jones  (N.  C.)  425.  In  California 
this  is  changed  by  the  Code.  Civ.  Code,  Sec.  335;  Dunton  v.  Brown, 
31  Mich.  182;  Williams,  C.  J.,  in  Shipman  v.  Horton,  17  Conn.  482. 
See  Pitcher  v.  Laycock,  7  Ind.  398;  Slator  v.  Trimble,  14  I.  R.  C.  L. 
342;  McGan  r.  Marshall,  7  Humph.  121;  Jackson  v.  Carpenter,  11 
Johns.  131;  Cresinger  v.  Welch,  15  Ohio  156,  45  Am.  Dec.  565.  See 
Gaskina  f.  Allen  (N.  C  1905),  49  S.  E.  Rep.  919. 

791 


§  557  REQUISITES  OF  A  DEED.  [PART  111. 

title;  but,  on  the  other  hand,  the  act  or  acts,  from  which  the 
ratification  may  be  inferred,  must  be  a  sufficiently  strong  ad- 
mission of  the  title  of  the  grantee  to  give  rise  to  the  pre- 
sumption, that  the  quondam  infant  or  lunatic  intends  to 
ratify  his  deed.'*®  The  acceptance  of  a  lease,  an  oral  ac- 
knowledgment of  the  validity  of  the  conveyance,  the  subse- 
quent acceptance  of  the  consideration,  provided  these  acts  are 
done  intelligently,  will  be  a  sufficient  ratification.^"  So,  on  the 
other  hand,  an  entry,  the  institution  of  a  suit,  a  subsequent 
conveyance,  are  sufficient  acts  of  disaffirmance  to  avoid  the 
deed,  and  no  subsequent  ratification  of  the  first  deed  can  in- 
validate the  title  of  the  grantee  in  the  second  conveyance,  if 
the  second  deed  is  recorded.^"  So  far  the  courts  are  agreed. 
But  whether  a  mere  silent  acquiescence  will  operate  as  a  ratifi- 
cation is  a  disputed  point.  A  number  of  the  courts  hold  that, 
in  order  to  avoid  a  deed  made  under  disability,  it  must  be 
disaffirmed  within  a  reasonable  time  after  the  removal  of  the 
disability,  and  that  if  the  grantee  is  suffered  to  remain  in 
possession  for  a  long  time,  particularly  if  he  makes  valuable 
improvements  upon  the  premises,  the  deed  will  be  ratified, 
and  the  grantee's  title  made  good.^^     But  the  position  is  not 

28  Howe  t\  Howe,  99  Mass.  98.  "  A  deed  executed  by  a  married 
woman  while  a  minor  was  not  ratified  by  lapse  of  time  with  no  dis- 
affirmance for  more  than  20  years."  Gaskins  v.  Allen  (N.  C.  1905),  49 
S.  E.  Rep.  919. 

29  Irvine  f.  Irvine,  9  Wall.  618;  Bond  v.  Bond,  7  Allen  1;  Tucker  v. 
Moreland,  10  Peters  64;  Eaton  v.  Eaton,  8  Vroom.  108;  Arnold  v. 
Richmond  Iron  Works,  1  Gray  434;  Bobbins  v.  Eaton,  10  N.  H.  561; 
Boody  f.  McKenney,  23  Me.  517;  Tyler  on  Infancy  and  Coverture,  Sec. 
43;  2  Vent.  203;  Houser  v.  Reynolds,  1  Hayw.  (N.  C.)  143,  1  Am.  Dec. 
551;  Riggs  V.  Fisk,  8  Cent.  L.  J.  325;  Hughes  v.  Watson,  10  Ohio  127; 
Blankenship  V.  Stout,  25  111.  132;  Howe  v.  Howe,  99  Mass.  98;  Cole  V. 
Pennoyer,  14  111.  158.  See  Burton  v.  Anthony,  79  Pac.  Rep.  185  j 
Southern  Cotton  Oil  Co.  v.  Dukes  (Ga.  1905),  49  S.  E.  Rep.  788. 

30  Tucker  V.  Moreland,  10  Pet.  75;  Bond  V.  Bond,  7  Allen  1;  Jack- 
son V.  Carpenter,  11  Johns.  541;  Jackson  v.  Burchin,  14  Johns.  124; 
Williams,  C.  J.,  in  Shipman  v.  Horton,  17  Conn.  482;  Dunton  v.  Brown,. 
31  Mich.  182. 

31  Robins  v.  Eaton,  10  N.  H.  561;  Emmons  v.  Murray,  16  N.  H.  385; 

792 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    558 

sustained  by  the  other  courts,  which  maintain  that  mere  ac- 
quiescence will  not  operate  as  a  ratification,  unless  it  has  been 
so  long  continued  as  to  bar  the  right  of  action  under  the 
Statute  of  Limitations.^^ 

§  558.  Deeds  of  married  women*. —  It  may  be  stated  as  a 
general  proposition  that  the  deeds  of  married  women,  unless 
they  are  also  executed  by  their  husbands,  or  unless  it  is  other- 
wise provided  by  statute,  are  absolutely  void ;  and  if,  after  be- 
coming discovert,  a  second  conveyance,  or  a  second  delivery  of 
the  same  deed,  is  made,  the  deed  takes  effect  as  a  primary  con- 
veyance from  the  time  of  the  second  delivery,  and  not  as  a 
secondary  conveyance  confirmatory  of  the  prior  conveyance 
during  coverture.^'  Reference  is  not  made  here  to  her  sole 
and  separate  property.  This  species  of  property  is  an  equi- 
table estate  governed  by  the  rules  of  the  law  of  uses  and  trusts ; 
this  branch  of  the  subject  has  been  already  discussed,  and  the 
powers  of  married  women  in  relation  thereto  explained.'* 
But  in  a  number  of  the  United  States  statutes  have  been  en- 

Jackson  v.  Carpenter,  11  Johns.  539;  Hartley  v.  Wharton,  11  Ad.  &  E. 
934;  Wallace  r.  Lewis,  4  Har.  (Del.)  75;  Jones  v.  Butler,  30  Barb.  G41  ; 
Flinn  v.  Powers,  36  How.  Pr.  289;  Jamison  v.  Smith,  35  La.  An.  609; 
Green  V.  Wilding,  59  Iowa  679,  44  Am.  Rep.  696. 

32  Irvine  v.  Irvine,  9  Wall.  618;  Hovey  r.  Hobson,  53  Me.  453; 
Prout  V.  Wiley,  26  Mich.  164;  Thomas  v.  Pullis,  56  Mo.  211;  Wallace 
V.  Latham,  52  Miss.  291;  Stringer  V.  Northwestern  Mut.  Life  Ins.  Co., 
82  Ind.  100;  Tucker  v.  Moreland,  10  Peters  59;  Huth  f.  Carondelet,  56 
Mo.  202,  210,  per  Napton,  J.  See  Urban  r.  Grimes,  2  Grant  Cas.  96; 
Gillespie  v.  Bailey,  12  W.  Va.  70;  Sims  v.  Everhardt,  22  Alb.  L.  J.  445; 
Sims  V.  Bardoner,  86  Ind.  87,  44  Am.  Rep.  263;  Sims  v.  Smith,  86  Ind. 
577;  Shepley,  J.,  in  Boody  V.  McKenney,  23  Me.  517,  523;  Jackson  r. 
Carpenter,  11  Johns.  539;  Curtin  V.  Patten,  11  Serg.  &  R.  311.  See 
Gaskins  v.  Allen,  49  S.  E.  Rep.  919;  Vincent  v.  Blanton  (Ky.  1905),  85 
S.  W.  Rep.  703. 

33  Zouch  V.  Parsons,  3  Burr.  1805;  Allen  v.  Hooper,  50  Me.  374;  Hatch 
V.  Bates,  54  Me.  139;  Concord  Bank  v.  Bellis,  10  Cush,  277;  Davis  v. 
Andrews,  30  Vt,  681;  Perrine  v.  Perrine,  11  N.  J.  Eq.  144;  Lefevre  v. 
Murdock,  Wright  205;  Bressler  v.  Kent,  61  111.  426;  Cope  v.  Meeks,  3 
Head  388;  Goodright  V.  Straphan,  Cowp.  201. 

84  See  ante,  Sec.  348. 

793 


§  558  REQUISITES  OF  A  DEED.  [PART  HI. 

acted  abolishing  the  entire  common  law  in  relation  to  the 
property  rights  of  married  women,  and  giving  them  the  rights 
and  capacity  of  single  women."  In  Massachusetts  the  sepa- 
rate deed  of  a  married  woman  will  be  good  for  every  other 
purpose  except  to  convey  the  husband's  right  of  curtesy 
therein.^"  And  perhaps  it  may  be  doubtful  in  some  of  the 
other  States,  where  statutes  of  this  character  have  been 
passed,  whether  it  is  not  still  necessary  for  the  husband  to 
join  in  the  execution  of  the  deed,  in  order  to  bar  his  right 
of  curtesy.  In  New  York  the  husband's  curtesy  is  barred  by 
the  separate  conveyance  of  the  wife.^^  At  common  law  the 
only  mode  of  conveying  the  wife's  property  was  by  levying 
a  fine.^*  Subsequently,  by  statute,  3  &  4  Wm.  IV,  ch.  74,  a 
joint  conveyance  of  husband  and  wife,  when  properly  ac- 
knowledged, was  made  sufficient  to  convey  her  estate,  thus  do- 
ing away  with  the  necessity  of  the  fine.'®  And  still  later,  in 
1874,  by  statute  37  &  38  Viet.,  ch.  78,  when  any  estate  shall 
be  vested  in  a  married  woman  as  a  bare  trustee,  she  may  con- 
vey it  as  freely  as  if  she  were  a  feme  sole.*'^  But  in  this  coun- 
try fines  and  recoveries  were  never  recognized  as  modes  of 
conveying  the  interests  of  married  women,  and  instead  thereof 
it  has  from  the  early  colonial  days  become  customary  in  the 
United  States  for  married  women  to  convey  their  real  estate 
by  deed,  in  which  their  husbands  joined.  This  custom  has 
been  generally  recognized  wherever  the  common-law  disability 

35  See  ante.  Sec.  74. 

36Beal  V.  Warren,  2  Gray  458;  Willard  V.  Eastham,  15  Gray  334; 
Campbell  v.  Bemis,  16  Gray  487.  In  Alabama,  Connecticut,  Idaho,  Ken- 
tucky, North  Carolina  and  Pennsylvania,  the  husband  must  join  in 
the  deed  of  his  wife.  Winestein  v.  Marks  Co.,  59  Atl.  Rep.  496 ;  Karlson 
V.  Sawmill  Co.,  78  Pac.  Rep.  1080;  Smith  V.  Burton,  49  S.  E.  Rep.  64; 
Linton  v.  Moorhead,  209  Pa.  646,  59  Atl.  Rep.  264;  Collier  v.  Doe, 
ex  rel.  Alexander,  38  So.  Rep.  244;  Furnish  Admr.  v.  Lilly,  84  S.  W. 
Rep.  734. 

87  Yale  V.  Dederer,  22  N,  Y.  460 ;  Hatfield  v.  Sneden,  54  N.  Y.  287. 

38  3  Washburn  on  Real  Prop.  252 ;  Williams  on  Real  Prop.  229,  230. 

8»  Williams  on  Real  Prop.  230. 

40  Williams  on  Real  Prop.  232. 
794 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    558 

still  prevails,  and  has  been  adopted  as  law  and  incorporated 
into  the  statutes  of  the  different  States."  In  some  of  the 
States  certain  forms  of  conveyance  and  modes  of  execution 
are  prescribed  by  statute,  and  in  those  States  a  strict  com- 
pliance with  the  requirements  of  the  statute  is  necessary;  if 
it  is  not  executed  according  to  the  statute  the  conveyance  will 
be  void.*^  In  some  of  the  States  it  is  required  that  she  be 
examined  privately  by  an  officer  authorized  to  take  oaths,  and 
the  deed  acknowledged  by  her  as  her  free  act  and  deed,  and 
she  is  generally  required  to  state  further,  that  her  husband 
has  not  by  any  means  of  intimidation  prevailed  upon  her  to 
execute  it  against  her  will.*^  In  the  New  England  States,  and 
in  some  others,  a  privy  examination  is  not  required,  a  simple 
acknowledgment  being  sufficient,  and  in  some  of  the  States 
the  joint  conveyance  may  be  made  by  separate  deeds.**     It  is 

*i  Fowler  v.  Shearer,  7  Mass.  14 ;  Jackson  v.  Gilchrist,  15  Johns. 
110;  Lloyd's  Lessees  v.  Taylor,  1  Dall.  17;  3  Washburn  on  Real  Prop. 
252;  Williams  on  Real  Prop.  231,  Rawle's  note;  4  Kent's  Com.  152,  154; 
Blythe  v.  Dargin,  68  Ala.  370;  Holt  V.  Agnew,  67  Ala.  360;  Call  v. 
Perkins,  65  Me.  439;  Buchanan  v.  Hazzard,  95  Pa.  St.  240;  Concord 
Bank  v.  Bellis,  10  Cush.  276;  Powell  v.  The  Monson  &  B.  Manuf.  Co., 
3  Mason  347;  Manchester  v.  Hough,  5  Mason  67.  The  deed  of  a  mar- 
ried woman  to  her  land,  in  which  her  husband  fails  to  join,  is  valid  in 
New  York.  Hardwick  r.  Selzi,  93  N.  Y.  S.  265.  AlSo  in  Colorado. 
Patrick  v.  Morrow,  81  Pac.  Rep.  242.  See  Peter  v.  Byrne  (Mo.  1903), 
75  S.  W.  Rep.  433. 

<2  Hepburn  v.  Dubois,  12  Pet.  375;  El  wood  V.  Blackf.  13  Barb.  50; 
Askew  V.  Daniel,  5  Ired.  Eq.  321;  Rumfelt  v.  Clements,  46  Pa.  455; 
Thorndell  v.  Morrison,  25  Pa.  326;  Millenberger  V.  Croyle,  27  Pa.  170; 
Richards  v.  McClelland,  29  Pa.  St.  385;  Roseburg's  Exrs.  v.  Sterling's 
Heirs,  27  Pa.  292. 

<8  Albany  Fire  Ins.  Co.  v.  Pay,  4  N.  Y.  9;  Dundas  v.  Hitchcock,  12 
How.  256;  Elliott  v.  Pearce,  20  Ark.  508;  Askew  V.  Daniel,  5  Ired.  Eq. 
321;  Sc-ott  V.  Purcell,  7  Blackf.  66;  Holt  v.  Agnew,  67  Ala.  360;  Call 
V.  Perkins,  65  Me.  439;  Buchanan  v.  Hazzard,  95  Pa.  St.  240;  Sumner  V. 
Conant,  10  Vt.  20;  Blythe  V.  Dargin,  68  Ala.  370;  Evans  v.  Summerlin, 
19  Fla.  858.  This  is  still  the  law  in  Arkansas.  Wade  v.  Brown,  87 
S.  W.  Rep.  839. 

**4  Greenl.  Cruise,  19,  note;  3  Washburn  on  Real  Prop.  254,  255;  2 
Kent's  Com.  150-154;  Strickland  v.  Bartlett,  51  Me.  355;  Bean  v. 
Boothby,   57  Me.  295;    Woodward   v.   Seaver,  38  N.   H.  29;    Frary  V. 

795 


§  558  REQUISITES  OF  A  DEED.  [PART  III. 

also  generally  necessary  that  the  deed,  in  order  to  pass  the 
wife's  property,  must  contain  words  of  grant  which  expressly 
or  impliedly  refer  to  her,  and  proceed  from  her.  Merely 
signing  a  deed,  in  which  the  husband  is  represented  as  con- 
veying his  right  or  interest  in  the  property,  will  not  make  it 
her  deed.  She  must  be  joined  with  him  in  the  operative  words 
of  the  deed.*"*  But  generally  there  will  be  a  sufficient  join- 
ing of  the  husband  in  the  deed  if  he  signs  it.  It  is  not  neces- 
sary for  him  to  be  mentioned  in  the  deed  as  one  of  the 
grantors.*^  And  where  both  are  mentioned  as  grantors  the 
deed  may  be  made  to  convey  not  only  her  property,  but  also 
his  independent  interests  in  the  same.*^  In  several  of  the 
States  it  is  provided  by  statute  that  a  married  woman  will 
have  the  powers  and  capacity  of  single  women,  if  her  hus- 
band has  deserted  her,  or  has  been  consigned  to  prison,  or 
has  become  incapable  of  executing  deeds  from  any  other 
cause.**  It  is  impossible  to  present  within  any  narrow  com- 
pass the  details  of  the  law  in  respect  to  property  rights  of 
married  women,  as  it  prevails  in  the  different  States.  Ref- 
erence must  be  had  to  the  statutes  and  decisions  of  the  State 
in  which  the  question  arises. 

Booth,  37  Vt.  ^8.  The  joint  acknowledgment  of  husband  and  wife  is 
all  the  Missouri  law  requires.     Peter  v.  Byrne,  75  S.  W.  Rep.  433. 

45  Agricultural  Bank  v.  Rice,  4  How.  225 ;  Dundas  V.  Hitchcock,  12 
How.  256;  Melvin  v.  Props,  of  Locks  and  Canals,  16  Pick.  137;  Learned 
V.  Cutler,  18  Pick.  9;  Purcell  v.  Goshorn,  17  Ohio  105;  Cox  v.  Wells,  7 
Blackf.  410;  Stearns  V.  Swift,  8  Pick.  532. 

46  Hills  V.  Bearse,  9  Allen  406;  Elliott  v.  Sleeper,  2  N.  H.  525;  Wood- 
•ward  V.  Seaver,  38  N.  H.  29;  Stone  v.  Montgomery,  35  Miss.  83;  Tn- 
goldsby  V.  Juan,   12  Cal.  564.     See  Collier  v.  Doe,  ex  rel.  Alexander 

(Ala.  19C5),  38  So.  Rep.  244. 

*'  Needham  r.  Judson,  101  Mass.  161. 

48GreenL  Cruise,  19,  20;  Gregory  v.  Pierce,  4  Mete.  478;  Abbott 
V.  Bayley,  6  Pick.  89;  Boyce  v.  Owens,  1  Hill  (S.  C)  8.  See  Dum  v. 
Stawers  (Va.  1905),  51  S.  E.  Rep.  366;  Furnish  Admr.  v.  Lilly  (Ky. 
1905),  84  S.  W.  Rep.  734;  McDaniels  v.  Sommons  (Ark.  1905),  86  S. 
W.  Rep.  997 ;  Stephens  r.  Stephens,  85  S.  W.  Rep.  1093.  The  husband's 
deed  alone  is  color  of  title  as  against  the  wife.  Rose  v.  Ware  (Ky. 
1903),  74  S.  W.  Rep.  188.  But  see,  contra,  McNeely  v.  Oil  Co.  (W.  Va. 
1903),  44  S.  E.  Rep.  508. 
796 


CH.    XXIII.];  REQUISITES   OF   A   DEED.  §    559 

§  559.  A  disseisee  cannot  convey. —  Another  requisite  under 
the  head  of  competent  grantors  is,  that  the  grantor  is  seised 
at  the  time  of  the  conveyance.  If  the  land  is  in  the  adverse 
possession  of  another,  disseisin  leaving  nothing  in  him  but  a 
chose  in  action,  the  grantor  is  prohibited  at  common  law  from' 
conveying  this  interest.  This  prohibition  has  been  retained 
in  a  number  of  the  States,  to  which  reference  is  made  in  the 
cases  cited  below.*"  It  has  also  been  held  that  the  disseisin  of 
a  mortgagor  will  invalidate  the  mortgage  and  the  assignment 
ot  it  by  the  mortgagee.""  But  the  deed  is  only  void  against 
the  parties  in  adverse  possession  at  the  time  of  the  conveyance. 
As  against  the  rest  of  the  world  and  between  the  parties  to  the 
deed,  it  is  good.''^  And  although  the  legal  title,  as  against 
the  disseisor,  remains  in  the  grantor  unaffected  by  the  grant, 
the  grantee  acquires  such  an  interest  in  the  land  as  will  en- 
able him  to  claim  the  land  against  the  grantor,  and  maintain 

*9Hathorne  v.  Haines,  1  Me.  238;  Foxcroft  v.  Barnes,  29  Mich.  128; 
Sohier  v.  Coffin,  101  Mass.  179;  Park  v.  Pratt,  38  Vt.  563;  Betsey  V. 
Torrance,  34  Miss.  132;  Ewing  t".  Savary,  4  Bibb  424;  Jackson  V. 
Ketchum,  8  Johns.  479 ;  Jackson  v.  Andrews,  7  Wend.  152 ;  Roberts  V. 
Cooper,  20  How.  467;  Thurman  r.  Cameron,  24  Wend.  87;  Burdick,  14 
R.  I.  574;  Bernstein  V.  Humes,  75  Ala.  241;  Stockton  V.  Williams,  1 
Dougl.  (Mich.)  .546;  Wade  v.  Lindsey,  6  Met.  407,  414;  Harral  v.  Lev- 
erty,  50  Conn.  46,  47  Am.  Rep.  608;  Burgett  V.  Taliaferro,  118  III.  503; 
Johnson  v.  Prairie,  94  N.  C.  773. 

50  Williams  v.  Baker,  49  Me.  428.  See  Deans  v.  Gay  (N.  C.  1903), 
43  S.  E.  Rep.  643. 

51  Wade  f.  Lindsey,  6  Mete.  407;  Farmer  v.  Peterson,  111  Mass.  151; 
White  V.  Fuller,  38  Vt.  204;  Park  V.  Pratt,  38  Vt.  553;  Livingston  V. 
Peru  Iron  Co.,  9  Wend.  511;  Betsey  v.  Torrance,  34  Miss.  138;  Brinley 
r.  Whiting,  5  Pick.  348,  355;  Loud  v.  Darling,  7  Allen  206;  Sohier  v. 
Coffin,  101  Mass.  179;  McMahan  V.  Bowe,  114  Mass.  140;  Snow  v.  Or- 
leans, 126  Mass.  453;  Alexander  r.  Carew,  13  Allen  72;  White  v.  Fuller, 
38  Vt.  204;  Betsey  V.  Torrance,  34  Miss.  138;  Park  v.  Pratt,  38  Vt.  553. 
But  see  Steeple  v.  Downing,  60  Ind.  484 ;  Brinley  v.  Whiting,  5  Pick. 
348;  Tabb  v.  Baird,  3  Call.  475;  Gibson  v.  Shearer,  1  Murph.  114.  But 
the  deed  of  a  disseisee,  who  has  not  held  possession  for  the  statutory 
period  will  not  pass  title  as  against  the  holder  thereof.  United  W.  J. 
Canal  Co.  v.  Con.  Fruit  Jar  Co.,  55  Atl.  Rep.  46;  Zwerble  r.  Myers,  95 
N.  W.  Rep.  597. 

797 


§  560  REQUISITES  OF  A  DEED.         [PART  HI. 

his  action  of  ejectment  against  the  disseisor  in  the  name  of 
the  grantor."^^  But  it  is  always  competent  for  the  grantor  to 
make  a  good  conveyance  of  lands  in  the  adverse  possession 
of  another  by  entering  upon  the  land  and  delivering  the  deed 
there.  His  entry  restores  the  seisin  to  him  for  the  time  be- 
ing, and  interrupts  the  continuity  of  the  adverse  possession.''^ 
This  doctrine  does  not  apply  to  incorporeal  hereditaments,  nor 
to  such  adverse  possession  of  strips  of  land  arising  from  a 
mistake  as  to  the  boundaries.'**  And  since  a  State  cannot  be 
disseised,  no  adverse  possession  will  invalidate  its  deed  of  con- 
veyance.*"*  These  principles  prevail  generally  in  this  coun- 
try, but  in  some  of  the  States  the  entire  doctrine  has  been  re- 
pudiated, and  it  is  there  held  that  disseisin  does  not  in  any 
way  affect  the  capacity  of  the  grantor  to  convey.**" 

§  560.  Fraud  and  duress. —  Not  only  must  there  be  a 
grantor  capable  of  making  a  conveyance,  but  the  deed  must 
be  a  free  and  voluntary  act.  If,  therefore,  he  is  induced  by 
fraud,  or  forced  by  threats  of  personal  injury,  to  make  a  con- 
veyance which  he  would  not  otherwise  have  made,  the  deed 
is  voidable.  By  restoring  the  consideration,  he  may,  within 
a  reasonable  time  after  the  discovery  of  the  fraud,  or  after 

52Brinley  v.  Whiting,  5  Pick.  348;  Sohier  V.  Coffin,  101  Mass.  179; 
Wade  V.  Lindsey,  6  Mete.  413;  Jaekson  v.  Leggett,  7  Wend.  380;  Liv- 
ingston V.  Peru  Iron  Co.,  9  Wend.  523;  Betsey  V.  Torrance,  34  Miss. 
138;  Stockton  v.  Williams,  1  Dougl.  (Mich.)  546;  Shartall  V.  Hinck- 
ley, 31  111.  219. 

63  Farwell  v.  Rogers,  99  Mass.  36;  Warner  v.  Bull,  13  Mete.  4. 

5<  Coming  v.  Troy  Iron  Factory,  40  N.  Y.  191;  Cleveland  v.  Flagg,  4 
Cush.  76;  Sparhawk  v.  Bogg,  16  Gray  585.  See  Handouf  i\  Haes  (Iowa 
1903),  95  N.  W.  Rep.  226. 

55  Ward  V.  Bartholomew,  6  Pick.  409 ;  People  v.  Mayor,  etc.,  28  Barb. 
240.  See  Doe  f.  Pugh  (Ala.  1903),  34  So.  Rep.  377.  See  also.  El  Paso 
V.  Bank,  74  S.  W.  Rep.  21. 

seCresson  v.  Miller,  2  Watts  272;  Poyas  v.  Wilkins,  12  Rich.  420; 
Bennett  v.  Williams,  5  Ohio  461;  Shortall  V.  Hinckley,  31  111.  219; 
Fetrow  v.  Merriweather,  53  111.  279;  Stewart  v.  McSweeney,  14  Wis. 
471;  Crane  v.  Reeder,  21  Mich.  82;  Crigler  v.  Mexico,  74  S.  W.  Rep. 
384. 

798 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    561 

he  is  removed  from  the  threatened  danger,  disaffirm  the  deed, 
and  recover  the  land.'^'^  What  will  constitute  such  a  duress 
as  to  avoid  a  deed  made  while  under  its  influence,  is  a  ques- 
tion which  is  determined  by  the  facts  of  each  case.  It  must 
be  such  a  duress  as  will  seriously  interfere  with,  or  take  away, 
the  will  power  of  the  grantor.  According  to  the  United 
States  Court,  "unlawful  duress  is  a  good  defense  if  it  in- 
cludes such  a  degree  of  constraint  or  danger,  either  actually 
inflicted  or  threatened  and  impending,  as  is  sufficient  in  se- 
verity or  apprehension  to  overcome  the  mind  and  will  of  a 
person  of  ordinary  firmness. "  °^  In  New  Hampshire  it  was 
held  necessary  that  the  duress  must  raise  the  apprehension  of 
loss  of  life,  limb  or  personal  property ;  ^^  while  it  has  been  held 
sufficient  duress  that  a  wife  signed  under  threats  of  abandon- 
ment by  the  husband,  and  in  another  case  under  a  threat  of 
criminal  prosecution  against  her  husband.®'*  Perhaps  no 
better  rule  can  be  laid  down  than  that  which  is  taken  from 
the  United  States  Supreme  Court,  regard  being  had,  in  its 
application  to  particular  cases,  to  the  age,  condition  and  sex 
of  the  parties. 

§  561.  Proper  parties  —  Grantees. —  All  persons,  as  a  gen- 
eral rule,  are  able  to  take  property  as  grantees,  infants,  per- 

8T2  Bla.  Com.  291;  3  Washburn  on  Real  Prop.  2G0j  Worcester  v. 
Eaton,  13  Mass.  371;  Bassett  v.  Brown,  105  Mass.  551;  Fisk  v.  Stubbs, 
30  Ala.  335;  Davis  v.  Fox,  59  Mo.  125;  Cook  v.  Moore,  39  Texas  255; 
Bacon's  Abridgement,  Tit.  Duress,  D. ;  Worcester  v,  Eaton,  13  Mass. 
377,  7  Am.  Dec.  155. 

58  United  States  v.  Huckabee,  16  Wall.  423;  Harmon  v.  Harmon,  61 
Me.  227,  14  Am.  Rep.  556;  State  v.  Sluder,  70  N.  C.  55;  Bosley  v. 
Schanner,  26  Ark.  280;  Beckwith  v.  Frisbie,  32  Vt.  559;  Maxwell  v. 
Griswold,  10  How.  242. 

B9  Evans  i'.  Gale,  18  N.  H.  401.  A  deed  by  parents,  to  prevent  the 
prosecution  of  their  son  by  the  grantee,  will  be  set  aside,  in  Texas. 
Medaris  v.  Cranberry,  84  S.  W.  Rep.  1070.  See  also,  McClelland  v. 
Bullis   (Colo.  1905),  81  Pac.  Rep.  771. 

00  Eddie  V.  Slimmons,  26  N.  Y.  12;  Topley  v.  Topley,  10  Minn  .460. 
See  Medaris  v.  Cranberry   (Texas  1905),  84  S.  W.  Rep.  1070. 

799 


§  561  REQUISITES  OF  A  DEED.         [PAET  m. 

sons  non  compotes  mentis,  married  women,  corporations,  etc.'^ 
But  from  the  necessity  of  the  case,  if  these  conveyances  are 
coupled  with  a  condition  imposing  duties  upon  the  grantee,  or 
contain  covenants  of  the  grantee,  the  grantee  under  disability 
cannot  be  compelled  to  perform  them.  And  if  in  conse- 
quence of  his  failure  to  perform,  the  conveyance  may  be 
avoided,  the  grantor's  only  remedy  is  to  recover  the  land. 
But  in  respect  to  married  women,  it  seems  that  the  assent  of 
the  husband  is  necessary  at  common  law  to  make  the  con- 
veyance to  the  wife  valid.  The  deed  is  otherwise  void.  And 
if  he  assents  to  the  conveyance  neither  she  nor  her  heirs  can 
disaffirm  the  deed  after  his  death. "^  Lord  Coke  maintains 
that  the  assent  of  the  husband  does  not  prevent  a  disclaimer 
by  the  wife  after  his  death."'  The  statutes  of  mortmain  in 
England  prohibit  corporations  from  taking  lands  by  purchase, 
unless  specially  authorized.  But  these  statutes  have  never 
prevailed  in  this  country,  except  in  Pennsylvania,  and,  there- 
fore, corporations  are  free  to  purchase  lands  to  any  amount, 
unless  specially  restrained  by  their  charters,®*  or  by  the  gen- 
eral laws  under  which  the  incorporation  was  obtained.  It  is 
customary,  however,  to  limit  the  amount  of  real  property 
which  a  corporation  may  hold,  and  the  State  may  confiscate 
whatever  lands  it  acquires  above  the  limit.  But  if  the  land 
exceeds  the  limit  in  consequence  of  the  rise  in  value,  it  will 
not  be  subject  to  forfeiture.®''     For  the  grant  of  an  immedi- 

«i  3  Washburn  on  Real  Prop.  267;  Melvin  v.  Proprs.,  etc.,  16  Pick. 
167;  Concord  Bank  r.  Bellis,  10  Cush.  278;  Spencer  v.  Carr,  45  N.  Y. 
410;  Mitchell  v.  Ryan,  3  Ohio  St.  387;  Rivard  v.  Walker,  39  111.  413; 
Cecil  V.  Beaver,  28  Iowa  241. 

62  Co.  Lit.  3  a ;  Butler  v.  Baker,  3  Rep.  26 ;  Whelpdale's  Case,  5  Rep. 
119;  Melvin  v.  Proprs.,  etc.,  16  Pick.  167;  Foley  v.  Howard,  8  Clark  36. 

G3Co.  Lit.  3  a. 

64  The  acquisition  of  land  by  a  corporation  not  specially  authorized 
by  its  charter  to  hold  land,  is  not  for  that  reason  unlawful.  Schneider 
V.  Sellers  (Texas  1905),  84  S.  W.  Rep.  417. 

65  3  Washburn  on  Real  Prop.  267 ;  Bogardus  v.  Trinity  Church,  4 
Sandf.  Ch.  633.  In  this  case  the  property,  when  acquired  by  the  cor- 
poration, yielded  an  income  of  £30,  and  by  the  remarkable  rise  in  the 

800 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §   562 

ate  estate  in  possession,  it  is  necessary  that  the  grantee  be  in 
esse,  and  if  it  be  shown  that  the  grantee  came  into  being  after 
the  conveyance,  it  will  avoid  the  deed.®®  But  this  is  not  nec- 
essary in  the  grant  of  remainders  and  future  contingent  es- 
tates.®^ 

§  562.  Proper  parties  named  in  the  deed. —  Not  only  must 
there  be  proper  parties,  grantor  and  grantee,  but  they  must 
be  named  in  the  deed.  Names  are  necessary  to  distinguish 
the  parties,  and  render  certain  who  are  the  grantor  and 
grantee.  The  object,  therefore,  is  attained  if  any  name  is 
used,  not  necessarily  the  true  name,  provided  means  are  pro- 
vided in  the  deed  for  ascertaining  the  true  parties.  A  man 
may  be  described  by  his  oflfice  or  by  his  relation  to  a  certain 
person.®*     And  a  mistake  in  the  Christian  name  or  in  the 

value  of  real  estate  in  the  city  of  New  York  the  income  was  increased 
to  $300,000. 

CO  Miller  v.  Chittenden,  2  Iowa  368;  Barr  v.  Schroeder,  32  Cal.  GIO; 
1  Wood  on  Conveyancing,  170,  172;  Perkins,  53;  3  Washburn  on  Real 
Prop.  (4  ed.)  266.  But  see,  Hall  v.  Wright  (Ky.  1905),  87  S.  W.  Rep. 
1129. 

87  Hall  V.  Leonard,  1  Pick.  27 ;  Morris  v.  Stephens,  46  Pa.  St.  200 ; 
Huss  V.  Stephens,  51  Pa.  St.  282;  3  Washburn  on  Real  Prop.  266,  267; 
Mellichamp  r.  Mellichamp,  28  S.  C.  125. 

08  A  grant  to  the  heirs  of  A.,  A.  being  dead,  is  good,  for  it  is  possi- 
ble to  ascertain  who  are  the  heirs  of  A.  Hogan  v.  Page,  2  Wall.  607; 
Ready  v.  Kearsley,  14  Mich.  225;  Cook  v.  Sinnamon,  47  111.  214;  Boone 
V.  Moore,  14  Mo.  420.  A  limitation  by  devise  to  the  heirs  of  a  living 
person  has  been  held  to  be  a  grant  to  the  person  and  his  heirs.  White 
V.  Rukes,  37  Fed.  Rep.  754.  In  Georgia  a  grant  to  heirs  of  a  living 
person  was  held  to  be  a  grant  to  his  children  born  and  living  at  the 
time  of  the  conveyance,  and  excluding  children  born  subsequently. 
Tharp  v.  Yarborough,  79  Ga.  382.  See,  also,  Pivard  v.  Gisenhof,  35  Hun 
247;  Heath  v.  Hewitt  (N.  Y.),  27  N.  E.  Rep.  959;  Crisswell  v.  Grumb- 
ling, 107  Pa.  St.  408.  A  grant  to  A,  and  his  partners  has  also  been 
held  good.  Hoffman  V.  Porter,  2  Brock.  156;  Morse  V.  Carpenter,  19  Vt. 
613.  Contra,  Arthur  v.  Weston,  22  Mo.  378.  So  likewise  to  a  partner- 
ship in  the  firm  name.  New  Vienna  Bank  v.  Johnson  (Ohio),  24  N.  E. 
Rep.  503;  Menage  v.  Burke,  43  Minn.  211.  But  see,  contra,  Ketchura 
V.  Barber  (Cal.),  12  Pac.  Rep.  251,  where  it  is  held  that  a  conveyance 
to  a  firm,  in  the  firm  name,  for  example  to  Henry  StuU  &  Co.,  passes 

51  801 


§  562  REQUISITES  OF  A  DEED.  [PART  III. 

name  of  a  corporation,  or  the  use  of  different  names  in  dif- 
ferent parts  of  the  deed  is  not  fatal,  provided  the  uncer- 
tainty arising  therefrom  is  not  incurable.  If  the  true  party 
can  be  ascertained,  the  deed  will  be  good."®  A  deed  to  one 
under  an  assumed  name  would  be  good,  if  the  real  grantee 
can  be  ascertained.''**  But  a  deed  to  a  fictitious  person,  or  to 
one  by  his  surname  only,  without  further  means  of  identify- 
ing the  person  intended,  would  be  void  for  uncertainty."  It 
has,  however,  been  held  that  where  the  Christian  name  is  left 
blank,  the  grantee,  being  in  possession  of  the  deed,  may  show 
by  parol  evidence  that  he  was  the  person  intended.'^  The 
law  knows  only  one  Christian  name.  The  omission  of  the 
middle  name  is,  therefore,  not  material ;  neither  is  a  mistake 
in  calling  the  party  senior,  when  he  is  the  junior  of  the 
name.''*     In  the  same  manner  a  mistake  in  the  Christian  name 

title  only  to  the  persons  whose  names  appear  in  the  firm  name.  See, 
also,  generally.  Dr.  Ayray's  Case,  11  Rep.  20;  Sir  Moyle  Finch's  Case, 
6  Rep.  65 ;  Shaw  v.  Loud,  12  Mass.  447.  A  grant  to  the  survivor  of 
two  persons  named  contains  a  proper  designation  of  the  grantee.  Mc- 
Kee  V.  Marshall  (Ky.),  5  S.  W.  Rep.  415.  "A  deed  'to  the  estate  of 
E.,  his  heirs  or  assigns,'  is  not  void  for  want  of  a  grantee,  but  conveys 
title  to  them  entitled  to  take  the  estate  of  E."  McKee  V.  Ellis  (Tex. 
Civ.  App.  1904),  83  S.  W.  Rep.  880. 

6»Boothroyd  V.  Engles,  23  Mich.  21;  Middleton  v.  Findla,  25  Cal.  80; 
Ashville  Division  v.  Aston,  92  N.  C.  578 ;  Grand  Tower,  etc.,  Co.  v.  Gill, 
111  111.  541;  Spinker  v.  Haagsman,  99  Mo.  208,  12  S.  W.  Rep.  659; 
McDuffie  V.  Clark,  9  N.  Y.  S.  826;  Galveston,  etc.,  R.  R.  Co.,  v.  Stealy, 
66  Texas  468,  1  S.  W.  Rep.  186 ;  Gould  v.  Barnes,  3  Taunt.  505 ;  Lind  v. 
Hook,  Mod.  Cas.  cited  Cro.  Elix.  807  n,  a;  James  v.  Whitbread,  11 
Com.  B.  406;  Reeves  v.  Slater,  7  Barn.  &  C.  489;  Williams  v.  Bryant, 
5  Mees.  &  W.  454.     See  Elliott  V.  Davis,  2  Bos.  &  P.  339. 

70  Wilson  V.  White,  84  Cal.  239,  24  Pac.  Rep.  114. 

71  Fanshaw's  Case,  F.  Moore,  229;  Jackson  v.  Corey,  8  Johns.  388; 
Hornbeck  V.  Westbrook,  9  Johns.  74;  Muskingum  Turnpike  v.  Ward,  13 
Ohio   120. 

72  Fletcher  v.  Mansur,  5  Ind.  269.  See  Morse  v.  Carpenter,  19  Vt. 
615. 

78  Games   v.    Stiles,   14   Pet.    322;    Dunn   v.    Games,    1    McLean    321 
Franklin  v.  Tallmadge,   5  Johns.   84;   Jackson  v.   Hart,   12  Johns.   77 
Jackson    v.    Miner,    15    Johns.  .226;    Jackson   v.    Cody,    9    Cowen    140 
802 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    563 

may  be  explained  by  a  reference  to  the  other  parts  of  the 
deed.^*  There  is  the  same  necessity  of  naming  in  the  deed 
the  person  who  is  to  take  the  equitable  interest  under  it  as 
to  name  the  grantee  of  the  legal  estate.^''  And  if  a  grant  is 
made  to  trustees  of  an  unincorporated  corporation,  the  per- 
sons named  as  trustees  take  individually  and  not  as  trustees.^" 
And  where  there  is  a  person  named  in  the  deed  as  the  grantee 
of  the  immediate  estate,  the  remainder-man  under  the  deed 
need  not  be  made  a  party  to  the  deed,  although  he  must  be 
named  or  sufficiently  described.^'  Finally,  in  order  that  a 
deed  may  be  valid,  there  must  be  a  definite  deed,  an  ascer- 
tained grantor  and  grantee,  and  if  there  is  an  incurable  un- 
certainty as  to  either,  arising  from  the  terms  of  the  deed,  it 
will  be  void.'^^  But  if  the  intent  of  the  grantor  can  be  ascer- 
tained, it  will  be  given  effect,  although  it  renders  nugatory 
some  clause  of  the  deed.  It  has  thus  been  held  that  the 
grantee  takes  a  life  estate  and  her  husband  the  remainder, 
although  in  another  part  of  the  deed  the  estate  was  limited 
to  the  wife  and  her  heirs.'' 

§  563.  A  thing  to  be  granted. —  In  order  that  there  may  be 
a  conveyance,  there  must  be  a  thing  to  be  conveyed,  and  this 
must  be  sufficiently  described  in  the  deed,  so  as  to  be  capable 

Roosevelt  v.  Gardiner,  2  Cowen  643;  Cobb  v.  Lucas,  15  Pick.  7;  Com- 
monw.  V.  Perkins,  1  Pick.  388;  Banks  v.  Lee,  73  Ga.  25. 

74  3  Washburn  on  Real  Prop.  265. 

"German  Assn.  v.  Scholler,  10  Minn.  33L  See  ante,  Sec.  331,  and 
post,   Sees.   640,  641. 

"Austin  V.  Shaw,  10  Allen  552;  Brown  v.  Combs,  29  N.  J.  L.  36; 
Tower  v.  Hale,  46  Barb.  361;  Den  v.  Hay,  21  N.  J.  L.  174.  See  post. 
Sees.  640,  641,  in  reference  to  the  devises  to  unincorporated  bodies. 

TT  Hornbeck  v.  Westbrook,  9  Johns.  73 ;  Hunter  v.  Watson,  12  Cal. 
363. 

Ts  Jackson  v.  Corey,  8  Johns.  388;  Hornbeck  v.  Westbrook,  9  Johns. 
74;  Hardin  v.  Hardin  (S.  C),  11  S.  E.  Rep.  102. 

T»Bean  v.  Kenmuir,  86  Mo.  666;  Bodine's  Admr.  v.  Arthur  (Ky.), 
14  S.  W.  Rep.  904.  See,  for  rule  in  Missouri,  in  grant  to  woman  and 
her  heirs.  Miller  v.  Dum,  83  S.  W.  Rep.  436.  See  also,  Schrecongost  v. 
West  (Pa.  1904),  59  Atl.  Rep.  269,  210  Pa.  7. 

803 


§  563  REQUISITES  OF  A  DEED.  [PART  HI. 

of  easy  identification.*"  It  may  now  be  stated  as  a  general 
rule,  subject  to  a  few  exceptions  to  be  mentioned  hereafter, 
that  every  freehold  interest  in,  or  issuing  out  of,  lands  must 
and  can  only  be  conveyed  by  deed.*^  And  whatever  is  cre- 
ated by  deed,  can  only  be  transferred  by  deed.*^  Not  only 
must  estates  in  the  land  itself  be  conveyed  by  deed,  but  in- 
corporeal hereditaments  of  a  freehold  character,  easements, 
profits  a  prendre,  the  mines  and  other  deposits  upon  the  land 
apart  from  the  soil,  all  require  a  deed  to  be  granted.*^  It  has 
been  a  much  debated  question  whether,  to  pass  the  title  to 
growing  or  standing  trees,  it  is  necessary  that  the  sale  should 
be  made  by  writing.  Some  authorities  hold,  notably  the  Eng- 
lish courts,  that  if  the  sale  contemplates  the  immediate  re- 
moval of  the  trees,  it  is  not  necessary  that  it  should  be  done 
by  deed  or  other  instrument  in  writing,  since  it  can  and  ought 
to  be  considered  a  sale  of  chattels  rather  than  an  interest  in 
the  freehold.**     On  the  other  hand,  the  courts  of  this  country 

80  See  post.  Sees.  590,  605,  for  a  diseussion  of  the  usual  elements  of  a 
description  of  the  land,  and  for  what  is  a  sufficient  description. 

81  3  Washburn  on  Real  Prop.  341.  Mr.  Washburn,  on  the  page  re- 
ferred to,  says  that  "  since  the  Statute  of  Frauds  (29  Charles  II,  Ch. 
3),  a  deed  has  been  required,  in  order  to  convey  a  freehold,  in,  to,  or 
out  of  any  messuages,  manors,  lands,  tenements,  or  hereditaments." 
The  Statute  of  Frauds  only  requires  such  conveyances  to  be  put  in 
writing,  and  does  not  require  a  deed.  When  this  section  (563)  was 
written,  the  author  had  entertained  the  generally  prevailing  idea  that 
a  deed,  t.  e.,  an  instrument  in  writing  under  seal,  was  necessary  to  con- 
vey all  freehold  interests  in  lands,  and  had  not  yet  written  Section  549, 
in  which  the  contrary  position,  with  qualifications,  has  been  assumed. 
Inasmuch  as  a  deed  is  necessary  in  the  conveyance  of  very  many  free- 
hold interests  —  for  example,  incorporeal  hereditaments  —  the  present 
section  has  not  been  altered;  but  the  statements  made  there  and  else- 
where must  be  read  in  the  light  of  Section  549. 

82  3  Washburn  on  Real  Prop.  341. 

83  3  Washburn  on  Real  Prop.  341.  See  ante.  Sec.  549.  For  requisites 
in  grants  of  mineral,  both  with  and  apart  from  the  surface  of  land,  see, 
White,  Mines  &  Min.  Rem.,  Chap.  IV,  et  sub. 

84  Smith  V.  Surman,  9  B.  &  C.  561;  Evans  V.  Roberts,  5  B.  &  C.  829; 
Marshall  V.  Green,  33  L.  T.  Rep.  (n.  s.)  404;  Bostwick  v.  Leach,  3 
Day  476.     But  in  Rodwell  v.  Phillips,  9  Mees.  &  W.  505,  contra,  the 

804 


CH.    XXIII.]  REQUISITES   OF  A   DEED.  §    563 

generally  hold  that  standing  trees  are  "a  part  of  the  inherit- 
ance, and  can  only  become  personalty  by  actual  severance, 
or  by  severance  in  contemplation  of  law  as  the  effect  of  a 
proper  instrument  in  writing. "  ^s  ^  g^ie  of  standing  trees  is  a 
twofold  contract.  It  includes  a  sale  of  trees  when  severed 
from  the  land,  which  must  necessarily  be  executory  in  its 
character,  and  a  license  to  go  upon  the  land  and  remove  them. 
Until  a  severance  has  been  made,  the  only  vested  interest 
which  the  vendee  has  is  the  license,  and  it  being  an  interest  in 
land,  it  is  revocable  unless  granted  by  a  proper  instrument  of 
conveyance.  Where  the  license  is  of  a  definite  duration,  it 
being  then  a  leasehold  interest  in  the  land,  a  deed  strictly  so- 
called  will  not  be  necessary.  But  if  it  is  indefinite,  it  becomes 
a  freehold  interest  in  lands,  and  requires  a  deed  to  grant  it.** 
Standing  trees  and  other  things  growing  upon  the  land  cer- 
tainly pass  with  the  conveyance  of  the  freehold,  unless  ex- 
pressly excepted.'^  If,  therefore,  a  sale  is  made  of  standing 
trees  with  a  parol  license  to  enter  and  cut  them,  it  does  not 
prevent  the  title  to  the  trees  from  passing  to  a  subsequent 

court  say :  "  It  must  be  admitted,  taking  the  cases  altogether,  that  no 
general  rule  is  laid  do%vn  in  any  one  of  them  that  is  not  contradicted 
by  some  other."    See  Ross  v.  Cook  (Kan.  1905),  80  Pac.  Rep.  38. 

ssSlocum  V.  Seymour,  36  N.  J.  139;  Trull  V.  Fuller,  28  Me.  548; 
Green  v.  Armstrong,  1  Denio  5.50;  Giles  V.  Simonds,  15  Gray  441;  De- 
laney  v.  Root,  99  Mass.  548;  Poor  v.  Oakman,  104  Mass.  316;  White 
f.  Foster,  102  Mass.  378;  Buck  v.  Pickvvell,  27  Vt.  164, 

86  Clap  V.  Draper,  4  Mass.   206 ;   Green  V.  Armstrong,   1   Denio  554 
Kingsley  V.  Holbrook,  45  N.  H.  313;  Howe  v.  Batchelder,  49  N.  H.  208 
Sterling  v.  Baldwin,  42   Vt.   308;   Huff  v.  McCauley.  58  Pa.   St.   210 
Pattison's  Appeal,  61    Pa.   St.  297.     "  While  an  oral  contract  to  sell 
standing  timber  is  invalid  as  a  contract,  yet  it  is  good  as  a  license, 
and  timber  cut  before  the  revocation  thereof  becomes  the  property  of 
the  licensee."     Antrim  Iron  Co.  v.  Anderson    (Mich.   1905),  104  N.  W. 
Rep.  319,  12  Detroit  Leg.  N.  314. 

8T  Bracket  v.  Goddard,  54  Me.  313;  Noble  v.  Bosworth,  19  Pick.  314; 
Cook  V.  Whiting,  16  111.  481.  But  Chancellor  Kent  maintains  that 
growing  crops  do  not  pass  with  the  grant  of  the  land.  4  Kent's  Com. 
468;  Smith  v.  Johnston,  1  Pa.  St.  471.  See  Foote  v.  Colvin,  3  Johns. 
216;  Turner  v.  Reynolds,  23  Pa.  St.  199;  Mcllvaine  v.  Harris,  20  Mo. 
467.    See  also,  Brinson  &  Co.  v.  Kirkland  (Ga.  1905),  60  S.  E.  Rep.  369. 

805 


§    564  REQUISITES   OF   A   DEED.  [PART   III, 

grantee ;  the  license  by  such  subsequent  conveyance  is  revoked, 
and  the  licensee  is  left  to  his  remedy  against  his  licensor  for 
the  breach  of  his  executory  contract.^*  Some  of  the  courts 
are  also  inclined  to  treat  the  sale  of  annual  crops  as  the  sale 
of  chattels  instead  of  an  interest  in  lands.  This  is  undoubt- 
edly the  correct  theory,  qualified,  however,  by  the  statement 
that  the  sale  must  be  evidenced  by  some  writing,  in  order  to 
give  to  the  vendee  any  vested  interest  during  the  growth  of 
the  crop.  But  since  the  license  is  only  for  a  year,  or  less  than 
a  year,  any  writing  will  suffice.®* 

§  564.  A  thing  to  be  granted  —  Continued  —  A  mere  possi- 
bility.—  A  further  qualification  of  the  above  stated  general 
rule  is,  that  there  cannot  be  a  grant  of  a  mere  possibility,  un- 
less coupled  with  a  vested  interest.  It  must  be  a  vested  pres- 
ent future  estate.®**  But  this  rule  is  not  now  enforced  so 
rigidly  as  formerly.  Thus,  the  deed  of  an  heir  apparent  con- 
veying his  ancestor's  estates  has  been  held  to  attach  in  equity 
to  the  estate  upon  the  death  of  the  ancestor.®^  Also  a  grant 
by  a  soldier  of  bounty  lands  to  be  thereafterwards  given  to 
him  by  the  government.®^  So,  also,  can  there  be  a  grant  of  a 
right  of  redemption  from  a  mortgage  or  deed  of  trust.®^  And 
a  further  modification  is  attained  by  the  application  of  the 

88  Whitmarsh  v.  Walker,  1  Mete.  313;  Giles  v.  Simonds,  15  Gray  44 1. 

89  Crosby  v.  Wadsworth,  6  East  602;  Waddington  v.  Bristow,  2  B. 
&  P.  452 ;  Warwick  v.  Bruce,  2  M.  &  S.  205 ;  Evans  v.  Roberts,  5  B.  A 
C.  836 ;  Stewart  v.  Doughty,  9  Johns.  108 ;  Austin  v.  Sawyer,  9  Cow.  40 ; 
Powell  V.  Rich,  31  111.  469;  Graflf  V.  Fitch,  58  111.  377.  See  Ross  v. 
Cook,  80  Pac.  Rep.  38. 

90  Fulwood's  Case,  4  Rep.  66 ;  Dart  V.  Dart,  7  Conn.  255 ;  Baylor  v. 
Commonwealth,  40  Pa.  St.  37 ;  3  Washburn  on  Real  Prop.  348. 

91  Stover  V.  Eycleshimer,  46  Barb.  84;  Trull  v.  Eastman,  3  Mete.  121. 
But  this  is  true  only  where  the  conveyance  is  a  deed  with  covenant  of 
warranty.  Gardner  v.  Pace  (Ky.),  11  S.  W.  Rep.  779.  See,  also,  ante, 
Sees.  511,  512.  And  see  as  to  a  deed  not  to  be  delivered  until  the 
grantor's  death.    Thompson  v.  Calhoun,  216  111.  161,  74  N.  E.  Rep.  775. 

92  Jackson  v.  Wright,  14  Johns.  193. 
98  Lindley  V.  Crombie,  31  Jklinn.  232. 

806 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    565 

doctrine  of  estoppel  arising  on  a  covenant  of  title   in  the 
deed.'* 

§  565.  The  consideration. —  It  is  sometimes  stated  as  a  gen- 
eral proposition  that  a  consideration,  good  or  valuable,  is 
necessary  to  be  acknowledged  or  proved,  in  order  to  pass  the 
title  to  real  estate.  Without  qualification  and  explanation, 
this  is  incorrect  and  misleading.  All  common-law  convey- 
ances, properly  so-called,  which  operate  by  transmutation  of 
possession,  or  as  grants,  such  as  feoffments,  releases,  etc.,  and 
modern  statutory  conveyances,  where  the  statute  does  not  pro- 
vide otherwise,  will  be  effectual  to  pass  the  legal  estate  of  any 
interest  in  lands,  and,  except  in  the  case  of  the  grant  of  a  fee 
by  a  common-law  conveyance,  the  equitable  estate  also,  with- 
out resting  upon  any  consideration  whatever.®'*  And  where  a 
deed  can  operate  both  as  a  common-law  conveyance  and  as  a 
conveyance  under  the  Statute  of  Uses,  the  want  of  a  con- 
sideration will  not  prevent  it  from  passing  the  legal  title  as 
a  common-law  conveyance."*  A  common-law  conveyance 
passes  the  legal  title  without  a  consideration,  but  if  the  es- 
tate granted  is  a  fee  simple,  since  it  is  presumed  under  the 
doctrine  of  resulting  uses,  that  a  man  will  not  part  with  the 
beneficial  interest  in  real  property  without  receiving  some  con- 
sideration therefor,  the  use  or  equitable  interest  therein  re- 
sults to  the  grantor,  and  the  Statute  of  Uses  draws  the  legal 
seisin  out  of  the  grantee  and  revests  it  in  the  grantor.*^  But 
this  is  merely  a  legal  presumption,  and  may  be  rebutted  by 
other  evidence  appearing  in  the  deed  and  showing  a  contrary 
intention  on  the  part  of  the  grantor."    For  this  reason  it  is 

0*  See  ante,  Sees.  511,  512. 

88  Green  v.  Thomas,  11  Me.  318;  Laberee  v.  Carlton,  53  Me.  212; 
Bojmton  v.  Rees,  8  Pick.  332;  Winans  v.  Peebles,  31  Barb.  380;  Taylor 
V.  King,  6  Munf.  358;  Doe  v.  Hurd,  7  Blackf.  510;  Pierson  v.  Arm- 
strong, 1  Clark   (Iowa)   282;  Jackson  v.  Dillon,  2  Overt.  261. 

M  Cheney  v.  Watkins,  1  Har.  &  J.  527;  Den  v.  Hanks,  5  Ired.  30; 
Poe  r.  Domec,  48  Mo.  481.    See  ante.  Sees.  544,  548, 

OT  See  ante.  Sec.  329. 

08  See  ante,  Sec.  329. 

807 


§    565  REQUISITES   OP   A   DEED.  [PART   III. 

customary  in  Massachusetts,  and,  perhaps,  in  other  States,  in 
the  ordinary  deed,  to  grant  the  premises  to  the  grantee  and 
his  heirs,  to  his  and  their  use.  The  employment  of  the  itali- 
cised clause  excludes  the  idea  of  a  resulting  use.'"  Mr.  Wil- 
liams says:  "All  that  was  ultimately  effected  by  the  Statute 
of  Uses  was  to  import  into  the  rules  of  law  some  of  the  then 
existing  doctrines  of  the  courts  of  equity,  and  to  add  three 
words,  to  the  use,  to  every  conveyance."  ^  It  is,  however,  dif- 
ferent with  conveyances  which  operate  under  the  Statute  of 
Uses,  such  as  bargain  and  sale,  covenant  to  stand  seised,  lease 
and  release.  For  reasons  already  explained,^  in  all  three  of 
these  conveyances  a  consideration  is  necessary,  in  order  to 
raise  in  the  grantee  the  use  which  the  statute  is  to  execute. 
In  a  bargain  and  sale,  or  lease  and  release,  a  valuable  con- 
sideration was  necessary,  while  a  good  consideration  was  suffi- 
cient to  support  a  covenant  to  stand  seised.^  But  the  valu- 
able consideration  need  not  be  substantial  or  adequate,  in 
order  to  pass  title  as  between  the  parties.*  In  Missouri  it 
seems  doubtful  that  a  valuable  consideration  must  be  ac- 
knowledged or  proved  in  a  bargain  and  sale.^  And  in  Ten- 
nessee it  has  been  held  unnecessary  under  their  statute  to 
acknowledge  a  consideration  in  any  deed.^  But  if  there  be  a 
good  consideration  between  the  parties,  although  the  deed  be 

89  2  Washburn  on  Eeal  Prop.  440;  Williams  on  Real  Prop.  188;  2 
Sand,  on  Uses,  64-69. 

1  Williams  on  Real  Prop.  159.  160. 

2  See  ante.  Sees.  3.30,  539,  542. 

3  Goodspeed  v.  Fuller,  46  Me.  141 ;  Jackson  v.  Florence,  16  Johns.  47 ; 
Okison  V.  Patterson,  1  Watts  &  S.  395;  Boardman  v.  Dean,  34  Pa.  St. 
252;  Cheney  v.  Watkins,  1  Harr.  &  J.  527;  Kinnebrew  v.  Kinnebrew,  35 
Ala.  636. 

4Diefendorf  v.  Diefendorf,  8  N.  Y.  S.  617.  "A  conveyance  of  land 
in  consideration  of  love  and  affection  is  valid  between  the  parties." 
McKee  V.  West   (Ala.  1904),  37  So.  Rep.  740. 

5  Perry  v.  Price,  1  Mo.  553.  That  is  because  the  same  deed  may 
operate  as  a  feoffment,  since  the  delivery  and  registration  of  the  -deed 
are  equivalent  to  livery  of  seisin.     See  also  Poe  v.  Domec,  48  Mo.  441. 

« Jackson  V.  Dillon,  2  Overt.  261.     See  also  Fetrow  v.  Merriweather, 
63  111.  278. 
808 


CH.    XXIII.]j  REQUISITES   OF   A   DEED.  §    565 

P 

in  form  a  bargain  and  sale,  it  will  be  treated  as  a  covenant  to 
stand  seised/  And  although  a  consideration  is  generally  nec- 
essary to  the  validity  of  deeds  under  the  Statute  of  Uses,  it 
is  not  necessary  that  the  consideration  should  actually  be 
passed  to  the  grantor  if  the  receipt  of  a  proper  consideration 
is  acknowledged  by  him  in  the  deed.  But  it  must  be  ac- 
knowledged in  the  deed,  or  proved  aliunde  to  have  actually 
passed.^  The  acknowledgment  of  the  consideration  is  only 
prima  facie  evidence  of  the  character  and  amount  of  the  con- 
sideration. And  if  one  is  expressed,  another  consideration 
may  be  proved,  if  it  be  not  inconsistent  with  or  contradictory 
of  the  one  expressed.*  But  no  parol  evidence  will  be  ad- 
mitted to  prove  that  the  consideration  acknowledged  in  the 
deed  was  never  paid,  in  order  to  invalidate  the  deed  between 
the  grantor  and  grantee."  The  amount  acknowledged  is  pre- 
sumed to  be  the  true  consideration  agreed  upon;  but  this  is 
not  conclusive.     In  an  action  to  enforce  the  payment  of  the 

■     ^  See  ante,  Sees.  540,  542,  548. 

8  Jackson  v.  Alexander,  3  Johns.  434 ;  Jackson  v.  Pike,  9  Cow.  69 ; 
Jackson  v.  Leek,  19  Wend.  339;  Den  v.  Hanks,  5  Ired.  30;  Toulmin  v. 
Austin,  5  Stew.  &  P.  470;  Young  v.  Ringo,  1  B.  Mon.  30.  But  see 
Boardman  v.  Dean,  34  Pa.  St.  252.  The  acknowledgment  of  a  considera- 
tion will  be  sufficient  to  raise  a  use  only  when  it  is  under  seal.  In 
■  order,  therefore,  that  a  bargain  and  sale  may  create  a  use  and  pass  the 
legal  title  by  instrument  in  writing  not  under  seal,  in  conformity  with 
the  doctrine  laid  down  in  Sec.  549,  a  consideration  must  actually  pass 
from  the  grantee  to  the  grantor. 

8  Pierce  V.  Brew,  43  Vt.  295;  Drury  V.  Tremont,  etc.,  Co.,  13  Allen 
171;  Miller  V.  Goodwin,  8  Gray  542;  Morris  Canal  v.  Ryerson,  27  N.  J. 
L.  467;  Parker  17.  Foy,  43  Miss.  260;  Rabsuhl  v.  Lack,  3.5  Mo.  316;  Har- 
per V.  Perry,  28  Iowa  63.  Time  of  payment  of  consideration  is  not 
usually  of  such  importance  as  to  avoid  a  deed,  in  equity.  Cosby  r. 
Honaker  (W.  Va.  1905),  50  S.  E.  Rep.  610.  But  see,  where  vendor 
covenanted  to  convey  land  he  did  not  own,  Webb  v.  Honchon,  102 
N.  W.  Rep.  1127. 

10  Trafton  v.  Hawea,  102  Mass.  541 ;  Wilkinson  v.  Scott,  17  Mass.  257 ; 
Bassett  v.  Bassett,  55  Me.  127;  Rockwell  v.  Brown,  54  N.  Y.  213;  Mur- 
dock  V.  Gilchrist,  52  N.  Y.  246;  Mendenhall  v.  Parish,  8  Jones  L.  1C8; 
Lowe  V.  Weatherley,  4  Dev.  4  B.  212;  Lake  v.  Gray,  35  Iowa  462; 
Coles  V.  Soulsby,  21  Cal.  47;  Rhim  v.  Ellen,  36  Cal.  362. 

809 


§  566  REQUISITES  OF  A  DEED.  [PART  III. 

consideration  a  different  amount  may  be  established  by  parol 
evidence,  and  the  acknowledgment  of  the  receipt  of  the  con- 
sideration is  no  bar  to  its  recovery.  The  recital  of  the  con- 
sideration in  a  deed  is  only  conclusive  as  to  the  fact  that  there 
was  a  consideration  to  the  deed." 

§  566.  Voluntary  and  fraudulent  dOnveyances. —  Although  a 
consideration  may  not  be  necessary  to  make  a  valid  convey- 
ance, as  between  the  parties  and  their  privies,  the  question 
presents  a  different  phase  in  respect  to  the  creditors  of  the 
grantor.  Questions  of  this  kind  arise  under  the  statutes  13 
Eliz.  ch.  5,  and  27  Eliz.  ch.  4,  which  have  been  substantially 
re-enacted  in  all  the  States  of  this  country.  The  statutes  are 
said  to  be  affirmatory  of  the  common  law.  Whether  this  be 
so  is  a  matter  of  very  little  importance.  Under  the  statutes, 
if  a  conveyance  of  lands  is  made  without  a  substantial  valu- 
able consideration,  while  the  grantor  is  in  debt,  under  certain 
circumstances  at  least,  existing  creditors  can  avoid  the  con- 
veyance, and  satisfy  their  demands  by  proceeding  against  the 
land.  If  the  conveyance  is  to  any  one  except  a  child  or  wife, 
or  in  other  words,  where  there  is  not  even  a  good  consider- 
ation passing  between  the  parties,  the  conveyance  is  in  any 
case  void  as  against  existing  creditors.^^  But  in  a  voluntary 
conveyance  to  a  wife  or  child,  if  at  the  time  of  the  convey- 
ance sufficient  was  left  in  the  hands  of  the  grantor  to  amply 
secure  existing  creditors,  the  conveyance  will  nevertheless  be 

11  Goodspeed  v.  Fuller,  46  Me.  141;  Bassett  v.  Bassett,  5.5  Me.  127; 
Pierce  v.  Brew,  43  Vt.  295;  Miller  v.  Goodwin,  8  Gray  542;  Murdock  v. 
Gilchrist,  52  N.  Y.  246;  Grout  v.  Townsend,  2  Denio  335;  Morris  Canal 
V.  Ryerson,  27  N.  J.  L.  467;  Parker  v.  Foy,  43  Miss.  260;  Rabshul  v. 
Lack,  35  Mo.  316;  Rhim  v.  Ellen,  36  Cal.  362;  Gaze  v.  Hoyt,  58  Vt. 
536;  Mills  V.  Allen  (Mills  V.  Dow's  Admr.),  133  U.  S.  423,  10  S.  Ct. 
413.  See,  for  inadequate  consideration,  as  a  ground  for  avoidance  of 
deed,  Stevens  v.  Osburn  (Tenn.  1901),  1  Tenn.  Ch.  App.  213. 

12  Sexton  V.  Wheaton,  8  Wheat.  229;  Hinde's  Lessee  r.  Loncfworth,  11 
Wheat.  199;  Lerow  v.  Wilmarth,  9  Allen  386;  Washband  v.  Washband, 
27  Conn.  424;  Doe  v.  Hurd,  7  Blackf.  510;  Mercer  v.  Mercer,  29  Iowa 
557;  Bullitt  V.  Taylor,  34  Miss.  708. 

810 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    CC3 

good.  But  if  the  grantor  is  insolvent,  then  it  may  be  avoided 
by  existing  ereditors.^^  Subsequent  creditors  have  no  interest 
in  such  conveyances,  and  cannot  avoid  them  unless  they  have 
been  made  with  an  actual  fraudulent  intent/*  and  then  they 
may  be  avoided  by  subsequent  as  well  as  existing  creditors.^' 
And  even  where  the  consideration  is  valuable,  if  it  is  done 
with  a  fraudulent  intent,  and  the  grantee  participates  in  the 
fraud,  the  deed  can  be  avoided  by  creditors.  But  if  the 
grantee  is  an  innocent  purchaser  for  value,  he  acquires  a 
good  title  free  from  the  claims  of  the  creditors.^®  Voluntary 
conveyances  are  those  which  do  not  rest  upon  a  valuable  con- 
sideration. And  under  the  term  *  *  valuable  consideration ' '  the 
law  includes  everything  possessing  a  pecuniary  value  and  like- 
wise a  promise  to  marry,  as  well  as  actual  marriage.  Convey- 
ances possessing  any  one  of  these  considerations  are  not  volun- 
tary." Although  the  valuable  consideration  must  be  sub- 
stantial, it  need  not  be  adequate  in  order  to  make  the  con- 
is  Lerow  V.  Wilmarth,  9  Allen  386;  Pomeroy  v.  Bailey,  43  N.  H.  118; 
Van  Wyck  v.  Seward,  6  Paige  62;  Bridgford  v.  Riddel,  55  111.  261; 
Pratt  V.  Myers,  56  111.  24 ;  Stewart  17.  Rogers,  25  Iowa  395 ;  Baldwin  v. 
Tuttle,  23  Iowa  74. 

i+Thacher  v.  Phinney,  7  Allen  150;  Beal  v.  Warren,  2  Gray  447; 
Trafton  v.  Hawes,  102  Mass.  541;  Lormore  V.  Campbell,  60  Barb.  62; 
Stone  V.  Meyers,  9  Minn.  311. 

loMarston  v.  Marston,  56  Me.  476;  Parkman  t?.  Welch,  19  Pick.  231; 
Coolidge  V.  Melvin,  42  N.  H.  521;  Redfield  v.  Buck,  35  Conn.  329;  Paulk 
V.  Cooke,  39  Conn.  566;  Williams  v.  Davis,  69  Pa.  St.  21;  Pratt  V. 
Myers,  56  111.  24;  Bridgeford  v.  Riddle,  55  111.  261;  Bullitt  V.  Taylor. 
34  Miss.  740;  Herschefeldt  v.  George,  6  Mich.  466.  "As  to  subsequent 
debts,  the  creditor  who  assails  a  voluntary  conveyance  must  show  cir- 
cumstances justifying  the  presumption  that  the  intent  of  the  conveyance 
was  fraudulent,  before  the  land  conveyed  can  be  subjected  to  his  debt." 
Frazer  v.  Frisbie  Furniture  Co.  (Ky.  1905),  86  S.  W.  Rep.  539,  27  Ky. 
Law  Rep.  68^ 

"« Oriental  Bank  v.  Haskins,  3  Mete.  340;  Somes  v.  Brewer,  2  Pick. 
184;  Wadsworth  V.  Williams,  100  Mass.  131;  Clapp  v.  Tirrell,  20  Pick. 
247;  Verplanck  v.  Sterry,  12  Johns.  552;  Carpenter  v.  Murin,  42  Barb. 
300;  Wright  v.  HoweM,  35  Iowa  292. 

17  Prodgers  v.  I^ngham,  1  Sid.  133;  Smith  v.  Allen,  5  Allen  458; 
Huston  V,  Cantril,  11  Leigh  176;  Rockhill  v.  Spraggs,  9  Ind.  32. 

811 


§  567  REQUISITES  OF  A  DEED.  [PART  HI. 

veyance  good  against  creditors.^*  It  is  further  necessary,  in 
order  that  a  conveyance  may  be  avoided  by  creditors,  that  the 
thing  conveyed  must  be  subject  to  levy  and  sale  under  exe- 
cution. The  conveyance  of  a  homestead  without  consider- 
ation cannot  be  avoided  by  creditors  for  being  voluntary.** 

§  667.  Operative  words  of  conveyance. —  To  make  a  com- 
plete and  valid  conveyance,  it  is  also  necessary  that  the  deed 
should  contain  what  are  termed  operative  words  of  convey- 
ance, i,  e.,  words  which  clearly  manifest  the  intent  of  the 
grantor  to  part  with  his  interest  or  estate  in  the  land.  It  has 
been  shown  more  at  length  in  a  previous  chapter  what  are  the 
technical  operative  words  usually  employed  in  the  different 
kinds  of  common-law  and  statutory  conveyances,^"  and  noth- 
ing further  in  respect  to  them  need  be  added  here.  The  deed 
in  general  use  in  all  the  States  contains  ordinarily  the  words 
"give,  grant,  bargain,  and  sell,"  and  this  deed  may  be  con- 
strued to  be  a  primary  or  secondary  conveyance,  a  common- 
law  conveyance,  or  one  under  the  Statute  of  Uses,  according 
as  one  or  the  other  construction  would  best  effectuate  the  in- 
tention of  the  parties. ^^  Not  only  is  this  the  rule,  but  it  is 
not  even  necessary  to  use  the  technical  operative  words  in  any 

isWashband  f.  Washband,  27  Conn.  424;  Sexton  v.  Wheaton,  8 
Wheat.  229;  Hinde's  Lessee  v.  Longworth,  11  Wheat.  199;  Reade  v.  Liv- 
ingston, 3  Johns.  Ch.  500;  Bullitt  V.  Taylor,  34  Miss.  708;  Mercer  v. 
Mercer,  29  Iowa  557;  Doe  V.  Hurd,  7  Blackf.  510.  "  Inadequacy  of  con- 
sideration is  generally  held  to  be  evidence  of  fraud,  but  not  necessarily 
conclusive."  F.  &  M.  Schaefer  Brewing  Co.  v.  Moebs  (Mass.  1905), 
73  N.  E.  Rep.  858,  187  Mass.  571. 

i9Gassett  r.  Grout,  4  Mete.  490;  Danforth  v.  Beattie,  43  Vt.  138; 
Wood  V.  Chambers,  20  Texas  254;  3  Washburn  on  Real  Prop.  334. 
But  see  contra,  Sec.  126,  note.  A  conveyance  of  the  homestead  cannot 
be  assailed  in  most  of  the  States,  by  a  creditor.  Gibson  f.  Barrett 
(Ark.  1905),  87  S.  W.  Rep.  435;  Isbell  v.  Jones  (Ark.  1905),  88  S.  W. 
Rep.  593;  Glasser  v.  Crittenden  (Mich.),  103  N.  W.  Rep.  601;  Reed 
Bros.  V.  Nicholson  (Mo.),  88  S.  W.  Rep.  71;  Matador  Co.  v.  Cooper 
(Texas),  87  S.  W.  Rep.  235. 

20  See  ante,  Ch.  XXII,  Sec.  3. 

21  See  ante.  Sec.  548. 

812 


CH.    XXm.]  REQUISITES   OF   A   DEED-  §    568 

kind  of  conveyance,  although  it  is  advisable  to  do  so  to  re- 
move all  doubt  as  to  the  validity  of  the  conveyance.  Any 
words,  although  not  recognized  as  formal  or  technical  words 
of  conveyance,  will  be  sufficient,  if  they  establish  clearly  the 
intention  to  transfer  the  estate.^^  Thus,  where  the  grant  was 
to  A.  and  his  heirs,  provided  if  A.  died  in  his  minority  with- 
out issue,  then  the  property  was  to  go  to  the  issue  of  B.,  the 
word  go  was  held  sufficient,  in  connection  with  the  previous 
grant,  to  pass  the  estate  to  the  issue  of  B.^^  And  the  word 
alien  has  been  held  sufficient  to  pass  an  estate  in  reversion, 
where  the  conveyance  would  not  operate  as  a  bargain  and  sale, 
for  the  want  of  enrollment.^*  On  the  other  hand,  a  deed,  in 
which  the  only  words  of  conveyance  were  ''sign  over,"  was 
held  to  be  invalid."  So,  likewise,  the  word  "reserve"  was 
held  to  be  insufficient.^"  In  like  manner,  it  would  not  be  fatal 
to  the  validity  of  the  deed  if  the  operative  words  are  in  the 
past,  instead  of  the  present  tense,  for  example,  "has  given 
and  granted,"  instead  of  "do  give  and  grant,"  but  it  is  the 
prevailing  custom  in  most  parts  of  this  country  to  use  both 
tenses,  viz. :  have  given  and  granted  and  do  hereby  give  and 
grant,  although  the  Dast  tense  is  mere  surplusage.^^ 

§  668.  Execution,  what  constitutes. —  By  the  execution  of 
a  deed  is   here  meant  the  various  formalities  required  by  law 

22  Roe  17.  Tranraarr,  2  Wils.  75 ;  s.  c.  Smith's  Ld.  Cas. ;  Ivory  v. 
Burns,  56  Pa.  St.  300;  Spencer  t?.  Bobbins,  106  Ind.  580;  Wilson  V. 
Albert,  89  Mo.  537,  1  S.  W.  Rep.  209;  Wilcoxson  v.  Sprague,  51  CaL 
640;  1  Wood  on  Conveyancing,  203;  2  Rolle.  Abr,  789,  pi.  30.  See 
Shep.  Touch.  82,  222;  Cornish  on  Purchase  Deeds,  29;  3  Washburn 
Real  Prop.  379;  Schmitt  v.  Giovanari,  43  Cal.  617;  Rowe  v.  Beckett,  30 
Ind.  154;  and  see  Folk  v.  Varn,  9  Rich.  Eq.  303;  Patterson  v.  Cameal, 
3  Marsh.  A.  K.  619. 

23  Folk  V.  Varn,  9  Rich.  Eq.  303. 

24  Adams  v.  Steer,  Cro.  Jac.  210. 

«»McKinney  v.  Settles,  31  Mo,  541;  Webb  P.  Mullins,  78  Ala.  111. 
2«Hall  17.  Hall    (Miss.),  5  So.  Rep.  523;  Davis  v.  McGrew,  82  CaL 
135  ("Waive  and  renounce"), 
"  3  Washburn  on  Real  Prop.  378 ;  Pierson  v.  Armstrong,  1   Iowa  292. 

813 


§    569  REQUISITES   OF   A   DEED.  [PABT   Ul. 

for  the  completion  of  it,  which  include  signing,  sealing,  at- 
testation and  acknowledgment.  And,  according  to  a  late 
authority,  delivery  also.^*  A  deed  may  be  executed  either  by 
the  grantor  himself,  or  by  an  agent  duly  authorized  to  act  for 
him. 

§  569.  Power  of  attorney. —  It  requires,  however,  to  enable 
an  agent  to  execute  a  deed  for  his  principal,  a  power  of  at- 
torney under  seal,  the  rule  of  agency  being  that  the  power 
must  be  of  the  same  grade  of  instrument  as  that  which  the 
agent  is  to  execute.  ^^  This  statement  must  be  qualified  by  the 
remark  that,  if  it  is  executed  by  the  agent  in  the  presence 
of  the  principal,  it  is  constructively  the  manual  act  of  the 
principal,  and  needs  no  power  of  attorney  under  seal.^*'  This 
is  not  only  the  rule  in  regard  to  ordinary  agencies,  but  it  ap- 
plies also  to  the  general  agency  of  partners  in  a  partnership. 
Without  an  express  authority  granted  by  a  power  of  attorney 
under  seal,  the  conveyance  by  one  partner  of  partnership 
lands,  although  in  the  name  of  the  partnership,  will  pass  only 
his  interest  or  share  in  the  property.  And  a  subsequent  rati- 
fication, to  be  effective,  must  also  be  by  an  instrument  under 

28Colee  V.  Colee,  122  Ind.  109,  23  N.  E.  Rep.  687.  See,  Parken  V. 
Saiford  (Fla.  1904),  37  So.  Rep.  567;  Peters  v.  Berkemeier  (Mo.  1904), 
[^3  S.  W.  Rep.  747. 

29  Livingston  v.  Peru  Iron  Co.,  9  Wend.  522 ;  Hanford  v.  McNair,  9 
Wend.  54;  Doe  V.  Blacker,  27  Ga.  418;  Rhode  V.  Louthain,  8  Blackf. 
413;  Territory  v.  Klee  (Wash.),  23  Pac.  Rep.  417.  See  Skinner  V. 
Dayton,  19  Johns.  513,  5  Am.  Dec.  286;  Cady  v.  Shepherd,  11  Pick.  400, 
22  Am.  Dec.  379;  Hanford  v.  McNair,  9  Wend.  54,  19  Am.  Dec.  529; 
Blood  V.  Goodrich,  9  Wend.  68,  24  Am.  Dec.  121 ;  McNaughten  V.  Part- 
ridge, 11  Ohio  223,  38  Am.  Dec.  731;  Gordon  v.  Bulkley,  14  Serg.  &  R. 
331;  Hunter  V.  Parker,  7  Mees.  &  W.  322.  See,  for  acts  in  excess  of 
power,  in  sale  of  land,  Rogers  V,  Tompkins  (Texas  1905),  87  S.  W. 
Rep.  379. 

80  Ball  V.  Duntersville,  4  T.  R.  313;  King  17.  Longnor,  4  B.  &  Ad.  647; 
McKay  v.  Bloodgood,  9  Johns.  285 ;  Mutual,  etc.,  Ins.  Co.,  v.  Brown,  30 
N.  J.  Eq.  193;  King  v.  Longnor,  4  Barn.  &  Adol.  647;  Lovejoy  V.  Rich- 
ardson, 68  Me.  386;  Lord  Lovelace's  Case,  Jones,  W.  268. 

814 


en.    XXIII.]  REQUISITES   OP   A   DEED.  §    569 

seal.^^  In  respect  to  the  manner  in  which  the  deed  must  be 
executed,  when  done  by  an  agent,  the  law  is  extremely  tech- 
nical. In  the  execution,  the  act  must  appear  to  be  that  of 
the  principal,  and  the  deed  must  show  through  whom  the 
principal  acts.  It  must  be  the  principal's  deed;  he  must 
grant  and  convey  the  land.  If  the  premises  of  the  deed  are 
in  the  name  of  the  agent,  although  he  signs  the  deed  as  agent, 
and  the  deed  contains  a  recital  of  his  authority,  it  will  not  be 
the  deed  of  the  principal,  and  hence  inoperative.^^  However, 
such  a  deed  would  be  evidence  of  a  sale  having  been  made,  and 
would  vest  in  the  grantee  an  implied  equitable  title,  which 
could  be  converted  into  a  legal  title  by  an  action  for  specific 
performance  or  for  reformation  of  the  deed.^'  The  proper 
mode  of  signing  is  A.  (principal)  by  B.  (agent)  ;  and  there 
are  some  authorities  which  hold  that  no  other  signature  will 
be  a  good  execution.  But  the  rule  has  of  late  been  some- 
what relaxed,  so  that  where  the  deed  purports  in  terms  to  be 
the  act  of  the  principal,  and  the  signature  is  B.  (agent)  for  A. 
(principal),  or  B.  as  the  attorney  of  A.,  and  the  like,  it  will 
be  a  valid  execution.**  But  the  deed  must  be  in  the  name 
of  the  principal  and  it  must  be  sealed  with  his  seal.^^  If 
signed  by  the  agent  without  affixing  the  principal's  name,  it 
will  be  a  defective  execution;  and  so  also,  if  the  principal's 

81  Parsons  on  Part.  369 ;  3  Washburn  on  Real  Prop.  262.  In  Iowa  a 
parol  ratification  is  held  to  be  sufficient  to  effectuate  the  conveyance 
by  one  partner.  Hajmes  v.  Seacrest,  13  Iowa  455.  But  a  ratification 
must  be  made  with  full  notice  of  all  the  facts.  Quale  v.  Hazel  (S.  D. 
1905),  104  N.  W.  Rep.  215. 

32  3  Washburn  on  Real  Prop.  277;  Copeland  v.  Mercantile  Ins.  Co.,  6 
Pick.  198;  Squier  v.  Morris,  1  Lans.  282;  Townsend  v.  Smith,  4  Hill 
351;  Martin  V.  Flowers,  8  Leigh  158;  Briggs  t;.  Partridge,  7  J.  &  Sp. 
339. 

83  Joseph  V.  Fisher,  122  Ind.  399. 

8*  Wilkes  V.  Back,  2  East  142;  Mussey  V.  Scott,  7  Cush.  216;  Jones 
V.  Carter,  4  Hen.  &  M.  196;  Hunter  V.  Miller,  6  B.  Mon.  612;  Martin  V. 
Almond,  25  Mo.  313;  Wilkinson  V.  Getty,  13  Iowa  157. 

88  Elwell  V.  Shaw,  16  Mass.  42;  Townshend  v.  Corning,  23  Wend.  439; 
Echols  V.  Cheney,  28  Cal.  160;  Morrison  v.  Bowman,  29  Cal.  352. 

815 


§    570  REQUISITES   OP   A   DEED.  [PART   III. 

name  is  signed  without  mentioning  that  it  was  done  by  at- 
torney.'" But  it  has  been  held  that  a  recital  in  the  deed,  that 
it  was  executed  by  the  grantor  by  attorney,  does  away  with 
the  necessity  of  the  signature  of  the  agent.''^  To  be  good  the 
principal  must  also  be  alive.  A  common-law  power  of  at- 
torney dies  with  the  principal,  and  the  deed  by  the  attorney 
after  the  death  of  the  principal  is  absolutely  void.^®  But  the 
reader  must  here  bear  in  mind  the  important  distinction  al- 
ready explained  between  powers  of  attorney,  a  common-law 
authority,  and  powers  of  appointment,  operating  under  the 
Statute  of  Uses  and  the  Statute  of  Wills.  The  latter  vest 
upon  their  creation  an  irrevocable  equitable  interest  in  the 
donee,  which  survives  the  principal,  and  is  executed  in  the 
name  of  the  donee.  Authors  very  often  speak  of  powers 
coupled  with  an  interest,  as  distinguishable  from  common-law 
powers  of  attorney,  in  respect  to  the  irrevocability  of  the 
former.  Except  as  a  power  of  appointment  under  the  Stat- 
ute of  Uses  and  the  Statute  of  Wills,  there  is  no  such  power 
in  the  common-law  of  real  property  as  one  coupled  with  an 
interest.'® 

§  570.  Power  of  attorney  granted  by  married  woman. —  It  is 

the  settled  law  in  a  number  of  the  States  that  a  married 
woman  cannot  make  a  valid  power  of  attorney,  authorizing 
the  conveyance  of  her  lands,  even  though  the  power  is  exe- 
cuted jointly  with  her  husband,  and  acknowledged  by  her  in 
the  manner  pointed  out  by  the  statute  for  the  acknowledg- 

soElwell  V.  Shaw,  16  Mass.  42;  Wood  v.  Goodridge,  6  Cush.  117; 
Thurman  V.  Cameron,  24  Wend.  90. 

37  Devinney  v.  Reynolds,  1  Watts  &  S.  328. 

38  Harper  v.  Little,  2  Me.  14 ;  Bergen  v.  Bennett,  1  Caines'  Cas.  15 ; 
Hunt  V.  Rousmaniere,  2  Mason  248;  Wilson  V.  Troup,  2  Cow.  236; 
Mansfield  v.  Mansfield,  6  Conn.  562 ;  Ferris  v.  Irving,  28  Cal.  648 ;  Frink 
V.  Roe,  70  Cal.  296.  Death  does  not  revoke  a  power  coupled  with  an 
interest  in  the  land.  Fisher  V.  Southern  L.  &  T.  Co.  (N.  C.  1905),  50 
8.  E.  Rep.  592. 

39  See  ante,  Sec.  402.  See,  also,  Norton  v.  Whitehead,  84  Cal.  263; 
Fisher  v.  Southern  L.  &  T.  Co.,  50  S.  E.  Rep.  592. 

816 


CH.    XXIII.JI  REQUISITES   OF   A   DEED.  §    571 

ment  of  her  deeds.*"  And  a  deed  by  the  husband's  attorney, 
conveying  lands  of  the  wife,  which  is  executed  and  ac- 
knowledged by  the  wife,  has  also  been  held  invalid.*^  But 
it  is  difficult  to  discover  any  reason  for  not  permitting  her  to 
do  by  an  agent  what  she  is  authorized  to  do  herself,  provided 
the  formalities  required  by  statute  for  the  execution  of  deeds 
by  married  women  have  been  complied  with  in  the  execution 
of  the  power  of  attorney.  And  such  a  power  has  been  ex- 
pressly recognized  by  statute  in  some  of  the  States,  while  in 
others  it  seems  to  be  taken  for  granted  that  she  may  execute 
a  valid  power  of  attorney.*^  *  It  is,  however,  apparently  well 
settled  that  a  power  of  attorney  executed  by  a  feme  sole  will 
be  revoked  by  her  subsequent  marriage.** 

§  571.  Signing. —  At  common  law  it  was  not  necessary  for 
the  parties  to  sign  the  deed,  although  under  the  Saxon  laws 
the  deeds  were  subscribed  with  the  sign  of  the  cross,  and  were 
not  required  to  be  sealed.  After  the  Norman  conquest  sealing 
was  invariably  required,  but  signing  became  unnecessary." 

*o  Allen  V.  Hooper,  50  Me.  373;  Holladay  v.  Daily,  19  Wall.  609; 
Sumner  v.  Conant,  10  Vt.  9;  Earle  v.  Earle,  1  Spen.  347;  Kearney  f. 
Macomb,  16  N.  J.  Eq,  189;  Lewis  V.  Coxe,  5  Harr.  401,  See  Dawson  f. 
Shirley,  6  Blackf.  531. 

<i  Toulmin  v.  Heidelberg,  32  Miss.  268.  There  is  no  presumption  of 
agency  by  the  husband,  from  the  fact  of  matrimony.  McNemor  v. 
Ck)hn,  115  111.  App.  31. 

42  Roarty  v.  Mitchell,  7  Gray  243 ;  Gridley  v.  Wynant,  23  How.  503 ; 
Jones  V.  Robbins,  74  Texas  615.  In  Hardenburg  v.  Larkin,  47  N.  Y. 
113,  it  was  held  that  the  common  law  did  not  permit  a  married  woman 
to  execute  a  deed  by  attorney;  but  she  is  now  authorized  by  statute  to 
do  so.  In  Dawson  v.  Shirley,  6  Blackf.  531,  it  was  held  that  a  married 
woman  could  not  acknowledge  her  deed  by  attorney.  "  A  married 
woman,  her  husband  joining  therein,  may  make  a  valid  power  of  attor- 
ney to  convey  her  lands."  Linton  v.  Moorhead  (Pa.  1904),  59  Atl.  Rep. 
204,  209  Pa.  646. 

43  3  Washburn  on  Real  Prop.  259 ;  2  Kent's  Com.  645 ;  Judson  v. 
Sierra,  22  Texas  365. 

4*3  Washburn  on  Real  Prop.  270;  Co.  Lit.  171b;  Van  Santwood  v. 
Sandford,  12  Johns.  198;  Hammond  v.  Alexander,  1  Bibb  333;  Taylor 
V.  Morton,  5  Dana  345;  2  Bla.  Com.  309;  Williams  on  Real  Prop.  152. 

62  817 


§  571  REQUISITES  OF  A  DEED.  [PART  III. 

It  seems  that  in  some  of  the  States  to  a  very  late  day  a  deed 
is  recognized  as  a  valid  conveyance  without  being  signed  by 
the  parties,  but  in  most  of  them,  if  not  all,  signing  is  abso- 
lutely required,  and  in  all  it  is  customary  and  advisable.*^ 
Sometimes  the  statute  requires  the  deed  to  be  subscribed.  In 
that  case  the  parties  must  write  their  names  at  the  bottom 
of  the  instrument.  But,  generally,  in  the  absence  of  such  a 
statute,  the  signature  in  any  part  of  the  deed  would  suffice ; 
and,  although  it  is  usual  for  the  grantor  to  write  the  signature 
himself,  it  is  not  always  necessary.  To  enable  an  ignorant 
person  to  execute  a  deed  one  may,  at  his  request,  and  in  his 
presence,  sign  his  name,  and,  by  affixing  a  mark  to  the  signa- 
ture, the  grantor  adopts  the  signature  as  his  own,  and  the 
deed  will  be  valid.**  It  is  not  even  necessary  that  the  grantor 
should  affix  his  mark  in  order  to  adopt  the  signature  as  his 
own.  If  done  in  his  presence,  the  signature  by  the  author- 
ized agent  is  theoretically  the  act  of  the  principal,  and  the 
deed  is  valid,  though  it  is  not  shown  that  the  grantor  has  been 
disabled  by  any  cause  from  signing  himself.*^  And  in  one 
ease  it  was  held  that  where  a  wife  signed  her  husband's  name 
to  a  deed  in  his  absence,  and  he  afterwards  acknowledged  it  as 
his  act  and  deed,  and  delivered  it  to  the  grantee,  the  subse- 
quent acknowledgment  and  delivery  constituted  a  ratification, 
or  rather  an  adoption,  of  the  signature  as  his  own,  and  that 
the  deed  was  properly  executed.**  This  case  was  different 
from  the  case  where  the  entire  execution  of  the  deed  was  in- 

45Sicard  v.  Davis,  6  Pet.  124;  Clark  v.  Graham,  Wheat.  519;  Hutch- 
ins  V.  Byrnes,  9  Gray  367;  Isham  v.  Benington,  19  Vt.  232;  Elliott  r. 
Sleeper,  2  N.  H.  529;  McDill  v.  McDill,  1  Dall.  64;  Plummer  v.  Russell, 
2  Bibb  174;  Chiles  v.  Conley,  2  Dana  21.  In  Alabama,  a  deed  is  valid, 
when  acknowledged,  although  not  signed.  Lloyd  v.  Cotes  (1905),  38 
So.  Rep.  1022. 

4«  Baker  v.  Dening,  8  Ad.  &  El.  94;  Truman  V.  Lore,  14  Ohio  St.  154. 

47  Ball  V.  Duntersville,  4  T,  R.  313;  Frost  V.  Deering,  21  Me.  156; 
Gardner  v.  Gardner,  5  Cush.  483;  Wood  v.  Goodridge,  6  Cush.  117; 
Burns  v.  Lynde,  6  Allen  309;  McKay  v.  Bloodgood,  9  Johns.  285;  Kime 
V.  Brooks,  9  Ired.  219;  Videau  v.  Griffin,  21  Cal.  392. 

48  Bartlett  v.  Drake,  100  Mass.  175. 

818 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    572 

trusted  to  another.  Then,  as  has  been  explained  in  a  pre' 
ceding  paragraph,  a  power  of  attorney  under  seal  would  have 
been  required. 

§  572.  Sealing. —  At  common  law  sealing  was  an  important 
part  of  the  execution,  although,  as  has  been  stated,  signing 
was  dispensed  with.**  This  circumstance  arose,  no  doubt, 
from  the  fact  that  very  few  people  in^the  early  days  of  the 
common  law  could  write  and  sign  their  names,  and  it  became 
customary  to  identify  their  solemn  deed  by  attaching  their 
seals,  which  were  peculiar  and  easily  recognized.  Although 
it  has  now  become  a  mere  formality,  it  is  still  held  to  be  in- 
dispensable in  most  of  the  States,  possibly  in  all  except  Cali- 
fornia, Colorado,  Kentucky,  Iowa,  Alabama,  Kansas,  Louisiana, 
Missouri,  and  Texas,  where  by  statute  seals  have  been  abolished 
as  a  requisite  of  a  deed.""  The  word  "deed"  means  an  in- 
strument under  seal,  and,  except  in  those  States  where  seals 
are  by  statute  dispensed  with,  no  instrument  can  be  called  a 
deed  without  being  sealed,  whatever  may  be  the  intention  of 
the  parties.^^  But  there  need  be  no  reference  in  the  attesta- 
tion clause  of  the  deed  to  the  sealing,  if  the  seal  is  actually 
affixed,  although  it  is  usual  to  state  that  the  party  has  set  his 
hand  and  seal  thereto. °^  It  is  not  necessary  for  the  party  to 
affix  the  seal  himself.     It  may  be  done  by  any  one  else,  pro- 

<9  2  Bla  Com.  309;  3  Washburn  on  Real  Prop.  270,  271.  Sealing  is 
held  to  be  essential,  in  Florida.  Parken  v.  Safford  (1904),  37  So.  Rep. 
567. 

so  3  Washburn  on  Real  Prop.  271.  See  Shelton  f.  Armour,  13  Ala. 
647;  Smith  V.  Dall,  13  Cal.  510;  Jones  V.  Crawford,  1  McMull373;  Good- 
lett  r.  Hensell,  56  Ala.  346;  Simpson  v.  Mundee,  3  Kan.  172;  Courand  v. 
Vollmer,  31  Texas  397.    See  also,  Bower  v.  Chambers,  53  Miss.  259. 

51  Warren  f.  Lynch,  5  Johns.  239 ;  Jackson  17.  Wood,  12  Johns.  13 ; 
Jackson  v.  Wendel,  12  Johns.  355;  Alexander  v.  Polk,  39  Miss.  737; 
Deming  r.  Bullitt,  1  Blackf.  241;  McCabe  v.  Hunter,  7  Mo.  355;  Davis 
V,  Judd,  6  Wis.  85;  Parken  v.  Safford  (Fla.  1904),  37  So.  Rep.  567. 

82  State  V.  Peck,  53  Me.  299 ;  Bradford  v.  Randall,  5  Pick.  496 ;  Mill 
Dam  Foundry  v.  Hovey,  21  Pick,  417;  Taylor  v.  Glaser,  2  Serg.  &  R. 
502. 

819 


§    372  REQUISITES   OF   A    DEED.  [PART   III. 

vided  he  is  authorized  to  do  so,  or  the  unauthorized  act  is 
subsequently  ratified  and  adopted  by  the  acknowledgment  and 
delivery  of  the  deed."*  And  one  seal  may  be  adopted  as  the 
seal  of  all  the  parties  to  the  deed.''*  In  respect  to  what  will 
constitute  a  sufficient  sealing  the  law  is  not  uniform.  At  com- 
mon law  an  impression  lipon  wax  or  some  tenacious  substance 
was  required.  Lord  Coke  says:  *'It  is  required  that  the 
deed,  charter,  or  writing,  must  be  sealed,  that  is,  have  some 
impression  upon  wax ;  for  sigillum  est  cera  impressa,  quia  cera 
sine  impressione  non  est  sigillum."  ^''  In  the  New  England 
States,  and  New  Jersey,  unless  changed  by  recent  legislation, 
the  common-law  seal  is  required,  although  probably  in  no 
place  would  it  be  necessary  to  use  wax  or  substance  of  that 
character,  an  impression  of  a  seal  upon  paper  being  sufficient. 
At  least  such  is  the  opinion  of  the  United  States  Supreme 
Court.'"'  But  in  the  majority  of  the  States  a  simple  scroll 
with  "L.  S. "  or  the  word  ''seal"  written  in  it,  is  a  sufficient 

osKoehler  v.  Black  River,  etc.,  Co.,  2  Black  715;  Elwell  v.  Shaw,  16 
Mass.  42 ;  Co.  Lit.  6  a ;  3  Washburn  on  Real  Prop.  272. 

54  Bradford  v.  Randall,  5  Pick.  496;  Tasker  v.  Bartlett,  5  Cush.  309; 
Atlantic  Dock  Co.  v.  Leavett,  54  N.  Y.  35;  Lunsford  v.  La  Motte  Lead 
Co.,  54  Mo.  426;  Burnett  V.  McCluey,  78  Mo.  676;  Carter  v.  Chaudron, 
21  Ala.  72;  Mackay  v.  Bloodgood,  9  Johns.  285;  Flood  v.  Yanders,  1 
Blackf.  102;  Bank  of  Cumberland  V.  Bugbee,  19  Me.  27;  Lambden  v. 
Sharp,  9  Humph.  224.  "Under  Rev.  St.  Wis.  1898,  Sec.  1176,  providing 
for  the  execution  of  tax  deeds  under  the  seal  of  the  county,  the  fact 
that  the  seal  used  bore  the  words,  '  the  seal  of  the  county  clerk,'  did  not 
render  the  deed  invalid."  Laughlin  v.  Kieper  (Wis.  1905),  103  N.  W. 
Rep.  264. 

55  3  Inst.  169.  See  Warren  v.  Lynch,  5  Johns.  239;  Mill  Dam  Foun- 
dry I*.  Hovey,  21  Pick.  417;  Warren  V.  Lynch,  5  Johns.  239;  3  Caines, 
362;  Beardsley  V.  Knight,  4  Vt.  471;  Tusker  V.  Bartlett,  5  Cush.  359, 
364;  Bradford  v.  Randall,  5  Pick.  496;  4  Kent's  Com.  452. 

56  Pillow  V.  Roberts,  13  How.  473 ;  Bates  v.  B.  &  N.  Y.  Cent.  R.  R., 
10  Allen  254;  Pillow  v.  Roberts,  13  How.  473;  s.  c.  7  Eng.  (12  Ark.) 
822;  Bradford  r.  Randall,  5  Pick.  495;  Bates  V.  Boston,  etc.,  R.  R.  Co., 
10  Allen  251.  "Under  Laws  N.  Y.  1896,  p.  593,  c.  547,  which  provides 
that  a  grant  of  real  estate  in  fee  shall  be  *  subscribed  '  by  the  grantor, 
such  a  deed  is  not  required  to  be  sealed."  Fitzpatrick  f.  Graham  (U. 
S.  C.  C.  A.,  N.  Y.,  1903),  122  Fed.  Rep.  401. 

820 


CH.    XXin.]  REQUISITES   OF   A   DEED.  §    573 

sealing."^  But  it  has  been  held  that  to  make  a  scroll  a  good 
sealing  there  must  be  a  recital  in  the  deed  that  the  party  has 
affixed  his  seal.^^  On  the  other  hand,  the  recital,  without  the 
scroll  or  some  other  actual  substitute  for  the  common-law  seal, 
would  not  be  a  sufficient  sealing."® 

§  573.  Attestation. —  A  further  requisite  is  that  the  execu- 
tion be  done  in  the  presence  of  one  or  more  witnesses.  At 
common  law  this  was  not  necessary,®"  and  is  still  unnecessary 

57  The  scroll  is  a  good  seal  in  Arkansas,  Colorado,  Connecticut,  Del- 
aware, Florida,  Michigan,  Wisconsin,  Minnesota,  Oregon,  Missouri, 
Ohio,  Texas,  Illinois,  Mississippi,  Georgia,  Indiana,  Maryland,  North 
Carolina,  Pennsylvania,  and  South  Carolina.  3  Washburn  on  Real 
Prop.  274,  275;  United  States  v.  Stephenson,  1  McLean  462;  Relf  V. 
Gist,  4  McCord  267;  Cummins  V.  Woodruff,  5  Ark.  116;  Comerford  V. 
Cobb,  2  Fla.  418;  Hastings  v.  Vaughan,  5  Cal.  315;  Bradfield  v.  Mc- 
Cormick,  3  Blackf.  161;  Scruggs  v.  Brackin,  4  Yerg.  528;  Parks  V. 
Hewlett,  9  Leigh  511;  Carter  v.  Penn,  4  Ala.  140;  Trasher  v.  Everhart, 
3  Gill  &  J.  234;  Commercial  Bank  v.  Ulmann,  18  Miss.  ( 10  Smed.  &  M.) 
471  Underwood  v.  Dollins,  47  Mo.  259;  Pratt  v.  Clemens,  4  W.  Va.  443; 
Taylor  v.  Morton,  5  Dana  365;  Shortridge  V.  Catlett,  1  Marsh.  A.  K. 
587.  In  Turner  V.  Field,  44  Mo.  382,  the  Supreme  Court  of  Missouri 
held  that  a  piece  of  colored  paper,  attached  to  the  deed  by  mucilage, 
would  be  sufficient.  By  special  act,  in  Missouri,  the  necessity  for  a  seal 
in  all  instruments  executed  by  individuals  is  abolished.  Sess.  Laws, 
Mo.  1891. 

58  Cromwell  V.  Tate,  7  Leigh  301.  But  see  Ashwell  v.  Avers,  4  Gratt. 
283;  Bell  V.  Keefe,  13  La.  An.  524;  Moore  v.  Lesseur,  18  Ala.  606;  Dem- 
ing  V.  Bullitt,  1  Blackf.  241.  See  Jenkins  V.  Hart.  2  Rand.  446;  contra, 
Lewis  V.  Overby,  28  Gratt.  627;  Hudson  v.  Poindexter,  42  Miss.  304. 
But  see  Whitley  v.  Davis,  1  Swan.  333.  See  Wittington  v.  Clarke,  16 
Miss.  (8  Smedes  &  M.)  480;  Hudson  v.  Poindexter,  42  Miss.  304; 
Shackleford,  C.  J.,  McGuire  v.  McRann,  9  Smedes  &  M.  34;  Whitting- 
ton  et  al.  V.  Clarke,  8  Smedes  &  M.  480;  Commercial  Bank  of  Manches- 
ter V.  inimann,  10  Smedes  &  M.  411.  But  a  mere  scroll  is  held  suffi- 
cient, in  Wisconsin,  although  the  deed  specifies  a  seal.  Laughlin  v. 
Kieper,  103  N.  W.  Rep.  264. 

59  Alexander  V.  Polk,  39  Miss.  737;  Taylor  v.  Glaser,  2  Serg.  &  R. 
502,  per  Telghman,  C.  J.  See  also  Warren  v.  Lynch,  5  Johns.  239;  Dem- 
ing  V.  Bullitt,  1  Blackf.  241;  Davis  v.  Brandon,  1  How.  (Miss.)  154. 
And  see  also  McCarley  v.  Tappah  County  Supervisors,  58  Miss.  483,  749. 

0  2  Bla.  Com.  307;  Dale  v.  Thurlow,  12  Mete.  157;  Thatcher  v.  Phin- 

821 


§  573  REQUISITES  OP  A  DEED.  [PART  III. 

in  some  of  the  States.®*  But  generally,  in  the  United  States, 
witnesses  are  required,  the  number  varying  with  the  statutory 
regulation  of  each  State.  In  some  only  one  witness  is  re- 
quired, but  the  usual  number  is  two."^  And  if  the  number  of 
witnesses  required  by  law  is  not  obtained,  the  deed  is  gen- 
erally  held  to  be  invalid  as  a  legal  conveyance,  although  in 
New  Hampshire,  Georgia  and  Kentucky,  the  deed  without 
proper  attestation  is  good  between  the  parties,'^  and  in  Ver- 
mont and  Minnesota,  where  two  witnesses  are  required,  sub- 
scription by  one  witness  will  enable  the  deed  to  be  used  in 
equity  to  support  an  action  for  specific  performance.®*  The 
witnesses  are  required  in  making  a  proper  attestation  to  sign 
their  names  to  the  instrument,  and  to  witness  the  execution 
of  it  by  the  grantor.®'^  But  it  is  not  necessary  that  it  should 
be  executed  by  the  parties  in  his  presence.  It  is  sufficient  if 
the  witnesses  are  requested  by  the  parties  to  subscribe  to  the 
attestation  clause,  and  the  signatures  on  the  deed  are  ac- 
knowledged by  the  parties  to  be  theirs.®®  Witnesses  to  deeds 
are  intended  merely  to  attest  the  execution  of  the  deed,  and 

ney,  7  Allen  149;  Craig  v.  Pinson,  Cheves  273;  Meuley  v.  Zeigler,  23 
Texas  88. 

«iDale  V.  Thurlow,  12  Mete.  157;  Long  v.  Ramsey,  1  Serg.  &  R.  73; 
Wiswall  V.  Ross,  4  Port.  321;  Ingram  v.  Hall,  1  Hayw.  205. 

«2  Clark  V.  Graham,  6  Wheat.  577;  Kingsley  v.  Holbrook,  45  N.  H. 
320;  Wilkins  v.  Wells,  8  Smed.  &  M.  325;  Shirley  r.  Fearne,  33  Miss. 
653;  Ross  V.  Worthington,  11  Minn.  443.  "To  render  a  deed  affective 
in  conveying  an  estate,  the  signing  and  sealing  in  the  presence  of  two 
subscribing  witnesses  and  its  delivery  are  essential."  Parken  V.  Saf- 
ford  (Fla.  1904),  37  So.  Rep.  567. 

83  Stone  V.  Ashley,  13  N.  H.  38;  Hastings  v.  Cutler,  24  N.  H.  481; 
Kingsley  v.  Holbrook,  45  N.  H.  320;  Fitzhugh  v.  Croghan,  2  J.  J. 
Marsh.  429.  See  contra,  Crane  V.  Reeder,  21  Mich.  24;  Marable  f. 
Mayer,  78  Ga.  60;  Loyd  v.  Ostes  (Ala.  1905),  38  So.  Rep.  1022. 

8*  Day  V.  Adams,  42  Vt.  520;  Ross  v.  Worthington,  11  Minn.  438. 

«6  Janes  V.  Penny,  76  Ga.  796. 

6«  Parke  v.  Mears,  2  B.  &  P.  217;  Jackson  v.  Phillips,  9  Cow.  113; 
Jones  V.  Robbins,  74  Texas  615;  Poole  v.  Jackson,  66  Texas  380. 
"  Where  a  husband  and  wife  acknowledge  their  signatures  to  a  convey- 
ance, it  is  valid,  though  neither  actually  signed  their  names."  Loyd  v. 
Gates  (Ala.  1905),  38  So.  Rep.  1022. 
822 


CII.    XXIH.]  REQUISITES   OF   A    DEED.  §    574 

cannot,  like  witnesses  to  wills,  express  opinions  upon  the  men- 
tal capacity  of  the  parties  to  the  deed.®^  Mr.  Washburn  cites 
Mr.  Barrington  to  the  effect  that  anciently  the  witnesses  were 
a  necessary  part  of  the  jury  which  was  to  try  the  validity  of 
the  instrument,  and  a  statute  then  dispensed  with  the  neces- 
sity of  their  presence,  when  after  being  duly  summoned,  they 
fail  to  appear.^* 

§  574.  Acknowledgment  or  probate. —  As  a  general  rule,  it 
is  not  required,  to  make  the  deed  valid,  that  a  certificate  of 
acknowledgment  or  probate  be  attached  to  it.®*  But  in  Ohio 
the  certificate  is  necessary  to  pass  the  title,  and  in  New  York 
and  Texas  an  unacknowledged  deed  is  not  good  against  sub- 
sequent purchasers  and  incumbrancers.'^"  And  perhaps  in  all 
the  States  the  acknowledgment  by  a  married  woman  is  ab- 
solutely required,  and  must  conform  strictly  to  the  require- 
ments of  the  statute,  in  order  to  bind  her.''^  But  in  all  the 
States,  except  Colorado  and  Illinois,  in  order  that  a  deed  may 
be  recorded,  and  the  record  furnish  constructive  notice  to  sub- 
sequent purchasers,  it  must  be  acknowledged  and  proved  be- 
fore some  officer  authorized  to  take  sucl^  acknowledgments, 

67  Dean  V.  Fuller,  40  Pa.  St.  474. 

«8  3  Washburn  on  Real  Prop.  277,  citing  Barring.  St.   (4  ed.)   175. 

69Gibbs  V.  Swift,  12  Cush.  393;  Blain  V.  Stewart,  2  Iowa  383;  Lake 
V.  Gray,  30  Iowa  415;  s.  c.  35  Iowa  459;  Doe  v.  Naylor,  2  Blackf.  32, 
But  see  Gaakins  v.  Allen  (Md.  1905),  49  S.  E.  Rep.  919. 

70  Smith  V.  Hunt,  13  Ohio  260;  Genter  v.  Morrison,  31  Barb.  155; 
Raggen  v.  Avery,  63  Barb.  65 ;  Morse  v.  Salisbury,  48  N.  Y.  636 ;  Meuley 
V.  Zeigler,  23  Texas  93.  See  Kimmarle  v.  Houston,  etc.,  R.  R.  Co.,  76 
Texas  686,  12  S.  W.  Rep.  698;  Trustees  Catholic  Church  v.  Manning 
(Md.),  19  Atl.  Rep.  599.  As  to  necessity  for  acknowledgment  of  cor- 
porate land  in  South  Dakota,  see,  State  v.  Coughran,  103  N.  W.  Rep.  31. 
And  for  necessity  of  acknowledgment  of  deed  of  individual,  in  Tenn- 
essee, see,  Robertson  v.  Newman  (Tenn.  1902),  2  Tenn.  Ch.  App.  181. 

Ti  See  Bruce  v.  Periy,  11  Rich.  121;  McBride  v.  Wilkinson,  29  Ala. 
662;  Corey  V.  Moore  (Va.),  11  S.  E.  Rep.  114;  Lineberger  v.  Tidwell, 
104  N.  C.  506,  10  S.  E.  Rep,  758;  Coffey  v.  Hendricks,  66  Texas  676,  2 
8.  W.  Rep.  47 ;  Witt  v.  Harlan,  66  Texas  660,  2  S.  W.  Rep.  41.  See, 
also,  Johnson  v.  Callaway  (Texas  1906),  87  S.  W.  Rep.  178. 

823 


§  574  REQUISITES  OP  A  DEED.  [PART  III. 

and  the  certificate  of  acknowledgment  must  be  indorsed  on  the 
deed.'^  And  where  the  recording  law,  in  express  terms,  re- 
quires the  "execution"  of  a  deed  to  be  acknowledged  or 
proved,  the  acknowledgment  or  probate  must  include  proof 
of  delivery  as  well  as  of  signing  and  sealing  J*  It  must  also 
be  signed  by  the  party  ^vho  is  proving  the  execution  of  the 
deed.  An  unsigned  acknowledgment  is  ineffectual.''*  But 
the  deed  need  not  be  signed  by  grantor  in  presence  of  the  offi- 
cer.''* An  alteration  in  the  deed  enlarging  its  scope,  when 
made  after  the  execution  of  an  acknowledgment,  necessitates 
the  taking  of  a  new  acknowledgment.  It  is  different  where 
the  alteration  restricts  the  prior  scope  of  the  deed.''* 

In  some  of  the  States  the  acknowledgment  is  required  to  be 
made  by  the  grantor,  while  in  others  the  deed  is  probated  by 
the  oath  of  one  of  the  witnesses.  But  only  one  form  of  pro- 
bate is  required  in  any  particular  deed,  in  those  States  in 
which  both  are  permitted.''''  If  the  grantor  and  attesting  wit- 
nesses die  before  acknowledgment  and  probate  of  the  deed,  it 
may  be  probated  by  proof  of  genuineness  of  the  signature  of 
one  of  the  attesting  witnesses  or  of  the  grantor.^^  And  if  the 
attesting  witness  is  alive  but  cannot  testify  to  the  due  execu- 
tion of  the  deed,  it  may  be  probated  by  any  one  who  saw  its 
execution.'" 

The  taking  of  the  acknowledgment  is  a  ministerial  and  not 

72  3  Washburn  on  Real  Prop.  314;  Simpson  v.  Mundee,  3  Kan.  181; 
Carpenter  v.  Dexter,  8  Wall.  582;  Woolfolk  V.  Graniteville  Mfg.  Co.,  22 
S.  C.  332;  New  England,  etc..  Co.,  v.  Ober,  84  Ga.  294;  Fisher  v. 
Cowles,  41  Kan.  418;  Cox  v.  Wayt,  26  W.  Va.  807;  Shelton  v.  Aultman, 
etc.,  Co.,  82  Ala.  315. 

7S  Edwards  v.  Thorn,  25  Fla.  222, 

74  Carlisle  v.  Carlisle,  78  Ala.  542;  Clark  r.  Wilson,  27  111.  App.  610; 
«.  c.  127  111.  449,  19  N.  E.  Rep.  860. 

75  Brown  v.  Swift  (Ky.),  1  S.  W.  Rep.  474. 

76  Webb  V.  Mullins,  78  Ala.  111.  See  Gaskins  v.  Allen  (N.  C.  1905), 
49  S..E.  Rep.  919. 

77  Simmons  V.  Havens,  101  N.  Y.  427. 

78  Davis  V.  Higgins,  91  N.  C.  382;  Howell  V.  Ray,  92  N.  C.  510. 
70  Jones  V.  Hough,  77  Ala.  437. 

824 


CH.    XXIII.]  REQUISITES   OP   A   DEED.  §    574 

a  judicial  act.  It  is,  therefore,  no  objection  to  the  acknowl- 
edgment that  it  was  taken  by  an  officer  related  to  the  parties, 
although  if  he  is  interested  in  the  conveyance  the  certificate 
will  be  valueless.®"  And  where  the  officer  is  only  authorized 
to  perform  his  special  duties  within  certain  limits  of  terri- 
tory, an  acknowledgment  taken  by  him  without  these  limits, 
would,  of  course,  be  void.*^  So,  also,  where  the  officer's  com- 
mission had  expired  by  limitation,  when  he  took  the  ac- 
knowledgment or  probate.®^  But  the  authority  of  a  notary  de 
facto  cannot  be  questioned  in  a  collateral  proceeding.®^  A 
proper  certificate  should  show  that  all  the  requirements  of  the 
statute  were  substantially  complied  with.®*  But  if  the  cer- 
tificate of  acknowledgment  is  erroneously  prepared  it  may  be 
corrected  and  made  to  conform  to  the  facts  by  the  officer 

soBeaman  V.  Whitney,  20  Me.  413;  Withers  V.  Baird,  7  Watta  227; 
Stevens  V.  Hampton,  46  Mo.  408;  Bekeman  V.  Arnold  (Mich.),  44  N. 
W.  Rep.  407;  Bowden  v.  Parrish  (Va.),  9  S.  E.  Rep.  616.  But  see 
Stevenson  v.  Brasher  (Ky.  1890),  13  S.  W.  Rep.  175;  Corey  v.  Moore 
(Va.),  11  S.  E.  Rep.  114.  In  one  of  the  Western  States  a  deed  was 
presented  for  registration,  in  which  the  acknowledgment  of  a  married 
woman,  as  grantor,  was  taken  by  her  husband  as  notary  public,  and 
he  certified  that  she  was  examined  separate  and  apart  from  her  hus- 
band. It  is  needless  to  remark  that  the  deed  was  not  a  valid  convey- 
ance. "  A  deed  of  trust  acknowledged  before  the  grantee  named  therein 
as  notary  public  is  void."  Lance  v.  Tainter  (N.  C.  1904),  49  S.  E.  Rep, 
211. 

81  Lynch  v.  Livingston,  8  Barb.  463 ;  s.  c.  6  N.  Y.  422 ;  Thurman  v. 
Cameron,  24  Wend.  91 ;  Mut.  Life  Ins.  Co.  V.  Corey,  54  Hun  493,  7  N. 
Y.  S.  939.  Contra,  Odiorne  V.  Mason,  9  N.  H.  30.  But  in  Massachu- 
setts a  magistrate  for  one  county  may  take  acknowledgments  in  another 
county.  Learned  v.  Riley,  14  Allen,  109.  "  In  Michigan,  under  the 
statute,  a  notary  public  of  one  county  may  take  acknowledgments  in 
another."  Lamb  v.  Lamb  (Mich.  1905),  102  N.  W.  Rep.  645,  11  Detroit 
Leg.  N.  805. 

82  Quimby  v.  Boyd,  8  Col.  194. 

83  Bullene  V.  Garrison,  1  Wash.  587. 

84  Chandler  v.  Spear,  22  Vt.  388;  Wood  v.  Cochrane,  39  Vt.  544: 
Tully  V.  Davis,  30  111.  108;  Jacoway  V.  Gault,  20  Ark.  190;  Huff  v. 
Webb,  64  Texas  284;  Butler  v.  Brown,  77  Texas  342,  14  S.  W.  136; 
Owen  V.  Baker  (Mo.),  14  S.  W.  Rep.  175. 

825 


§    575  REQUISITES   OP   A   DEED.  [PART   IH, 

who  took  the  acknowledgment.*'  In  some  of  the  States  the 
certificate  is  not  conclusive  evidence  of  the  facts  stated  therein, 
but  it  contains  prima  facie  evidence  of  its  own  genuineness,  as 
well  as  of  the  facts  therein  stated."'  And,  no  doubt,  in  all  of 
the  States,  as  between  the  parties,  the  certificate  may  be  im- 
peached for  fraud.*^  But  in  other  States  the  certificate  is 
conclusive  against  subsequent  purchasers  as  to  the  facts  stated 
therein.*"  It  must  be  observed  that  the  acknowledgment  or 
probate  is  intended  to  evidence  the  due  execution  of  the  deed, 
and  not  to  supply  any  of  its  deficiencies.  If  the  deed  is  in 
itself  inoperative,  on  account  of  some  serious  deficiency,  it 
cannot  be  cured  by  any  statements  or  admissions  in  the  cer- 
tificate.*' 

§  575.  Reading  of  the  deed,  when  necessary. —  Although  the 
reading  of  the  deed  to  the  grantor  and  grantee  can  hardly  be 

85  Ralston  V.  Moore,  83  Ky.  571.  See  Wilson  v.  Braden  (W.  Va.),  49 
S.  E.  Eep.  409. 

88  Jackson  V.  Schoonmaker,  4  Johns.  161;  Jackson  V.  Hoyner,  12 
Johns.  472;  Hall  v.  Patterson,  51  Pa.  St.  289;  Landers  V.  Bolton,  26 
Cal.  406;  Harrison  v.  Oakman,  56  Mich.  390;  Farrior  V.  New  England, 
etc.,  Co.,  88  Ala.  275;  O'Neil  v.  Webster,  150  Mass.  572,  23  N.  E.  Rep. 
235. 

87Eyster  V.  Hathaway,  50  111.  522;  Williams  v.  Baker,  71  Pa.  St. 
482;  Graham  V.  Anderson,  42  HI.  514;  Bissett  v.  Bissett,  1  Ear.  & 
McH.  211;  Razor  v.  Dowan   (Ky.),  3  S.  W.  Rep.  914. 

88  Bissett  V.  Bissett,  1  Har.  &  McH.  211;  McNeely  V.  Rucker,  6 
Blackf.  391;  Hester  v.  Glasgow,  79  Pa.  St.  79,  21  Am.  Rep.  461; 
Singer  Mfg.  Co.  v.  Rook,  84  Pa.  St.  442,  24  Am.  Rep.  204.  And  this  is 
true,  also,  in  respect  to  the  certificate  of  acknowledgment  by  a  married 
woman.  White  V.  Graves,  107  Mass.  325,  9  Am.  Rep.  38;  Kerr  v.  Rus- 
sell, 69  111.  666,  18  Am.  Rep.  634;  Sing«r  Mfg.  Co.  v.  Rook,  84  Pa.  St. 
442,  24  Am.  Rep.  204;  Johnstone  v.  Wallace,  53  Miss.  331,  24  Am.  Rep. 
699.  And  where  the  certificate  in  a  married  woman's  deed  is  defective, 
it  cannot  be  subsequently  amended,  unless  the  defect  or  mistake  relates 
to  an  unimportant  fact.  Angier  v.  Schieifelin,  72  Pa.  St.  106,  13  Am. 
Rep.  659;  Merritt  V.  Yates,  71  111.  636,  22  Am.  Rep.  128.  But  see,  Mas- 
terson  v.  Harris  (Texas  1904),  83  S.  W.  Rep.  428;  Johnson  v.  Callaway 
(Texas  1905),  87  S.  W.  Rep.   178. 

8»  White  V.  Connelly,  105  N.  C.  65 ;  Turner  v.  Connelly,  105  N.  C.  72. 
826 


CH.    XXIII.]  REQUISITES    OF    A    DEED.  §    5i6 

called  a  requisite  of  the  deed,  yet  if  the  party  is  unable  to 
read,  and  requests  the  deed  to  be  read  to  him,  a  failure  to 
comply  with  his  request,  or  a  false  reading  or  statement  of  its 
contents,  would  vitiate  the  deed.®"  The  same  rule  applies 
to  those  who  cannot  read  the  language  in  which  the  deed  is 
written.®^  But  he  must  make  the  request.  If  he  does  not,  he 
comes  under  the  general  rule  that  a  grantor  is  presumed  to 
know  the  contents  of  the  deed,  and  cannot  avoid  it  on  the 
plea  of  ignorance  of  its  contents,  unless  the  circumstances  of 
the  transaction  are  sufficient  to  sustain  the  charge  of  fraud, 
accident  or  mistake.®^ 

§  576.  Delivery  and  acceptance. —  After  the  deed  has  been 
signed,  sealed  and  acknowledged,  the  next  requisite  is  its  de- 
li verj'  by  the  grantor  and  its  acceptance  by  the  grantee. 
These  acts  are  as  essential  to  the  validity  of  a  deed  as  sign- 
ing or  sealing.®^     As  long  as  it  remains  in  the  possession  of 

90  Manser's  Case,  2  Rep.  3 ;  Henry  Pilot's  Case,  1 1  Rep.  27  b ;  Souver- 
bye  V.  Arden,  1  Johns.  Ch.  252;  Jackson  v.  Hayner,  12  Johns.  460; 
Withington  v.  Warren,  10  Mete.  434;  Shofer  v.  Bonander  (Mich.),  45 
N.  W.  Rep.  487;  SufTern  v.  Butler,  18  N.  J.  Eq.  (3  Green,  C.  E.)  220; 
Thoroujjhjrood's  Case,  2  Co.  9,  a.  b. ;  Hallenbeck  v.  DeWitt,  2  Johns.  404. 
See  Withington  V.  Warren,  10  Met.  434 ;  Rex  v.  Longnor,  1  Nev.  &  M. 
57(5;  Rossetter  V.  Simmons,  6  Serg.  &  R.  452;  Lyons  v.  Van  Riper,  26 
N.  J.  Eq.   (11  C.  E.  Green)   337;  Morrison  v.  Morrison,  26  Gratt.  190. 

91  School  Committee  of  Prov.,  etc.,  v.  Kesler,  67  N.  C.  443;  Jackson  f. 
Cory,  12  Johns.  427. 

92  Hartshorn  v.  Day,  19  How.  223;  Truman  v.  Lore,  14  Ohio  St.  155; 
School  Committee  of  Prov.,  etc.,  v.  Kesler,  67  N.  C.  443;  Jackson  v. 
Cory,  12  Johns.  427;  Rogers  v.  Place,  29  Ind.  577;  Russell  v.  Branham, 
i  Blackf.  277.  See,  Stevens  v.  Ozbum  (Tenn.  1901),  1  Tenn.  Ch.  App. 
213;  Cor.  Mem.  Ch.  Lat.  Day  Saints  v.  Watson  (Utah  1902),  69  Pac. 
Rep.  531.  "  It  is  not  necessary  that  a  person  about  to  execute  a  deed 
should  have  the  ability  to  understand  the  legal  effect  of  the  words  em- 
ployed, if  the  effect  of  the  instrument  as  a  conveyance  of  property  is 
understood."     Mocrhead  v.  Scovel   (Pa.  1904),  60  Atl.  Rep.  13. 

98Goddard'8  Case,  2  Rep.  4b;  Younge  v.  Gilbeau,  3  Wall.  641; 
Church  V.  Oilman,  15  Wend.  656;  Fisher  ».  Hall,  41  N.  Y.  421;  Johnson 
V.  Farley,  45  N.  H.  510;  Overman  v.  Kerr,  17  Iowa  486;  Fisher  V. 
Beckwith,  30  Wis.  55,  11  Am.  Rep.  546;  I  Dev.  222,  n.  1. 

827 


§  576  REQUISITES  OF  A  DEED.  [PART  III. 

the  grantor,  and  even  where  the  deed  has  been  stolen,  and 
the  property  passes  into  the  hands  of  an  innocent  purchaser, 
or  where  the  deed  falls  into  the  possession  of  the  grantee  in 
any  other  way  than  by  the  consent  of  the  grantor  and  with 
the  intention  to  pass  the,  title,  the  title  is  still  in  the  grantor, 
and  no  one  can  acquire  title  from  the  grantee."*  But  if  it  is 
once  delivered,  no  subsequent  act  of  the  grantor  can  impair 
the  validity  of  the  conveyance.  The  title  is  in  the  grantee, 
and  it  cannot  be  recovered  from  him  except  in  one  of  the 
legal  and  formal  ways  recognized  by  the  law  for  acquiring 
property.®'  And  though  the  delivery  was  made  by  the 
grantor  through  the  fraudulent  misrepresentations  of  the 
grantee,  or  through  some  mistake  of  fact  or  law,  if  the  de- 
livery was  an  intentional  act,  it  passes  the  title,  and  can  only 
be  divested  by  an  equitable  proceeding.  If  the  property  is 
in  the  meantime  conveyed  to  an  innocent  purchaser,  he  ac- 
quires an  indefeasible  title.®*     The  title  also  passes,  notwith- 

9*  Thoroughgood's  Case,  9  Rep.  136 ;  Chamberlain  V.  Staunton,  1 
Leon.  140;  Mills  v.  Gore,  20  Pick.  28;  Black  v.  Lamb,  12  N.  J.  Eq.  108; 
Fisher  v.  Beckwith,  30  Wis.  55,  11  Am.  Rep.  546;  Dwinell  v.  Bliss,  68 
Vt.  353;  Mitchell  V.  Shortt,  113  111.  251;  Miller  v.  Murfield  (Iowa),  44 
N.  W.  Rep.  540;  McElroy  v.  Hiner  (111.),  24  N.  E.  Rep.  435;  Martling 
V.  Martling  (N.  J.),  20  Atl.  Rep.  41;  Cline  v.  Jones,  111  111.  563; 
Anderson  v.  Anderson  (Ind.),  24  N.  E.  Rep.  1036;  Stevens  v.  Stevens, 
150  Mass.  557,  23  N.  E.  Rep.  357;  4  Kent.  Com.  459;  5  Greenl.  Cruise, 
Tit.  Deed  45,  46,  3  Am.  Dec.  415;  1  Story's  Eq.  Juris.,  Sees.  75,  76; 
Hoag  V.  Owen,  60  Barb.  34;  Fisher  v.  Hall,  41  N,  Y.  416;  Crosby  v. 
Hillyer,  24  Wend.  280;  Fonda  v.  Sage,  48  N.  Y.  173;  Gilbert  V. 
North  American  Fire  Ins.  Co.,  23  Wend.  43,  35  Am.  Dec.  543;  Sut- 
ton V.  Gibson  (Ky.  1904),  84  S.  W.  Rep.  335;  Houston  L.  &  T. 
Co.  V.  Hubbard  (Tex.  1904),  85  S.  W.  Rep.  474;  Gardiner  v.  Gardi- 
ner (Mich.  ■  19'^'?  S  95  N.  W.  Rep.  973;  Parken  v.  SaflFord  (Fla.  1904), 
37  So.  Rep.  567;  Joslin  v.  Goddard  (Mass.  1905),  72  N.  E.  Rep. 
948;  Peters  v.  Bernheimer  (Mo.  1904),  83  S.  W.  Rep.  747;  Powers  V. 
Rude  (Okla.  1904),  79  Pac.  Rep.  89. 

»5  Shelton's  Case,  Cro.  Eliz.  7;  Souverbye  v.  Arden,  1  Johns.  Ch.  255; 
Connelly  v.  Doe,  8  Blackf.  320;  Hyne  v.  Osborn,  62  Mich.  235,  28  N.  W. 
Rep.  821;  Denver  &  S.  F.  R.  R.  Co.  v.  School  Dist.  (Colo.),  23  Pac. 
Rep.  978. 

»"  Berry  v.  Anderson,  22  Ind.  41. 
828 


CH.    XXIII.])  REQUISITES   OF   A   DEED.  §    576 

standing  both  parties  believed  that  the  title  will  not  pass  by 
delivery  of  the  deed.^"  To  make  a  good  delivery,  the  deed 
must  be  executed  completely."^  A  delivery  before  its  com- 
pletion is  of  no  effect.  But,  except  in  the  case  of  a  married, 
woman's  deed,  a  delivery  before  the  acknowledgment  of  pro- 
bate will  be  good,  particularly  in  those  States  where  the  ac- 
knowledgment is  not  a  requisite  to  the  validity  of  the  deed; 
although  it  seems  that  a  delivery  will  not  be  presumed  to  have 
been  made  before  the  date  of  acknowledgment."®  Usually  the 
deed  contains  the  date  of  its  execution  and  delivery,  and  al- 
though a  date  is  not  necessary  to  the  validity  of  the  deed,^  if 
it  contains  a  date,  the  deed  will  be  presumed  to  have  been 
executed  and  delivered  on  that  date.-  But  the  deed  only  takes 
effect  from  the  actual  time  of  delivery,  and  the  actual  date 
of  delivery  will  always  control  the  date  mentioned  in  the 
deed.'  It  has,  however,  been  held  that  the  delivery  will  be 
presumed  from  the  date  of  acknowledgment.*     The  deed  must 

»7  HenchliflFe  v.  Hinman,  18  Wis.  138. 

98  Burns  v.  Lynde,  6  Allen  30.5;  McKee  v.  Hicks,  2  Dev.  379. 
e»  People  v.  Snyder,  41  N.  Y.  402;  Blanchard  v.  Tyler,  12  Mich.  339. 
See  Fischen  v.  U.  T.  Co.   (Mich.  1904),  101  N.  W.  Rep.  852. 

1  Goddard's  Case,  2  Rep.  4b;  Jackson  t\  Schoonmaker,  2  Johns.  234; 
Genter  v.  Morrison,  31  Barb.   155 ;  Banning  v.  Edes,  6  Minn.  402. 

2  Kent,  C.  J.,  in  Jackson  v.  Schoonmaker,  2  Johns.  230,  231 ;  Meech 
V.  Fowler,   14  Ark.  29;   Lyerly  v.  Wheeler,   12   Ired.  290.  53  Am.  Dec. 
414;  Newlin  V.  Osborne,  4  Jones  (n.  c.)   157,  67  Am.  Dec.  269;  Costigan 
V.  Gould,  5  Denio  290;  Ellsworth  v.  Central  R.  R.  Co.,  34  N.  J.  L.  93 
Sweetser  v.  Lowell,  33  Me.  446;  Treadwell  v.  Reynolds,  47  Cal.   171 
Raines  v.  Walker,   77  Va.  92;   Harman  V.  Oberdorfer,  33  Gratt.   497 
Ellsworth  V.  Central  R.  R.  Co.,  34  N.  J.  L.  93;   3  Washburn  on  Real 
Prop.  286;  Faulkner  V.  Adams,  126  Ind.  459.     "A  deed  is  presumed  to 
have  been  delivered  on  the  day  of  its  date."     McBrayer  v.  Walker   (Ga. 
1905),  50  S.  E.  Rep.  95.     Delivery  is  a  question  of  fact.     Chastek  f. 
Souba   (Minn.  1904),  101  N.  W.  Rep.  618. 

»Xeno8  V.  Wickham,  14  C.  B.  (n.  8.)  469;  Mitchell  r.Bartlett,  51  N. 
Y.  453;  Smith  v.  Porter,  10  Gray  67;  Lyon  v.  Mcllvain,  24  Iowa  15; 
Walker  v.  Rand,  22  N.  E.  Rep.  1006  (111.).  Mr.  Justice  Breese  in 
Blake  v.  Fash,  44  111.  302;  Sweetser  t^  Lowell,  33  Me.  446. 

♦  Fontaine  v.  Boatmen's  Savings  Institution,  57  Mo.  552,  561;  County 
of  Henry  v.  Bradshaw,  20  Iowa  355;  Loomia  v.  Pingree,  43  Maine  299, 

829 


§  576  REQUISITES  OF  A  DEED.  [PART  UI. 

also  be  delivered  during  the  life-time  of  the  grantor.  A  de- 
livery after  his  death  will  have  no  effect.'*  But  there  may  be 
an  acceptance  by  the  grantee  after  the  grantor's  death.*"  Ac- 
ceptance by  the  grantee  is  equally  essential  with  delivery  by 
the  grantor.  And  where  no  proof  of  acceptance  is  offered, 
and  the  facts  do  not  justify  the  legal  presumption  of  accept- 
ance, no  title  passes.^  Until  acceptance  by  the  grantee,  the 
title  is  subject  to  the  claims  of  creditors  who  have  levied  upon 
the  property  after  a  tender  of  delivery.*  So,  also,  if  the 
grantor  tenders  the  deed  and  the  grantee  declines  to  accept, 
the  title  remains  unaffected  in  the  grantor.®  But  the  ac- 
ceptance may  precede  the  complete  execution  of  the  deed.^** 
If  there  are  several  grantees  in  a  deed,  the  deed  may  be  de- 
livered to  them  individually  on  separate  days.  But  the 
grantor  may  by  express  declaration  make  the  delivery  to  one 

308.  "  Where  deeds  are  duly  signed,  acknowledged,  and  recorded,  it  is 
presumed  that  they  were  properlj'  delivered."  Webb  v.  Webb  ( Iowa 
1905),  104  N.  W.  Rep.  438. 

sShoenberger  v.  Zook,  34  Pa.  St.  24;  Jackson  v.  Leek,  12  Wend.  107; 
Jackson  V.  Phipps,  12  Johns.  421;  Woodbury  v.  Fisher,  20  Ind.  388; 
Weisinger    l*.    Cocke    (Miss.),    7    So.    Rep.    495;    Peters    V.    Bemheimer 

(Mo.  1904),  83  S.  W.  Rep.  747. 

« See  post,  Sec.  578.  "  A  grantor  who  delivers  a  deed  to  a  third 
party,  to  be  delivered  to  the  grantee  upon  the  grantor's  death,  cannot 
change  his  purpose  and  revoke  the  conveyance."    Tompkins  v.  Thompson 

(N.  Y.  Sup.  1905),  93  N.  Y.  S.  1070.  "The  delivery  of  a  deed  in 
escrow,  to  be  delivered  to  the  grantee  on  the  grantor's  death,  immedi- 
ately vesta  the  title  in  the  grantee,  qualified  only  by  the  life  estate  of 
the  grantor."     Wilhoit  v.  Salmon   (Cal.  1905),  80  Pac.  Rep.  705. 

7  Rogers  v.  Gary,  47  Mo.  232;  Younge  V.  Guilbeau,  3  Wall.  036;  Jack- 
son V.  Phipps,  12  Johns.  421;  Wilsey  v.  Dennis,  44  Barb.  359;  Fonda  V. 
Sage,  46  Barb.  123;  Hatch  V.  Bates,  54  Me.  140;  Baker  v.  Haskell,  47 
N.  H.  479;  Kingsbury  f.  Burnside,  58  111.  310.  "The  acceptance  of  a 
conveyance  which  is  for  the  benefit  of  the  grantees  will  be  presumed." 
Whitaker  V.  Whitaker   (Mo.  1903),  74  S.  W.  Rep.  1029. 

8  Parmelee  v.  Simpson,  5  Wall.  86 ;  Derry  Bank  v.  Webster,  44  N.  H. 
268 ;  Johnson  v.  Farley,  45  N.  H.  509 ;  Hibberd  v.  Smith,  07  Cal.  547. 

» Tompkins  V.  Wheeler,  16  Pet.  119;  Derry  Bank  v.  Webster,  44  N, 
H.  268;  Johnson  v.  Farley,  45  N.  H.  509;  Xenos  v.  Wickham,  14  C.  B. 
(N.  s.)  474;  Welsh  v.  Sackett,  #  Wis.  243. 

loDikeman  v.  Arnold  (Mich.),  44  N.  W.  Rep.  407. 
830 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    577 

answer  as  a  delivery  to  all,  and  in  that  case,  the  acceptance 
by  one  is  presumed  to  be  a  sufficient  acceptance  for  all.^^ 
And  where  the  deed  conveys  conditional  limitations  and  re- 
mainders, the  delivery  to  the  tenant  of  the  particular  estate 
always  constitutes  a  delivery  to  the  tenants  of  the  future  or 
expectant  estate.  ^^ 

§  577.  What  constitutes  a  sufficient  delivery. —  If  the  deed 
is  found  in  the  possession  of  the  grantee,  a  delivery  and  ac- 
ceptance are  presumed.^^  But,  like  other  legal  presumptions, 
it  is  liable  to  be  rebutted  by  proof  that  the  possession  of  it 
was  obtained  without  the  intention  of  the  grantor  to  make  a 
delivery,  or  without  his  consent,  and  parol  evidence  is  ad- 
missible to  establish  this  fact.^*  In  determining  what  will 
constitute  a  sufficient  delivery,  it  is  found  that  the  intention 
is  the  controlling  element.^''     No  particular  formality  need 

"Hannah  v.  Swarner,  8  Watts  9;  Tewksbury  tJ,  O'Connell,  20  Cal. 
69;  Shelden  v.  Erskine  (Mich.),  44  N.  W.  Rep.  146. 

12  Phelps  V.  Phelps,  17  Md.  134;  Folk  v.  Varn,  9  Rich.  Eq.  303. 
"  Delivery  to  the  life  tenant  alone  of  a  deed  conveying  a  life  estate, 
with  remainder  to  otRers,  is  sufficient."  Chapin  v.  Nott  (111.  1903),  67 
N.  E.  Rep.  833,  203  111.  341. 

13  Ward  V.  Lewis,  4  Pick.  518;  Ward  v.  Ross,  1  Stew.  (Ala.)  136; 
Butrick  v.  Tilton,  141  Mass.  93;  Simmons  v.  Simmons,  78  Ga.  365; 
Sturtevant  v.  Sturtevant,  116  111.  340;  Brown  v.  Danforth,  9  N.  Y.  S. 
19;  Strough  V.  Wilder,  119  N.  Y.  530,  23  N.  E.  Rep.  1057;  Faulkner 
V.  Adams,  126  Ind.  4.59.  "  In  the  absence  of  testimony  that  there  was 
no  delivery,  the  law  will  presume  a  delivery  from  possession  of  the 
deed  by  the  grantee."  Wilbur  v.  Grover  (Mich.  1905),  103  N.  W.  Rep. 
583,  12  Detroit  Leg.  N.  99.  "  In  case  of  a  voluntary  settlement,  the  law 
presumes  much  more  in  favor  of  the  delivery  of  the  deed,  whereby  the 
settlement  is  created,  than  it  does  in  ordinary  cases  of  deeds  of  bargain 
and  sale."     Baker  v.  Hall   (111.  1905),  73  N.  E.  Rep.  351,  214  111.  364. 

"Johnson  r.  Baker  4  B.  &  Aid.  440;  Adams  v.  Frye,  3  Mete.  109; 
Ford  V.  James,  2  Abb.  Pr.  162;  Black  v.  Shreve,  13  N.  J.  457;  Little  i\ 
Gibson,  39  N.  H.  505;  Williams  V.  Sullivan,  10  Rich.  Eq.  217;  Morris  t?. 
Henderson,  37  Miss.  501;  Wolverton  v.  Collins,  34  Iowa  238;  Major  v. 
Todd,  84  Mich.  85. 

15  Jordan  v.  Davis,  108  111.  336;  Warren  v.  Swett,  31  N.  H.  332;  Ruck- 
man  V.  Ruckman,  32  N.  J.  Eq.  259;  TRbmpson  v.  Hammond,  1  Edw.  Ch. 
497;   Dukes  v.  Spangler,  9  Cent.  L.  J.  398;  Burkholder  v.  Casad,  47 

831 


§  577  REQUISITES  OP  A  DEED.  [PART  III. 

be  observed,  and  the  intention  to  deliver  the  deed  may  be 
manifested  by  acts,  or  by  words,  or  by  both.  But  one  or  the 
other  must  be  present  to  make  a  {?ood  delivery.  The  grantor 
may  direct  the  grantee  to  take  the  deed  lying  upon  the  table, 
and  if  the  latter  does  so,  the  delivery  is  complete.  So  also 
if  the  deed  is  thrown  down  upon  the  table  by  the  grantor, 
with  the  intention  that  the  grantee  should  take  it,  although 
nothing  should  be  said,  it  will  be  a  good  delivery.^*'  But  the 
intention  may  be  manifested  by  still  more  informal  proceed- 
ings. The  deed  need  not  be  actually  delivered  if  the  grantor 
intends  the  execution  to  have  the  effect  of  a  delivery,  and  the 
parties  act  upon  the  presumption.^^  Thus  leaving  the  deed 
to  be  recorded,  if  done  with  the  knowledge  of  the  grantee,  and 
more  particularly  when  this  is  done  with  the  evident  or  ex- 
pressed intention  that  the  title  shall  pass  to  the  grantee,  will 
ordinarily  be  held  a  good  delivery.^*     But  the  intention  that 

Ind.  418;  Hastings  V.  Vaughn,  5  Cal.  315.  And  see  Harris  v.  Harris, 
59  Cal.  620. 

16  Souverby  v.  Arden,  1  Johns.  Ch.  253 ;  Scrughawi  V.  Wood,  15  Wend, 
545 ;  Pennsylvania  Co.  v.  Dovey,  67  Pa.  St.  260 ;  Ray  V.  Hallenbeck,  42 
Fed.  Rep.  381;  Hubbard  V.  Cox,  76  Texas  239,  13  S.  W.  Rep.  170; 
Reiser  v.  Reiser,  8  N.  Y.  S.  55;  Messelback  v.  Norman,  46  Hun  414; 
Walker  v.  Walker,  42  111.  311;  Cannon  v.  Cannon,  26  N.  J.  Eq.  (11 
Green,  C.  E.)  316;  Whittaker  v.  Miller,  83  111.  381;  Wood  on  Convey- 
ancing, 193;  3  Washburn  on  Real  Prop.  286;  O'Neal  v.  Rrown,  67  Ga. 
707 ;  Snow  V.  Orleans,  126  Mass.  453 ;  Jones  V.  Loveless,  99  Ind.  327 ; 
Davis  V.  Cross,  14  La.  (Tenn.)  637,  52  Am.  Rep.  177;  Rrown  v.  Rrown, 
66  Me.  316,  320;  Turner  v.  Whidden,  22  Me.  121;  Shep.  Touch.  57,  58; 
Chess  V.  Chess,  21  Am.  Dec.  350;  Hughes  v.  Easten,  4  Marsh.  J.  J.  572, 
20  Am.  Dec.  230;  Warren  V.  Sweet,  31  N.  H.  (11  Frost.)  332;  Eastman, 
J.  (p.  340).  "To  constitute  delivery  of  a  deed,  it  is  not  imperatively 
necessary  that  there  be  an  actual  manual  delivery  of  the  instrument." 
Chastek  v.  Souba   (Minn.  1904),  101  N.  W.  Rep.  618. 

IT  Walker  v.  Walker,  42  111.  311;  Rogers  v.  Carey,  47  Mo.  235. 

18  Parmelee  v.  Simpson,  5  Wall.  86 ;  Elmore  v.  Marks,  39  Vt.  538 ; 
Pennsylvania  Co.  v.  Dovey,  64  Pa.  St.  260;  Jackson  V.  Phipps,  12  Johns. 
418;  Stillwell  V.  Hubbard,  20  Wend.  44;  Mills  V.  Gore,  20  Pick.  28; 
Hawks  V.  Pike,  105  Mass.  560;  Hatch  v.  Rates,  54  Me.  139;  Cusack  v. 
Tweedy,  56  Hun  617;  Greene  v.  Conant  (Mass.),  24  N.  E.  Rep.  44; 
Geissmann  v.  Wolf,  46  Hun  289;  Gififord  v.  Corrigan,  117  N.  Y.  257,  22 
832 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    577 

the  registration  is  to  operate  as  a  delivery  must  be  established, 
if  it  is  disputed  or  thrown  into  doubt.^*  The  execution  of  a 
deed  before  witnesses  will  be  a  fact  from  which  delivery  may 
be  presumed.^"  On  the  other  hand,  if  after  execution  the 
deed  is  retained  by  the  grantor  for  any  purpose  which  pre- 
vents the  transaction  from  being  complete,  as  where  it  is  held 
as  security  for  the  purchase-money,  there  will  be  no  pre- 
sumption of  delivery.^^  In  order  that  any  acts  may  consti- 
tute a  sufficient  delivery,  except  in  the  case  of  an  escrow,  the 
grantor  must  part  with  all  control  of  the  deed.  If  he  retains 
the  control  in  any  manner,  as  where  he  makes  the  delivery 
conditionally,  the  delivery  will  not  be  sufficient.-'^  Where  the 
grantor  is  a  corporation,  nothing  more  is  usually  required  to 
make  a  good  delivery  than  that  the  deed  should  be  executed 
and  the  common  seal  of  the  corporation  affixed  to  the  deed. 

N.  E.  Rep.  756;  Colec  v.  Colee,  122  Ind.  109,  23  N.  E.  Rep.  687;  Rosa 
V.  Campbell,  73  Ga.  309;  Tobin  v.  Bass,  85  Mo.  654,  55  Am.  Rep.  392; 
Vaughn  V.  Godman,  109  Ind.  499;  Messelback  V.  Norman,  46  Hun  414; 
Collins  V.  Collins,  45  N.  J.  Eq.  813,  18  Atl.  Rep.  860;  Diefendorf  v. 
Diefendorf,  8  N.  Y.  S.  617;  Reid  v.  Abernethy,  77  Iowa  438;  Huse  V.' 
Den,  85  Cal.  390.  "  The  acknowledgment  and  recording  of  a  deed  af- 
fords a  presumption  of  a  legal  delivery  by  the  grantor."  Dayton  t*. 
Stewart  (Md.  1904),  59  Atl.  Rep.  281.  "The  recording  of  a  deed  by 
the  grantor  is  not  necessarily  a  delivery,  but  a  circumstance  which  may 
be  looked  to  on  that  question."  Johnson  V.  Johnson  (Tex.  Civ.  App. 
1905),  85  S.  W.  Rep.  1023. 

10  Maynard  V.  Maynard,  10  Mass.  456 ;  Jackson  v.  Phipps,  12  Johns. 
418;  Elsey  v.  Metcalf,  1  Denio  326;  Fennel  v.  Weyant,  2  Harr.  501; 
Jones  V.  Bush,  4  Harr.  1;  Stevens  v.  Castell,  63  Mich.  HI,  29  N.  W. 
Rep.  828. 

20  Moore  v.  Hasleton,  9  Allen  106 ;  Howe  v.  Howe,  99  Mass.  98 ;  Loud 
V.  Brigham   (Mass.),  28  N.  E.  Rep.  7, 

21  Jackson  v.  Dunlap,  1  Johns.  Cas.  114;  Turner  v.  Carpenter,  63  Mo. 
333;  Wainwright  V.  Low,  57  Hun  386. 

22  Cook  t;.  Brown,  34  N.  H.  476 ;  Phillips  v.  Houston,  5  Jones  L.  302 ; 
Somers  r.  Pumphrey,  24  Ind.  240;  Rivard  v.  Walker,  39  111.  413.  "A 
valid  delivery  of  a  deed  conveying  land  is  not  shown,  when  it  appears 
that  it  was  the  intent  of  the  grantor  that  the  delivery  should  relate 
to  the  date  of  hia  death."  Schlieher  v.  Keleer  (N.  J.  1905),  61  Atl. 
Rep.  434. 

S3  833 


§578  REQUISITES   OF   A   DEED.  [PART   III. 

But  if  the  corporation,  in  executing  the  deed,  appoint  an 
agent  to  make  a  delivery,  the  formal  delivery  will  be  re- 
quired.^^  Where  the  grantee  is  a  corporation,  a  delivery  to 
an  authorized  agent  and  acceptance  by  him  are  considered  the 
acts  of  the  corporation,  and,  therefore,  constitute  a  sufficient 
delivery  and  acceptance.''* 

§  578.  Delivery  to  stranger,  when  assent  of  grantee  pre- 
sumed.—  Although  some  doubt  was  entertained  at  an  early 
day  as  to  its  validity,  it  seems  now  to  be  well  settled  that  if 
a  deed  is  delivered  to  a  stranger  for  the  grantee,  even  though 
the  grantee  has  not  authorized  the  third  person  to  receive  it, 
if  it  is  subsequently  assented  to  by  the  grantee,  it  will  con- 
stitute a  good  delivery.^'  But  the  grantor  must  part  with  his 
entire  control  over  the  deed.  If  the  deed  is  handed  to  a 
stranger  to  be  delivered  to  the  grantee  when  the  grantor 
should  so  direct,  or  the  direction  is  to  deliver  it  at  a  specified 
time,  unless  the  order  is  countermanded,  if  the  circumstances 
do  not  make  the  deed  an  escrow,  the  delivery  to  the  stranger 
will  not  be  sufficient  to  pass  the  title.^*     And  although  the  law 

23  3  Washburn  on  Real  Prop.  287,  288 ;  Co.  Lit.  22  n,  36  n. 

24  Western  R.  R.  V.  Babcook.  6  Mete.  356. 

25  Doe  V.  Knight,  5  B.  &  C.  671;  Hatch  v.  Bates,  54  Me.  139;  Rug- 
gles  V.  Lawson,  13  Johns.  285;  Church  v.  Giliiian,  15  Wend.  656; 
Stephens  f.  Rinehart,  72  Pa.  St.  440;  Kingsbury  v.  Burnside,  58  111. 
310;  Ray  r.  Hallenbeck,  42  Fed.  Rep.  381;  Brown  v.  Danforth,  9  N.  Y. 
S.  19;  Ward  v.  Small's  Admr.  (Ky.),  13  S.  W.  Rep.  1070;  Orr  V.  Clark 
(Vt.),  19  Atl.  Rep.  929;  Diefendorf  v.  Diefendorf,  8  N.  Y.  S.  617; 
Munoz  V.  Wilson,  111  N.  Y.  295;  Hatch  v.  Bates,  54  Me.  136;  Stephens 
V.  Huss,  54  Pa.  St.  20;  Turner  v.  Whidden,  22  Me.  121;  Cincinnati  R. 
R.  Co.  V.  Hiff,  13  Ohio  St.  235;  Merrills  V.  Swift,  18  Conn.  257,  46  Am. 
Dec.  315;  Morrison  V.  Kelly,  22  HI.  610,  74  Am.  Dec.  169;  Peavey  f. 
Tilton,  18  N.  H.  151,  45  Am.  Dec.  365;  Ells  v.  Mo.  Pac.  Ry.,  40  Mo. 
App.  165. 

26Prestman  V.  Baker,  30  Wis.  644;  Phila.  W.  &  B.  R.  R.  v.  Howard, 
13  How.  334;  Black  v.  Shreve,  13  N.  J.  459;  Cook  v.  Brown,  34  N.  H. 
476;  Phillips  V.  Houston,  5  Jones  L.  302;  Millett  v.  Parker,  2  Mete. 
(Ky.)  613;  Shirley  V.  Ayres,  14  Ohio  310;  Fitch  r.  Bunch,  30  Cal.  213; 
Porter  v.  Woodhouse,  59  Conn.  568;  Robertson  v.  Woodhouse,  76.    "  The 

834 


CH.  xxiil]  requisites  of  a  deed.  §  578 

presumes  that  a  delivery  of  a  deed  to  the  grantee  personally 
is  done  with  the  intention  of  passing  the  title,  there  is  no 
such  presumption  indulged  in  when  the  deed  is  handed  to  a 
stranger.  To  make  the  delivery  to  a  stranger  effectual,  the 
intention  with  which  the  delivery  was  made  must  be  expressed 
at  the  time.  There  are,  however,  no  formal  words  or  dec- 
larations required. ^^  But  where  the  deed  was  mailed  at  the 
request  of  the  grantee,  the  deposit  in  the  post-office  was  held 
to  be  a  good  delivery.^*  The  knowledge  and  assent  of  the 
grantee  are  just  as  necessary  in  this  mode  of  delivery  as  in 
the  delivery  or  tender  of  the  deed  to  the  grantee  himself,  and 
until  acceptance,  expressed  or  presumed,  the  delivery  is  in- 
operative to  pass  the  title.^®  It  has  been  held  that  a  deed  is 
revocable  by  the  grantor  after  delivery  until  it  is  accepted 
by  the  grantee.^"  Delivery  and  acceptance  are  ''mutual  and 
concurrent  acts,"  and  unless  the  delivery  is  an  open  and  con- 
tinuing one  an  acceptance  at  a  subsequent  period  will  not  give 
validity  to  the  deed.'^  But  the  subsequent  assent  will  be 
good,  although  the  grantor  may  have  died  in  the  meantime.^^ 

delivery  of  a  deed  by  the  grantor  to  a  third  person,  wliich  was  not 
made  with  intention  to  part  with  the  right  to  recall  the  deed,  was  in- 
sufficient to  pass  title."  Spacy  v.  Bitter  (111.  1905),  73  N.  E.  Rep. 
447,  214  111.  266. 

27  Church  V.  Gilman,  15  Wend.  656;  Tibbals  v.  Jacobs,  31  Conn.  428; 
Folk  V.  Varn,  9  Rich.  Eq.  303;  Cecil  V.  Beaver,  28  Iowa  240.  See  Lutes 
V.  Reed,  138  Pa.  St.  191. 

28  McKinney  V.  Rhoades,  5  Watts  343. 

2»  Young  V.  Guilbeau,  3  Wall.  636;  Jackson  v.  Bodle,  20  Johns.  184; 
Wilsey  v.  Dennis,  44  Barb.  359;  Bullitt  V.  Taylor,  34  Miss.  741;  Derry 
Bank  v.  Webster,  44  N.  H.  268 ;  Jackson  V.  Phipps,  12  Johns.  422 ;  Dike 
V.  Miller,  24  Texas  417;  Mitchell  v.  Ryan,  3  Ohio  St.  386;  Mills  f.  Gore, 
20  Pick.  28 ;  Stillwell  v.  Hubbard,  20  Wend.  44. 

30  Derry  Banjc  v.  Webster,  44  N.  H.  268 ;  Johnson  V.  Farley,  45  N.  H. 
509;  Owings  V.  Tucker  (Ky.),  13  S.  W.  Rep.  1078.  But  see,  where  deed 
is  for  the  grantee's  benefit,  as  to  presumption  of  his  acceptance.  Whit- 
taker  V.  Whittaker  (Mo.  1903),  74  S.  W.  Rep.  1029. 

31  Jackson  v.  Dunlap,  1  Johns.  Cas.  114;  Jackson  v.  Bodle,  20  Johns. 
187;  Church  v.  Gilman,  15  Wend.  656;  Canning  v.  Pinkham,  1  N.  H. 
353;  Buffum  v.  Green,  5  N.  T.  71;  Hulick  V.  Scovil,  9  111.  177. 

82  Hatch  V.  Hatch,  5  N.  H.  307;   O'Kelly  v.  O^Kelly,  8  Mete.  439; 

835 


§  578  REQUISITES  OF  A  DEED.  [PART  III. 

The  assent  of  the  grantee  need  not  always  be  proved  affirm- 
atively and  expressly.  It  may  in  certain  cases  be  presumed 
from  the  delivery.  If  the  grantee  was  aware  of  the  delivery 
for  his  use,  and  the  conveyance  was  beneficial  to  him,  his  as- 
sent may  be  presumed  from  the  time  of  delivery.^^  And  if  it 
is  questioned,  it  will  be  necessary  to  show  affirmatively  that 
the  grantee  was  in  esse,  in  order  to  support  the  presumption 
of  acceptance.^*  But  this  presumption  in  reference  to  the 
assent  of  the  grantee  is  only  prima  facie.  If  the  grantee  ac- 
tually dissents  or  refuses  to  receive  the  deed,  of  course  no  title 
passes.^"*  But  where  the  grantee  is  under  disabilities,  as  in 
the  case  of  infant  grantees,  and  perhaps  married  women,  the 
presumption  of  assent  to  a  beneficial  conveyance  becomes  a 
rule  of  law,  and  knowledge  of  the  conveyance  and  delivery  is 
not  essential.^®  The  relation  existing  between  the  person  re- 
ceiving the  deed  and  the  grantee  may  often  make  the  assent 
and  acceptance  of  the  deed  by  the  former  sufficient  to  give 
the  title  to  the  grantee.  For  example,  an  acceptance  by  the 
father  or  mother  of  a  deed  to  an  infant  child  is  a  good  ac- 

Stephens  v.  Huss,  54  Pa.  St.  26;  Mather  v.  Corless,  103  Mass.  568; 
McCalla  V.  Bayne,  45  Fed.  Rep.  828.  But  see  State  Bank  v.  Evans,  3 
Green  155;  Diefendorf  v.  Diefendorf,  8  N.  Y.  S.  617. 

33  Robinson  v.  Gould,  26  Iowa  93;  Cecil  V.  Beaver,  28  Iowa  241;  Gif- 
ford  V.  Corrigan,  117  N.  Y.  257,  22  N.  E.  Rep.  756;  Munoz  V.  Wilson, 
111  N.  Y.  295.  But  an  acceptance  will  not  be  presumed,  as  long  as 
the  grantee  is  ignorant  of  the  conveyance.  Maynard  v.  Maynard,  10 
Mass.  456;  Prestman  v.  Baker,  30  Wis.  644;  Baker  v.  Haskell,  47  N. 
H.  479;  Thompson  V.  Lloyd,  49  Pa.  St.  128;  Miller  v.  Murfield  (Iowa), 
44  N.  W.  Rep.  540;  McElroy  v.  Hiner  (111.),  24  N.  E.  Rep.  435.  See 
Whittaker  v.  Whittaker   (Mo.  1903),  74  S.  W.  Rep.  1029. 

34Hulick  V.  Scovil,  9  111.  177;  Walker  v.  Walker,  42  111.  311;  Bensley 
V.  Atwill,  12  Cal.  231. 

35Peavey  v.  Tilton,  18  N.  H.   152;  Townson  V.  Tickell,  3  B.  &  Aid. 

•  36;  Younge  V.  Guilbeau,  3  Wall.  641;  Tompkins  v.  Wheeler,   16   Pet. 

119;  Read  v.  Robinson,  6  Watts  &  S.  329;  Fonda  v.  Sage,  46  Barb.  109; 

St.  Louis  I.  M.  &  S.  R.  R.  Co.  v.  Ruddell    (Ark.),  13  S.  W.  Rep.  418; 

Dikeman  V.  Arnold   (Mich.),  44  N.  W.  Rep.  407. 

86  Baker  v.  Haskell,  47  N.  H.  479;   Spencer  V.  Carr,  45  N.  Y.  410; 
Gregory  v.  Walker,  38  Ala.  26;  Rivard  V.  Walker,  39  111.  413;  Cecil  v. 
Beaver,  28  Iowa  241;  Diefendorf  v.  Diefendorf,  8  N.  Y.  S.  617. 
836 


CH.    XXIII.]  REQUISITES   OF   A   DEED.*  §    579 

ceptance.'^  And  on  the  same  ground  at  common  law,  a  con- 
veyance to  a  married  woman  was  void,  if  her  husband  dis- 
sented. But  his  assent  is  binding  upon  her  even  after  his 
death.'* 

§  579.  Escrows. —  Although  the  delivery  of  the  deed  will 
pass  the  title,  if  such  is  the  intention  of  the  grantor,  and 
such  intention  will  be  presumed  in  the  absence  of  anything 
to  the  contrary,  yet  there  may  be  a  conditional  delivery, 
conditioned  that  the  deed  shall  only  take  effect  upon  the 
happening  of  an  event  specified  at  the  time  of  delivery. 
Such  a  deed  is  called  an  escrow.  In  order  that  a  deed  may 
be  an  escrow,  it  must  be  delivered  to  a  stranger  to  hold  until 
the  condition  is  performed,  and  then  to  be  delivered  to  the 
grantee.  If  the  delivery  is  made  to  the  grantee,  it  will  be  an 
absolute  delivery,  whatever  conditions  may  be  annexed  there- 
to, and  the  title  will  immediately  pass  to  the  grantee.'"  But 
if  the  delivery  to  the  grantee  is  merely  for  the  purpose  of 
having  it  delivered  immediately  to  a  third  person  to  hold  as 
an  escrow,  the  delivery  to  the  grantee  will  not  vest  a  title  in 
him,  the  intent,  with  which  it  was  done,  controlling  its  effect.** 

37  Baker  r.  Haskell,  47  N.  H.  479 ;  Souverbye  V.  Arden,  1  Johns.  Ch. 
456;  Jaqiies  r.  Methodist  Church,  17  Johns.  577;  Gregory  v.  Walker, 
38  Ala.  27 ;  Rogers  v.  Carey,  47  Mo.  236 ;  Cloud  v.  Calhoun,  10  Rich.  Eq. 
362. 

38  Butlor  &  Baker's  Case,  3  Rep.  26 ;  Melvin  r.  Props.,  etc.,  16  Pick. 
167;   Foley  V.  Howard,  8  Clarke    (Iowa  36;  Diefendorf  v.  Diefendorf,  8, 
N.  Y.  S.  617. 

89  Fairbanks  v.  Metcalf,  8  Mass.  230;  Ward  v.  Lewis,  4  Pick.  520; 
Gilbert  v.  N.  A.  F.  Ins.  Co.,  23  Wend.  43;  Black  v.  Shreve,  13  N.  J.  458; 
Foley  r.  Cowgill,  5  Blackf.  18;  Jane  f.  Gregory,  42  HI.  416;  Herdman  v.. 
Bratten,  2  Harr.  396;  Fireman's  Ins.  Co.  v.  McMillan,  29  Ala.  160.  But 
see  Bibb  r.  Rcid.  3  Ala.  88;  Stevenson  v.  Crapnell,  114  111.  19.  "A 
delivery  of  a  deed  to  one  of  several  grantees,  to  hold  the  same  for  her- 
self and  the  others,  with  the  knowledge  and  consent  of  the  latter,  is  a 
delivery  to  all."  Webb  v.  Webb  (Iowa  1905),  104  N.  W.  Rep.  438. 
See  also,  Kirkwood  V.  Smith,  212  111.  395,  72  N.  E.  Rep.  427. 

40  Murray  V.  Stair,  2  B.  &  C.  82;  Jackson  v.  Sheldon,  22  Me.  569; 
Gilbert  v.  N.  A.  Fire  Ins.  Co.,  23  Wend.  43;  Simonton's  Estate,  4  Watts 

837 


§  579  •   REQUISITES  OP  A  DEED.         [PART  III. 

"Where  the  deed  is  delivered  to  a  stranger  for  the  grantee, 
whether  it  shall  operate  as  a  present  deed,  or  as  an  escrow, 
depends  upon  the  intention  of  the  parties,  as  expressed  at 
the  time  of  the  delivery.  If  the  deed  is  handed  to  the 
stranger  with  the  ipstruction  that  the  delivery  to  the  grantee 
shall  depend  upon  the  happening  of  a  condition,  it  is  an 
escrow;  but  if  the  delivery  is  made  to  the  stranger,  although 
accompanied  by  instructions  that  it  shall  not  be  delivered 
until  the  death  of  the  grantor,  it  is  a  grant  in  prcesenti.*^ 
The  importance  of  distinguishing  escrows  from  other  deeds 
like  those  above  described  lies  in  this  fact:  escrows  can  operate 
only  from  the  time  that  the  condition  is  performed.  A  de- 
livery before  the  performance  of  the  condition  will  not  have 
the  effect  of  passing  the  title  to  the  grantee,  not  even  against 
innocent  purchasers  for  value  of  the  grantee.*-  But  if  the 
deed  is  one  operating  immediately,  even  though  the  bailee  of 
the  deed  is  instructed  not  to  deliver  it  before  the  grantor's 
death,  it  passes  the  title  immediately,  and  a  delivery  before 
the  grantor's  death  will  be  good.  Indeed,  it  does  not  seem 
that  any  formal  delivery  to  the  grantee  is  required.*^     For 

180;  Den  v.  Partee,  2  Dev.  &  B.  530.  But  see  Fairbanks  V.  Metcalf,  8 
Mass.  239;  Braman  r.  Bingham,  26  N.  Y.  483. 

41  Foster  v.  Mansfield.  3  Mete.  414;  Cook  v.  Brown,  34  N.  H.  465; 
Tooley  V.  Dibble,  2  Hill  641;  Braman  v.  Bingham,  26  N.  Y.  483; 
Hathaway  v.  Payne,  34  N.  Y.  106;  Price  v.  P.,  Ft.  W.  &  C.  R.  R.,  34 
111.  13. 

42  Fairbanks  v.  Metcalf,  8  Mass.  230;  Hinman  V.  Booth,  21  Wend. 
267;  Black  v.  Shreve,  13  N.  J.  458;  Jackson  v.  Sheldon,  22  Me.  569; 
Illinois  Cent.  R.  R.  v.  McCullaugh,  59  111.  170;  Chipman  v.  Tucker,  38 
Wis.  43,  20  Am.  Rep.  1;  Chicago,  etc.,  R.  R.  Land  Co.,  v.  Peck,  112  III. 
400.  In  Rhodes  V.  Gardiner,  30  Me.  110,  it  was  held  that  sufficient  title 
passed  by  such  an  authorized  delivery  to  give  a  good  title  to  an  inno- 
cent purchaser  from  the  grantee.  But  see  Houston  L.  &  T.  Co.  v.  Hub- 
bard (Texas  1905),  85  S.  W.  Rep.  474;  Sutton  r.  Gibson  (Ky.),  84 
S.  W.  Rep.  335;  Wisconsin  Ry.  Co.  v.  McKenna  (Mich.  1905),  102  N. 
W.  Rep.  281. 

43  Murray  v.  Stair,  2  B.  &  C.  82;  Shaw  v.  Hayward,  7  Cush.  175; 
Mather  v.  Corless,  103  Mass.  568;  Braman  V.  Bingham,  26  N.  Y.  483; 
Hathaway  v.  Payne,  34  N.  Y.  106;  Price  v.  P.,  Ft.  W.  &  C.  R.  R.,  34 

838 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    579 

this  reason  it  is  always  necessary  in  delivering  a  deed  as  an 
escrow  to  be  explicit  as  to  the  intent  with  which  the  delivery 
was  made,  and  it  would  be  much  more  prudent  if  the  delivery 
is  accompanied  by  a  memorandum  in  writing,  explaining  the 
character  of  the  delivery  to  the  bailee,  and  the  terms  of  the 
condition  upon  which  the  delivery  to  the  grantee  depends. 
No  technical  or  formal  language  is  required,  provided  the  in- 
tention is  made  clear  by  the  use  of  any  other  language.^*  In 
an  escrow  no  title  vests  in  the  grantee  until  the  second  deliv- 
ery.*°  But  though  the  deed  after  the  first  delivery  can  only 
be  revoked  by  the  grantor,  for  default  in  the  performance  of 
the  condition,*^  the  premises  so  far  continue  to  be  the  property 
of  the  grantor  that  they  can  be  levied  upon  by  the  grantor's 
creditors,  and  their  attachments  will  take  precedence  to  the 
title  acquired  by  the  grantee.*^  But  notwithstanding  the  deed 
does  not  take  effect  until  the  second  delivery,  yet  for  many 
purposes,  after  the  second  delivery,  the  deed  relates  back  to 
the  first  delivery,  and  takes  effect  nunc  pro  tunc.  This  is  the 
case  when  the  doctrine  of  relation  is  necessary  on  account  of 
some  intervening  obstacle  which  would  otherwise  invalidate 
the  deed,  as  where  the  grantor  dies  before  the  second  de- 
livery.** 


111.  13;  Goodpaster  v.  Leathers  (Ind.),  2.3  N.  E.  Rep.  1090.  See  Kirk- 
^ood  V.  Smith,  212  111.  395,  72  N,  E.  Rep.  427. 

<*  Jackson  V.  Catlin,  2  Johns.  248;  Clark  v.  Gifford,  10  Wend.  310; 
Gilbert  v.  N.  A.  Fire  Ins.  Co.,  23  Wend.  43 ;  State  v.  Peck,  53  Mo.  293 ; 
White  V.  Bailey,  14  Conn.  271;  Shoenberger  v.  Hackman,  37  Pa.  St. 
87;  Millett  V.  Parker,  2  Mete.  (Ky.)  616. 

<5  Frost  V.  Beekman,  1  Johns.  Ch.  297 ;  James  v.  Vanderheyden,  1 
Paige  385;  Everts  v.  Agnes,  4  Wis.  351. 

*8Worrall  v.  Munn,  6  N.  Y.  229;  Millet  V.  Parker,  2  Mete.  (Ky.) 
608;  Wright  v.  Shelby  R.  R.,  16  B.  Mon.  4. 

*7  Frost  V.  Beekman,  1  Johns.  Ch.  297;  Jackson  r.  Catlin,  2  Johns. 
248;  Jackson  v.  Rowland,  6  Wend.  666.  See  Rutherford  v.  Carr  (Texas 
1905),  87  S.  W.  Rep.  815. 

♦8  Ruggles  V.  Lawson,  13  Johns.  285;  Jackson  f.  Rowland.  6  Wend. 
666;  Evans  v.  Gibbs,  6  Humph.  405;  Jackson  v.  Catlin,  2  Johns.  248 j 
Carr  v.  Hoxie,  5  Mason  60. 

839 


§  581  REQUISITES  OP  A  DEED.  [PART  III. 

§  580.  Regfistration  of  deeds  and  other  instrnments. —  Ex- 
cept in  respect  to  the  enrolhnent  of  deeds  of  bargain  and 
sale,  deeds  were  not  required  by  the  English  law  to  be  regis- 
tered or  recorded.  And  although  a  system  of  registration 
has  been  in  operation  since  the  reign  of  Queen  Anne  in  some 
of  the  counties  of  England,  no  general  registration  law  has 
ever  been  in  force  there.*®  But  in  the  United  States,  from 
an  early  period,  every  State  in  the  Union  has  had  a  general 
registration  law  and  officers  appointed  whose  duty  it  was  to 
record  all  deeds  of  conveyance,  and  other  written  instruments 
mentioned  in  the  statute.  The  object  of  recording  a  deed  is 
to  furnish  a  subsequent  purchaser  with  reliable  means  of  in- 
vestigating titles.  And  hence  it  must  be  recorded  in  the 
county  in  which  the  land  lies.''"  The  record  simply  furnishes 
evidence  of  the  conveyance,  and  the  law  provides  that  if  a 
deed  is  recorded,  the  record  is  constructive  notice  of  the  con- 
veyance, and  that  an  unrecorded  deed  shall  not  prevail  against 
subsequent  purchasers  without  notice.''^ 

§  581.  Requisites  of  a  proper  record. —  But  in  order  that 
the  record  may  be  constructive  notice  of  the  deed  and  its  con- 
tents, the  deed  must  be  a  valid  one,  and  possess  all  the  requi- 
sites of  a  valid  deed.  The  record  of  a  defective  deed  fur- 
nishes no  notice,  except  to  one  who  has  seen  it.  And  the  deed 
or  other  instrument  must  further  be  one  required  or  permitted 

4»3  Washburn  on  Real  Prop.  313;  Williams  on  Real  Prop.  466,  467. 

60  Oberholtzer's  Appeal,  124  Pa.  St.  583. 

ei  Earle  v.  Fiske,  103  Mass.  492;  Trull  v.  Bigelow,  16  Mass.  406; 
Stephens  v.  Morse,  47  N.  H.  433;  Murphy  v.  Nathans,  46  Pa.  St.  512; 
Van  Rensselaer  v.  Clark,  17  Wend.  25;  Jackson  v.  Leek,  19  Wend.  339; 
Wells  V.  Morrow,  38  Ala.  125;  Martin  r.  Quattlebaum,  3  McCord  205; 
Burkhalter  v.  Ector,  25  Ga.  55 ;  Lillard  V.  Rucker,  9  Yerg  64 ;  Dixon  v. 
Doe,  1  Smed.  &  M.  70;  Givan  v.  Doe,  7  Blackf.  210;  Applegate  v.  Gracy, 
9  Dana  224;  Hopping  v.  Burnham,  2  Greene  (Iowa)  39;  Fitzhugh  V. 
Barnard,  12  Mich.  110.  Registration  laws  are  not  intended  to  protect 
creditors,  but  to  give  notice  of  conveyances  of  real  estate  to  them,  as 
well  as  subsequent  grantees.     Ilfeld  v.  DeBoca,  79  Pac.  Rep.  723. 

840 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  V;    581 

by  law  to  be  recorded.^^  A  quit-claim  deed  is  sufficient  to 
give  the  grantee  priority  over  a  prior  unrecorded  deed.^^ 
And  a  subsequent  grantee,  who  takes  without  notice  of  the 
prior  unrecorded  deed,  can  claim  priority  over  such  prior 
conveyance,  although  his  own  deed  may  be  unrecorded.^* 

If  a  deed  has  been  properly  recorded,  in  most  of  the  States 
it  may  be  used  in  evidence  without  any  other  proof  of  its 
execution."'  And  in  some  of  them  a  certified  copy  of  the 
record  is  made  original  evidence  in  establishing  the  claim 
of  title  from  one  grantor  to  another."^.    But  in  other  of  the 

52  De  Witt  V.  Moulton,  17  Me.  418;  Shaw  v.  Poor,  6  Pick.  88;  Blood 
V.  Blood,  23  Pick.  80;  McKeen  v.  Mitchell,  35  Pa.  St.  269;  Harper 
V.  Barsh,  10  Rich.  Eq.  149;  Harper  v.  Tapley,  35  Miss.  510;  Pringle 
V.  Dunn,  37  Wis.  449,  19  Am.  Rep.  772;  Sands  v.  Beardsley,  32  W. 
Va.  594;  Brown  V.  Lunt,  37  Me.  423;  Stevens  V.  Morse,  47  N.  H.  532; 
Blood  V.  Blood,  23  Pick.  80;  Hodgson  V.  Butts,  3  Cranch  140;  Shults 
V.  Moore,  McLean  521;  Harper  v.  Reno,  1  Freem.  Ch.  323;  Parkist  U- 
Alexander,  1  Johns.  Ch.  394;  Green  V.  Drinker,  7  W.  &  S.  440;  Heist- 
ner  v.  Fortner,  2  Binn.  40;  Strong  v.  Smith,  3  McLean  362;  Cockejr 
V.  Milne,  16  Md.  200.  In  Musgrove  V.  Bouser  (5  Oreg.  313,  20  Am. 
Rep.  737),  the  Supreme  Court  of  Oregon  held  that  the  record  of  a 
deed,  not  properly  admitted  to  record,  furnishes  constructive  notice  of 
the  contents  of  the  deed  to  all  who  have  actually  seen  the  record.  See^ 
also,  to  same  effect.  Kerns  V.  Swope,  2  Watts  75;  Hastings  v.  Cutler^ 
4  Fost.  481.  It  is  also  a  general  rule  that  the  record  must  be  properly- 
made,  in  order  to  raise  constructive  notice  to  subsequent  purchasers ; 
and  it  has  been  held  in  Wisconsin,  though  denied  in  Missouri  and 
Pennsylvania,  that  a  record  without  an  index  furnishes  no  notice. 
Pringle  v.  Dunn,  37  Wis.  449,  19  Am.  Rep.  772;  Bishop  v.  Schneider^ 
46  Mo.  472,  2, Am.  Rep.  553;  Schell  v.  Stein,  76  Pa.  St.  398,  18  Am. 
Rep.  416. 

03  Cutler  V.  James,  64  Wis.  173,  54  Am.  Rep.  603. 

84  Edwards  v.  Thom,  25  Fla.  222. 

85Younge  t;.  Guilbeau,  3  Wall.  640;  Houghton  v.  Jones,  1  Wall.  702,-: 
Carpenter  v.  Dexter,  8  Wall.  532;  Samuels  V.  Borrowscale,  104  Mass. 
207;  Young  V.  Ringo,  1  B.  Mon.  30;  Fell  v.  Young,  03  III.  106; 
Hinchliffe  v.  Hinman,  18  Wis.  135;  Toulmin  v.  Austin,  5  Stew.  &  P. 
410. 

8«  Scanlan  v.  Wright,  Samuels  v.  Borrowscale,  104  Mass.  207 ;  Farrar 
V.  Fessenden,  39  N.  H.  268;  Dixon  V.  Doe,  5  Blackf.  106;  Bogan  v. 
Frisby,  36  Miss.  178;  Clague  v.  Washburn,  42  Minn.  371,  44  N,  W.  Rep- 
130. 

841 


§  582  REQUISITES  OP  A  DEED.  [PAKT  III. 

States  the  deed  must  be  proved  as  at  common  law,  unless  it 
comes  under  the  head  of  ancient  deeds,  i.  e.,  deeds  thirty 
years  old."*^ 

§  682.  To  whom  is  record  constructive  notice. —  This  record 
is  constructive  notice  to  only  subsequent  purchasers  claiming 
Tinder  the  grantor,  i.  e.,  those  who  acquire  an  interest  in  the 
property  subsequently,  and  as  privy  to  the  grantor,  whether 
as  grantee,  mortgagee,  or  attaching  creditor.''*  It  is  not  no- 
tice to  those  who  claim  independently  of  the  grantor,^"  as, 
for  example,  where  a  mortgagee  assigns  the  mortgage.  The 
record  of  the  assignment  is  not  constructive  notice  to  the 
mortgagor  or  his  assignees.®"  So,  also,  is  the  mortgagee  or 
his  assignee  not  charged  with  constructive  notice  by  the  record 
of  the  mortgagor's  assignment.®^  The  same  rule  applies  in 
general  to  those  who  acquire  their  interests  from  the  grantor 

57  See  Woolfolk  V.  Graniteville  Mfg.  Co.,  22  S.  C.  332. 

ssTilton  f.  Hunter,  24  Me.  35;  Shaw  v.  Poor,  6  Pick.  85;  Bates  r. 
Norcross,  14  Pick.  224;  Doe  v.  Beardsley,  2  McLean  412;  Losey  v. 
Simpson,  3  Stockt.  Ch.  246;  Ely  V.  Wilcox,  20  Wis.  530;  Traphagen  t\ 
Irwin,  18  Neb.  195.     See  Ilfeld  v.  DeBoca,  79  Pac.  Eep.  723. 

50  Blake  v.  Graham,  6  Ohio  St.  480;  Iglehart  v.  Crane,  42  111.  261; 
Baker  f.  Griffin,  50  Miss.  158;  Bates  v.  Norcross,  14  Pick.  224;  George 
r.  Wood,  9  Allen  80;  Murray  V.  Ballou,  1  Johns.  Ch.  566;  Page  t'. 
Waring,  76  N.  Y.  463;  Lightner  V.  Mooney,  10  Watts  412;  Losey  v. 
Simpson  v.  Stockt.  Ch.  246;  Farmers'  L.  &  T.  Co.  v.  Maltby,  8  Paige 
361;  Calder  v.  Chapman,  52  Pa.  St.  (2  P.  F.  Sm.)  359;  Wood  v. 
Farmere,  7  Watts  282. 

80  Jones  V.  Gibbons,  9  Ves.  410;  Mitchell  v.  Burnha«n,  44  Me.  302; 
James  v.  Johnson,  6  Johns.  Ch.  417;  Ely  v.  Schofield,  35  Barb.  330;  Bel- 
den  V.  Meeker,  47  N.  Y.  307;  Titus  v.  Haynes,  9  N.  Y.  S.  742;  Castle 
V.  Castle  (Mich.),  44  N.  W.  Rep.  378.  In  some  of  the  States,, notably 
California,  Indiana,  Kansas,  Michigan,  Minnesota,  Nebraska.  New 
York,  Oregon,  Wisconsin  and  Maryland,  the  same  rule  is  established  by 
statute.  Jones  on  Mort..  Sec.  473;  2  Washburn  on  Real  Prop.  148. 
See  Watson  r.  Dundee  Mortgage,  etc.,  Co.,  12  Ore.  474.  And  see  Sec. 
579. 

814  Kent's  Com.   174;   Stuyvesant  v.  Hall,  2  Barb.  Ch.    158;   Bell   r. 
Fleming,  12  N.  J.  Eq.  16;  Blair  v.  Ward,  10  N.  J.  Eq.   126;  Groesbeck 
f.  Mattison,  43  Minn.  547;  Clark  v.  McNeal,  114  N.  Y.  287;  First  Nat, 
Bank  f.  Honeyman  (Dakota),  42  N.  W.  Rep.  771.     See  Sec.  579. 
842 


CH.    XXIII.]  REQUISITES   OF   A   DEED.  §    582 

by  a  prior  deed."-  It  has  also  been  held  that  the  doctrine  of 
constructive  notice  from  record  of  a  deed  does  not  apply 
where  A. 's  deed  to  B.  is  unrecorded  and  B.  then  conveys  to 
C,  who  puts  his  deed  upon  record,  without  notice  of  the  fact 
that  B.,  the  grantor,  has  derived  his  title  from  A.  It  is  held 
that  a  subsequent  purchaser  is  not  charged  with  constructive 
notice  of  the  prior  recorded  deed  from  B.  to  C."^  But  it  is 
a  doubtful  question  whether  the  registration  of  the  prior  deed, 
before  the  title  has  been  acquired  by  the  grantor  and  re- 
corded, would  properly  be  considered  constructive  notice  of 
the  estoppel,  whereby  the  after-acquired  title  would  inure  to 
the  prior  grantee  even  as  against  a  subsequent  purchaser 
without  actual  notice.  It  is  certainly  in  violation  of  the  spirit 
of  the  registration  laws,  which  only  require  the  investigator 
to  search  the  records  for  any  incumbrance  or  conveyance 
which  occurs  between  the  time  when  the  grantor  acquired  the 
title,  and  the  time  when  he  offers  the  title  for  conveyance.** 

It  has  been  held  by  some  of  the  courts  that  a  purchaser 
from  the  heir  cannot  claim  precedence  for  his  recorded  deed 
over  the  unrecorded  deed  of  the  ancestor,  on  the  ground  that 

«2  George  v.  Wood,  9  Allen  80;  Losey  v.  Simpson,  3  Stockt.  Ch.  246; 
Holley  V.  Hawley,  39  Vt.  532;  Boone  V.  Clark,  129  111.  466;  2  Pom. 
Eq.  n,  142.  See  Maul  v.  Rider,  59  Pa.  St.  (9  P.  F.  Sm.)  106,  171; 
Birnie  v.  Main,  29  Ark.  591;  Ward's  Exr.  V.  Hague,  25  N.  J.  Eq.  (10 
C.  E.  Green)  397;  Guion  V.  Knapp,  6  Paige  42;  Hill  V.  McCarter,  27 
N.  J.  Eq.  41;  Doolittle  V.  Cook,  75  111.  355;  Deuster  V.  McCamus,  14 
Wis.  307;  Halsteads  v.  Bk.  of  Ky.,  4  J.  J.  Marsh.  558.  "A  vendee's 
title  is  not  divested  by  his  failure  to  record  his  deeds."  Gibson  v. 
Brown   (HI.  1905),  73  N.  E.  Rep.  578. 

«3Veazie  t\  Parker,  53  Me.  170;  Pierce  v.  Taylor,  23  Me.  246;  Fel- 
ton  f.  Pitman,  14  Ga.  530;  Roberts  v.  Bourne,  23  Me.  165;  Lightner  t'. 
Mooney,  10  Watts  407;  Calder  v.  Chapman,  52  Pa.  St.  353;  Chicago  v. 
Witt,  75  HI.  211. 

«<  Calder  v.  Chapman,  2  P.  F.  Smith  359;  McCusker  v.  McEvey,  10 
R.  I.  606,  the  dissenting  opinion  of  Judge  Potter;  Bright  v.  Buchman, 
39  Fed.  Rep.  243 ;  Pike  V.  Calvin,  29  Me.  183 ;  Jarvis  v.  Aikens,  25  Vt. 
635;  White  v.  Patten,  24  Pick.  324;  Tefft  v.  Munson,  57  N.  Y,  97; 
Doyle  V.  Peerless  Pet.  Co.,  44  Barb,  239;  Farmers  L.  &  T.  Co. 
V.  Maltby,  8  Paige  361.     But  see  Wilson  v.  Smith,  52  Hun  171. 

843 


§  582  REQUISITES  OP  A  DEED.  [PART  III. 

since  the  unrecorded  deed  was  a  good  conveyance  against  the 
heir,  nothing  descended  to  the  heir  which  he  could  convey.*" 
But  the  better  opinion  seems  to  be  that  the  deed  from  the  heir 
in  such  a  case  would  be  entitled  to  priority,  and  would  vest 
the  superior  title  in  the  grantee  of  the  heir,  for  the  reason  that 
the  registry  laws  declare  a  deed  void  against  all  subsequent 
purchasers  without  notice  if  it  has  not  been  recorded."®  If 
one  has  a  recorded  deed  which  has  a  priority  over  an  ante- 
cedent unrecorded  deed,  the  holder  of  the  recorded  deed  ac- 
quires an  absolute  paramount  title,  which  he  can  convey  even 
to  those  who  have  notice  of  the  prior  unrecorded  deed,®''  with 
the  exception  of  his  own  grantor,  who  originally  acquired  title 
with  notice  of  the  prior  unrecorded  deed.  Such  a  person  can- 
not improve  his  title  by  conveying  the  land  to  an  innocent 
purchaser,  and  repurchasing  it,  relying  upon  the  superior 
title  of  the  intermediate  grantee.'®  And  if  the  recorded  deed 
is  to  one  who  has  notice  of  the  prior  deed,  although  in  his 
hands  the  recorded  deed  does  not  have  precedence,®^  if  he 
conveys  to  one  having  no  notice,  his  grantee  acquires  a  good 
title.  But  if  the  prior  deed  is  recorded  before  the  conveyance 
by  the  first  grantee  who  has  had  notice,  the  grantee  of  the 
second  conveyance  is  bound  by  the  constructive  notice.'^"  But 
no  one  can  take  advantage  of  the  record  for  the  purpose  of 

«5Hill  V.  Meeker,  24  Conn.  211;  Hancock  v.  Beverly,  6  B.  Mon.  532; 
Harlan  v.  Seaton,  18  B.  Mon.  312. 

60  Earle  v.  Fiske,  103  Mass.  491 ;  Powers  r.  McFerron,  2  Serg.  &  R. 
47;  McCullough  v.  Endaly,  3  Yerg.  346;  Youngblood  v.  Vastine,  46  Mo. 
239;  Kennedy  f.  Nortrup,  15  111.  148. 

67Lowther  v.  Carlton,  2  Atk.  133;  Trull  v.  Bigelow,  15  Mass.  406; 
Biimpus  V.  Platner,  1  Johns.  Ch.  219;  Bell  v.  Twilight,  18  N.  H.  159. 

68  Clark  V.  McNeal,  114  N.  Y.  287. 

69  Cox  V.  Wayne,  26  W.  Va,  807. 

TOFlynt  V.  Arnold,  2  Mete.  619;  Trull  v.  Bigelow,  16  Mass.  406; 
Adams  V.  Cuddy,  13  Pick.  460;  Brackett  v.  Ridlon,  54  Me.  4.34;  Hag- 
thorpe  V.  Hook,  1  Gill  &  J.  270;  Baylis  v.  Young,  51  111.  127.  "An 
unrecorded  deed  may  be  good  as  to  the  parties  thereto  and  as  to  those 
who  have  notice  thereof."  Licata  v.  De  Corte  (Fla.  1905),  39  So. 
Rep.  58. 

844 


CH.    XXIII.]  REQUISITES   OP   A   DEED.  §    583 

giving  his  deed  priority  over  another  unrecorded  deed,  who 
has  not  paid  a  substantial  valuable  consideration  therefor, 
and  he  must  show  by  extraneous  evidence  that  it  has  been 
paid.'^  * 

§  583.  Priority  of  unrecorded  mortgages  over  judgement 
creditors. —  It  is  also  claimed  by  many  of  the  authorities,  that 
an  unrecorded  mortgage  or  conveyance  will  have  priority  ovBr 
the  subsequently  docketed  judgment,  although  the  judgment 
is  obtained  and  docketed  without  notice  of  the  prior  convey- 
ance or  mortgage,  on  the  ground  that  the  lien  of  the  judgment 
on  the  property  is  acquired  by  the  judgment  creditor  without 
any  consideration  and  that  the  assertion  of  the  prior  unre- 
corded mortgage  or  conveyance  against  such  subsequently 
docketed  judgment  would  not  give  to  the  judgment  creditor 
any  claim  of  being  injured,  for  be  has  parted  with  nothing 
in  securing  the  judgment  lien  in  reliance  upon  the  apparently 
valid  title  of  the  judgment  debtor.  The  equitable  doctrine 
then  is  that  a  judgment  lien  will  cover  only  the  actual  interest 
of  the  judgment  debtor,  and  attaches  to  such  interest  subject 
to  all  the  prior  equitable  claims  against  such  interest.^'    This 

71  Boone  v.  Chiles,  10  Pet.  211;  Watkins?  v.  Edwards,  23  Texas  447; 
Parker  v.  Foy,  43  Miss.  260;  Maupin  v.  Emmons,  47  Mo.  304;  Bishop 
V.  Schneider,  46  Mo.  472,  2  Am.  Eep.  533;  Shotwell  V.  Harrison,  22 
Mich.  410;  Cox  v.  Voght,  26  W.  Va.  807. 

72Bartley,  J.,  in  White  v.  Denman,  1  Ohio  St.  110,  112;  Finney  v. 
Earl  of  Winchelsea,  1  P.  Wms.  277;  Legard  v.  Hodges,  1  Ves.  477; 
Burn  V.  Burn,  3  Ves.  573,  582;  Lodge  v.  Tyseley,  4  Sim.  70;  Beavan  V. 
Earl  of  Oxford,  6  De.  M.  &  G.  507,  517,  518;  Newlands  v.  Paynter, 
4  My.  &  Cr,  408;  Langton  v.  Horton,  1  Hare  549;  Everett  v  Stone, 
3  Story  446,  455 ;  In  re  Howe,  1  Paige  125 ;  Buchan  v.  Sumner,  2  Barb. 
Ch.  165,  207;  Hoagland  V.  Latourette,  1  Green's  Ch.  254;  Dunlap  v. 
Burnett,  5  Sm.  &  Mar.  702;  Bank  v.  Campbell,  2  Rich.  Eq.  179;  Cover 
V.  Black,  1  Barr,  493;  Shryock  v.  Waggoner,  4  Casey  430;  Richeson 
V.  Richeson,  2  Gratt.  497;  Bayley  v.  Greenleaf,  7  Wheat  46,  51;  Stevens 
V.  Watson,  Abb.  App.  Dec.  302;  Wheeler  v.  Kirtland,  24  N.  J.  Eq. 
(9  C.  E.  Green)  552;  Wilder  v.  Butterfield,  50  How.  Pr.  385;  Schroeder 
«,  Ourney,  73  N.  Y.  430;  Wilcoxson  v.  Miller,  49  Cal,  193;  First 
Nat.   Bk.  V.   Hayzlett,   40   Iowa    659;    Kelly  V.   Mills,   41    Miss;    267; 

845 


§  583  REQUISITES  OF  A  DEED.  [PART  III. 

rule,  however,  has  been  repudiated  by  the  courts  of  many  of 
the  States  in  which  it  is  held,  that  the  judgment  creditor  is 
entitled  to  priority  over  other  earlier  equitable  interests,  on 
the  ground  that  he  does  suffer  a  damage  of  a  legal  character 
in  consequence  of  the  recognition  of  the  priority  in  the  earlier 
equities  whenever  he  goes  to  the  trouble  and  expense  of  pro- 
curing the  judgment  lien,  and  is  induced  by  the  apparently 
unincumbered  condition  of  the  debtor 's  title  to  rely  upon  such 
judgment  lien.  In  accordance  with  this  principle  it  is  held 
in  these  States,  that  the  judgment  lien,  docketed  subsequently 
to  an  unrecorded  mortgage,  or  to  the  acquisition  of  some 
equitable  interest  or  lien,  shall  have  precedence  over  such 
prior  equity  or  interest ;  ''*  but  where  the  judgment  lien  is 
given  priority  over  the  earlier  equity,  the  claim  for  priority 
depends  upon  the  want  of  notice  of  the  prior  equity  when  the 
lien  was  acquired.  In  other  words,  if  when  the  judgment  lien 
was  acquired  and  the  judgment  docketed,  the  judgment  cred- 
itor knows  of  the  existence  of  the  earlier  equitable  claim 
against  the  property,  he  cannot  claim  for  his  judgment  lien 
any  precedence  over  the  prior  equity.'^*  "Where,  however,  the 
recording  laws  declare  that  a  judgment  lien  shall  have  prece- 
dence over  the  unrecorded  mortgage,  or  a  conveyance,  the 
statutory  provision  must  prevail,  giving  to  the  judgment  lien 

Righter  v.  Forrester,  1  Bush.  (Ky.)  278;  Morton  v.  Robards,  4  Dana 
258;  Orth  v.  Jennings,  8  Blackf.  420;  Hempton  v.  Levy,  1  McCord  Ch. 
107,  111;  Galway  v.  Mulchow,  7  Neb.  285;  Van  Thorniley  v.  Peters,  26 
Ohio  St.  471. 

'3Corpman  v.  Baccastow,  84  Pa.  St.  363;  King  v.  Portis,  77  N.  C. 
25;  Vat  Thorniley  v.  Peters,  26  Ohio  St.  471;  Guiteau  t?.  Wisely,  47 
111.  433;  Barker  V.  Bell,  37  Ala.  354;  Mainwaring  v.  Templeman,  41 
Texas  266;  Andrews  V.  Mathews,  59  Ga.  466;  Anderson  v.  Nagle,  12 
W.  Va.  98.  See  London  V.  Bymm  (N.  C.  1904),  48  S.  E.  Rep.  764; 
Owens  V.  Atlanta  T.  &  B.  Co.  (Ga.  1905),  50  S.  E.  Rep.  379;  Morris 
Supply  Co.  V.  McColgon  (Md,  1905),  60  Atl.  Rep.  608. 

74  Priest  V.  Rice,  1  Pick.  164;  Hart  v.  Farm.  &  Mech.  Bk.,  33  Vt. 
252;  O'Rourke  v.  O'Connor,  39  Cal.  442;  Britton's  Appeal,  9  Wright 
172 ;  Mellon's  Appeal,  8  Casey  121 ;  Lawrence  v.  Stratton,  6  Cush.  163, 
167;  Dixon  v.  Doe,  1  Sm.  &  Mar.  70;  Ayres  v.  Duprey,  27  Texas  593; 
Wyatfw.  Stewart,  34  Ala.  716,  721;  Garwood  v.  Garwood,  4  Halst.  193. 
846 


CH.   XXIII.]  REQUISITES   OF   A   DEED.  §    583 

priority  over  the  unrecorded  mortgage,  even  though  the  judg- 
ment creditor  knew  when  the  judgment  was  docketed  that 
such  unrecorded  mortgage  existed.^**  But  whether  in  any 
particular  State  the  judgment  lien  is  held  to  have  priority 
over  the  prior  equity  or  interest,  or  not,  if  the  judgment  lien 
should  be  enforced  by  execution,  and  the  property  sold  under 
such  execution  to  a  bona  fide  purchaser,  the  legal  title  in  such 
a  purchaser  would  be  taken  by  him  free  from  the  priority  of 
the  earlier  equity,  and  such  equities  could  not  be  enforced 
against  the  lien  in  the  hands  of  such  a  purchaser J^  Where, 
however,  the  purchaser  under  the  execution  of  the  judgment 
takes  the  land  with  notice  of  the  prior  equity,  and  the  judg- 
ment creditor  also  loses  his  precedence,  because  of  his  knowl- 
edge of  the  existence  of  the  prior  equity,  or  the  question 
arises  in  a  State  in  which  the  judgment  creditor  is  denied  all 
claim  of  priority  over  the'  earlier  equity,  such  a  purchaser 
cannot  claim  to  take  the  legal  title  from  the  earlier  equita- 
ble claim.^'^     But  if  the  question  arose  in  a  State  in  which  the 

'5  Guerrant  v.  Anderson,  4  Rand.  208 ;  Davidson  v.  Cowan,  1  Dev. 
Eq.  474;  Davey  V.  Littlejohn,  2  Ired.  Eq.  495;  Mayham  V.  Coombs,  14 
Ohio  428;  Butler  V.  Maury,  10  Humph.  420;  Lillard  V.  Ruckers,  9 
Yerg.  64.  See  Koston  v.  Storey  (80  Pac.  Rep.  217,  Or.  1905)  for  pri- 
ority of  judgment  over  grantee's  title  from  a  mortgagor,  after  redemp- 
tion from  a  prior  mortgage. 

76  Orth  V.  Jennings,  8  Blackf.  420 ;  Rodgers  v.  Gibson,  4  Yeates  111; 
Heister  v.  Fortner,  2  Binney  40;  Jackson  v.  Town,  4  Cow.  599;  Gov- 
erneur  v.  Titus,  6  Paige  347;  Den  v.  Richman,  1  Green  43;  Mann's 
Appeal,  1  Barr.  24;  Wilson  v.  Shoneberger,  10  Casey  121;  Ehle  v. 
Brown,  31  Wise  405,  414;  Rogers  V.  Hussey,  36  Iowa  664;  Ayres  v. 
Dubrey,  27  Texas  593,  605 ;  Gower  v.  Doheney,  33  Iowa  36,  39 ;  Wright 
V.  Douglass,  10  Barb.  97;  Sargent  v.  Sturm,  23  Cal.  359;  Orme  v.  Rob- 
erts, 32  Texas  768. 

77  Ells  V.  Tousley,  1   Paige  280;   Parka  v.  Jackson,   11  Wend.  442 
Siemon  v.  Schurck,  29  N.  Y.  598;  Bank  v.  Campbell,  2  Rich.  Eq.  179 
Churchill  v.  Morse,  23  Iowa  229;  O'Rourke  v.  O'Connor,  39  Cal.  442 
Byers  v.  Engles,  16  Ark.  543 ;  Ogden  v.  Haven,  24  111.  67 ;  Ayres  v.  Du- 
prey,  27  Texas  593.     "  Where  a  mortgage  is  older  than  a  judgment,  a 
sale  under  the  power  contained  therein  conveys  to  the  purchaser  a  title 
good  against  the  judgment  lien."     Williams  v.  J.  P.  Williams  Co.   (Ga. 
1905),  50  S.  E.  Rep.  52. 

847 


§  584  REQUISITES  OF  A  DEED.  [PART  lU, 

judgment  creditor  can  claim  for  his  lien,  priority  over  the 
equitable  interest  of  the  earlier  date,  because  he  does  not 
know  of  its  existence  when  the  judgment  lien  was  secured, 
then  this  priority  recognized  by  the  law  in  the  judgment 
creditor  in  favor  of  his  lien  passes  to  the  purchaser,  so  that 
the  purchaser  under  the  execution  on  the  judgment  can  claim 
priority  in  his  character  as  assignee  of  the  judgment  cred- 
itor, although  when  he  takes  the  deed  to  the  property  he 
knows  of  the  existence  of  the  prior  equitable  interest  or 
claim.'*  ' 

§  684.  Of  what  is  record  eonstmctive  notice. —  Not  only  is 
the  record  constructive  notice  of  the  recorded  deed  and  its 
•contents,  but  it  will  also  be  notice  of  all  other  deeds  and  their 
contents,  to  which  reference  is  made  in  the  recorded  deed.^" 
But  it  has  been  held  that  the  record  of  a  deed  which  describes 
the  subject  of  the  grant  in  very  general  terms,  as,  for  exam- 
ple, "all  the  lands  the  grantor  owns  in  Louisiana,"  does  not 
furnish  constructive  notice  of  any  particular  tract.*"  The 
record  is  constructive  notice  of  the  contents  of  deeds  only  as 
they  appear  upon  the  record.  A  mistake  of  the  register  in 
the  description  of  the  property,  or  the  amount  of  the  mort- 
gage, will  fall  upon  the  holder  of  the  deed.®^     Such  would  also 

78jaques  v.  Weeks,  7  Watts  261,  270;  Uhlcr  V.  Hutchinson,  23  Pa. 
St.  (11  Harris),  110;  Calder  v.  Chapman,  52  Pa.  St.  (2  P.  F.  Sm.) 
359,  362;  Massey  V.  Westcott,  40  111.  160;  Henderson  V.  Downing,  23 
Miss.  105;  Fash  v.  Ravesies,  32  Ala.  451;  De  Venbell  V.  Hamilton,  27 
Id.  156;  Pollard  v.  Cocke,  19  Id.  188;  Smith  v.  Jordan,  25  Ga.  687. 

79  White  V.  Foster,  102  Mass.  375;  Acer  V.  Westcott,  46  N.  Y.  384; 
•Cambridge  Valley  Bank  r.  Delano,  48  N.  Y.  326;  Hamilton  V.  Nutt,  34 
•Conn.  501;  Baker  v.  Matcher,  25  Mich.  53;  Hetherington  V.  Clark,  30 
Pa.  St.  393;  Morris  v.  Wadsworth,  17  Wend.  103;  Humphreys  V.  New- 
man, 51  Me.  40;  Tripe  v.  Marcy,  39  N.  H.  439;  Leach  v.  Beattie,  33 
Vt.  195 ;  Buchanan  v.  International  Bank,  78  111.  500 ;  Montefiore  V. 
Browne,  7  H.  L.  Cas.  241 ;  Viele  v.  Judson,  82  N.  Y.  32. 

80  Greene  v.  Witherspoon,  37  La.  An.  751. 

81  Frost  V.  Beekman,  1  Johns.  Ch.  299 ;  Beekman  v.  Frost,  18  Johns. 
544.     See  ante,  Sec.   338;   Jennings  v.  Wood,  20  Ohio  261;   Wyatt  v. 

848 


CH.    XXm.]  REQUISITES   OF   A   DEED.  §    584 

be  the  case  where  a  deed  absolute  on  its  face  was  recorded 
without  a  defeasance  and  such  deed  was  intended  to  operate 
as  a  mortgage.  A  purchaser  from  such  mortgagee  would  not 
be  charged  with  notice  of  any  other  title  than  that  of  an  abso- 
lute owner.^^  The  same  rule  applies  where  an  absolute  con- 
veyance is  made  to  one  who  was  intended  to  take  title  as  trus- 
tee for  another.*^  And  in  some  States  a  failure  to  index  the 
deed  will  deprive  the  record  of  the  constructive  notice.^*  But 
the  absence  in  the  record  of  some  material  part  of  the  deed  is 
not  conclusive  proof  of  the  fact  that  the  defect  appears  in 
the  original.^^ 

It  is  also  a  requisite  of  registration,  in  order  to  raise  con- 
structive notice  to  a  purchaser,  that  the  deed  be  recorded  in 
the  county  and  State  in  which  the  land  conveyed  lies.^^  So 
also  will  the  record  be  defective  where  a  mistake  is  made  as  to 
the  books  in  which  the  instrument  is  recorded,  as  where  a 

Barwell,  19  Ves.  439;  Beekman  v.  Frost,  18  Johns.  544;  Tarrell  v.  An- 
drews Co.,  44  Mo.  309;  Jennings  V.  Wood,  20  Ohio  261. 

82  Jacques  V.  Weeks,  7  Watts  261,  271;  Orvis  r.  Newell,  17  Conn.  97; 
Bailey  v.  Myrick,  50  Me.  171;  Brown  v.  Dean,  3  Wend.  208;  James  V. 
Morey,  2  Cow.  246;  Dey  v.  Dunham,  2  Johns.  Ch.  182;  Freidley  v. 
Hamilton,  17  Serg.  &  R.  70;  Jaques  v.  Weeks,  7  Watts  261,  287;  Ed- 
wards V.  Trumbull,  1.4  Wright  509;  Hendrickson's  Appeal,  12  Harris 
363;  Cogan  v.  Cook,  22  Minn.  137. 

83Flynt  V.  Arnold,  2  Mete.  619;  Mahoney  v.  Middleton,  41  Cal.  41, 
50;  Fallas  V.  Pierce,  30  Wis.  443;  Sims  V.  Hammond,  33  Iowa  368;  Van 
Rensselaer  V.  Clark,  17  Wend.  25.  See  also  post,  Sec.  761 ;  Crane  r. 
Turner,  6  Hun  357,  67  N.  Y.  437;  Digman  v.  McCollum,  47  Mo.  372, 
375,  376;  Farmer's  Loan  Co,  v.  Maltby,  8  Paige  361;  Page  v.  Waring, 
76  N.  Y.  463,  407-469;  Calder  v.  Chapman,  52  Pa.  St.  (2  P.  F.  Sm.) 
359;  Losey  V.  Simpson,  3  Stackt.  Ch.  246. 

8*  Pringle  V.  Dunn,  37  Wis.  449,  19  Am.  Rep.  772 ;  Barney  v.  Mc- 
Carty,  15  Iowa  522;  Whatley  v.  Small,  25  Iowa  188.  Contra,  Bishop  v. 
Schneider,  46  Mo.  472,  2  Am.  Rep.  533 ;  Schncll  V.  Stein,  76  Pa.  St.  398, 
18  Am.  Rep.  416;  Lane  v.  Duchac,  73  Wis.  646. 

85  Todd  V.  Union  Dime  Sav.  Bank,  118  N.  Y.  337,  23  N.  E.  Rep.  299. 

86  King  V.  Portis,  77  N.  C.  25;  Astor  v.  Wells,  4  Wheat.  466;  Lewis 
V.  Baird,  3  McLean  56;  Kerns  v.  Swope,  2  Watts  75;  Hundley  v.  Mount, 
8  Sm.  &  Mar.  387;  St.  John  f.  Conger,  40  111.  535;  Stewart  r.  Mc- 
Sweeney,  14  Wis.  468. 

M  849 


§  585  REQUISITES  OF  A  DEED.  [PART  III. 

mortgage  is  recorded  in  the  book  for  absolute  conveyances 
and  vice  versa.^'' 

§  585.  From  what  time  does  priority  take  effect. —  As  a  gen- 
eral proposition,  in  the  absence  of  special  rules,  the  priority 
acquired  by  the  registration  takes  effect  from  the  date  of  the 
record.®*  And  the  date  of  the  record  is  taken  at  the  time 
when  the  deed  was  deposited  for  registration.^®  But  in  some 
of  the  States  the  recording  law  provides  that  if  a  deed  is  re- 
corded within  the  time  allowed  by  law,  it  relates  back  to  the 
time  of  delivery  of  the  deed,  and  has  priority  over  a  subse- 
quently executed  deed  which  has  been  previously  recorded. 
Statutory  provisions  of  this  character  are  to  be  found  in  Ohio, 
Kentucky,  Mississippi,  Georgia,  South  Carolina,  Pennsylvania, 
Alabama,  Indiana,  Delaware,  Tennessee,  and  Maryland.®* 
The  time  allowed  for  recording  varies  with  the  different 
States.  If  in  these  States  a  deed  has  been  recorded  after  the 
expiration  of  the  time  allowed  by  law,  the  record  gives  con- 

87  Leech's  Appeal,  8  Wright,  140;  Calder  v.  Chapman,  52  Pa.  St.  (2 
P.  F.  Sm.)  359;  McLanahan  r.  Reeside,  9  Watts  508;  Colomer  i'.  Mor- 
gan, 13  La.  An.  202;  Grimstone  v.  Carter,  3  Paige  421;  Viele  r.  Jud- 
8on,  82  N.  Y.  32;  Mut.  Life  Ins.  Co.  v.  Dake,  1  Abb.  N.  C.  381;  Throck- 
morton r.  Price,  28  Texas  605;  Green  r.  Garritigton,  16  Ohio  St.  548. 
But  see  contra,  Speer  v.  Evans,  47  Pa.  St.  141,  per  Woodward.  J.;  Prin- 
gle  V.  Dunn,  37  Wis.  449,  460,  461;  Van  Throniley  v.  Peters,  26  Ohio 
St.  471. 

88  4  Kent's  Com.  457;  Gushing  v.  Hurd,  4  Pick.  252;  Goodsell  V. 
Sullivan,  40  Conn.  83;  Robinson  v.  Willoughby,  70  N.  C.  658;  Flem- 
ing V.  Burgin,  2  Ired.  Eq.  584;  Leggett  v.  Bullock,  Busb.  L.  283;  Rood 
V.  Chapin,  Walk.  Ch.  79;  Westbrook  v.  Gleason,  79  N.  Y.  23,  and  cases 
cited;  Dickenson  v.  Glenney,  27  Conn.  104;  Patten  v.  Moore,  22  N.  H. 
382,  384;  Dacoway  V.  Gait,  20  Ark.  190;  Senter  v.  Turner,  10  Iowa 
517;  Forepaugh  v.  Appoid,  17  Mon.  625,  631;  Porter  v.  Sevey,  43  Me. 
515. 

89 Den  V.  Richmond,  1  Green  (N.  J.)  52;  Gill  v.  Fauntleroy,  3  B. 
Mon.  177;  Lane  v.  Duchac,  73  Wis.  646;  Kessler  v.  State,  24  Ind.  315; 
Coffin  V.  Ray,  1  Mete.  212;  Thomas  V.  Blackemore,  5  Yerg.  113,  124; 
May  V.  McKeenon,  6  Humph.  209. 

80  3  Washburn  on  Real  Prop.  320,  321;  2  Pomeroy  Eq.  Jur.  86;  cases 
of  third  and  fourth  class. 
850 


CH.   XXra.]  REQUISITES  OP  A  DEED.  §    586 

structive  notice  from  the  time  of  the  record,  but  does  not 
relate  back  to  the  time  of  delivery.*^ 

§  586.  What  constitutes  sufficient  notice  of  title  —  Posses- 
sion.—  As  has  been  already  stated,  not  only  is  an  unrecorded 
deed  good  against  the  grantor,  his  heirs,  devisees  and  subse- 
quent voluntary  grantees,  but  it  is  also  good  against  sub- 
sequent purchasers  for  value,  if  they  are  charged  with  notice 
of  the  prior  deed.  In  order  to  bind  a  subsequent  purchaser 
with  notice,  he  must  have  actual  notice  of  the  deed,  or  knowl- 
edge of  such  facts  which  would  set  a  prudent  man  upon  his 
inquiry,  and  as  a  deduction  from  this  rule,  the  law  imputes 
to  a  purchaser  a  knowledge  of  every  fact  which  appears  upon 
the  muniments  of  title,  or  which  one  should  inquire  after  in 
the  investigation  of  the  title.^^  Thus,  a  deed  in  the  chain  of 
title  discovered  by  the  investigator  is  constructive  notice  of 
all  other  deeds  referred  to  in  the  deed  which  was  discovered."' 
And  the  notice  that  the  grantor  had  made  a  prior  deed  of  the 

91  McRaven  v.  McGiiire,  9  Smed.  &  M.  .39 ;  Ledger  v.  Doyle,  1 1  Rich. 
L.  109;  Anderson  v.  Dugas,  29  Ga.  440;  Lightner  v.  Mooney,  10  Watta 
407;  Belk  V.  Massey,  11  Rich.  L.  614;  Beem  v.  Lockhart,  93  N.  C.  191; 
King  V.  Fraser,  23  S.  C.  545;  Fleschner  v.  Siimpter,  12  Or.  161;  Hard- 
away  v.  Semmes,  24  Ga.  305;  Doe  v.  Bank  of  Cleveland,  3  McLean 
140;  Smith  v.  Smith,  13  Ohio  St.  5.32;  Williams  v.  Beard,  1  S.  C.  309; 
Strokes  v.  Hodges,  11  Rich.  Eq.  135;  Bank  of  State  v.  S.  C.  Man.  Co., 
3  Strobh.  190;  Tact  v.  Crawford,  1  McCord  265;  McClure  V.  Thistle's 
Exrs.,  2  Gratt.  182;  Rearsoner  v.  Edmundson,  5  Ind.  393;  Byles,  r. 
Tome,  39  Md.  461;  Hoffman  V.  Strohecker,  7  Watts  90;  Nice's  Appeal, 
54  Pa.  St.  200;  Britton'3  Appeal,  45  Pa.  St.  172;  Brooke's  Appeal,  64 
Pa.  St.  127;  Boggs  v.  Varner,  6  W.  &  S.  469;  Epley  v.  Withrow,  7 
Watts  167;  Randall  V.  Silverthorn,  4  Barr.  173;  Hetherington  v.  Clark, 
6  Casey  393;  Bellas  V.  McCarty,  10  Watts  13;  Phillips  v.  Bank  of 
Lewistown,  6  Harris  394;  Mott  v.  Clark,  9  Barr.  399;  Lightner  v. 
Mooney,  10  Watts,  407;  Huffman  v.  Strohecker,  7  Id.  86. 

»2  Mills  V.  Smith,  3  Wall.  33;  Jackson  v.  Livingston,  10  Johns.  374; 
Maupin  v.  Emmons,  47  Mo.  306;  Brush  v.  Ware,  15  Pet.  93;  Jumel  v. 
Jumel,  7  Paige  591;  Burch  v.  Carter,  44  Ala.  115;  Baltimore,  etc.,  V. 
White,  2  Gill  444;  Slattery  v.  Schwannecke,  118  N.  Y.  543;  Lee  v. 
Ogden,  83  Ga.  325,  10  S.  E.  Rep.  349. 

»»  Aeer  v.  Weatcott,  46  N.  Y.  384;  Cambridge  Valley  Bank  v.  Delano, 

851 


§  586  REQUISITES  OF  A  DEED.  [PART  III, 

same  land  is  sufficient,  although  the  purchaser  knew  nothing 
of  its  contents.**  Notice  to  a  general  agent  or  trustee  is  no- 
tice to  the  principal  or  cestui  que  trust,  if  it  is  given  to  such 
agent  or  trustee  while  he  is  engaged  in  the  performance  of  his 
duties  as  such.  It  is  not  notice  to  the  principal  or  cestui  que 
trust,  if  communicated  at  any  other  time."''  It  is  also  gen- 
erally held  in  the  United  States  that  possession  of  the  grantee 
under  a  prior  unrecorded  deed  is  constructive  notice  of  the 
title  under  which  he  claims.®*  But  in  some  of  the  States  it  is 
held  that  such  possession  is  not  to  be  considered  conclusive 
evidence  of  notice.  The  second  grantee  may  show  in  rebuttal 
that  he  made  a  diligent  but  unsuccessful  inquiry."*^  And  in 
order  that  possession  may  raise  a  constructive  notice  of  title, 
it  must  be  open,  notorious,  and  unequivocal.  A  joint  posses- 
sion with  the  grantor,  or  one  which  is  rendered  ambiguous 
from  any  other  cause,  will  not  be  sufficient.®* 

48  N.  Y.  326;  Hamilton  v.  Nutt,  34  Conn.  501;  Baker  v.  Matcher,  25 
Mich.  53. 

94Galland  v.  Jackman,  26  Cal.  87. 

95  Myers  v.  Ross,  3  Head  59;  Slatten  v.  Schwannecke,  118  N.  Y.  543; 
Shoemaker  v.  Smith  (Iowa),  45  N.  W.  Rep.  744;  Connell  v.  Connell,  32 
W.  Va.  319;  Bunker  v.  Gordon,  81  Me.  66;  Constant  v.  University  of 
Rochester,  111  N.  Y.  604;  Constant  V.  Am.  Baptist,  etc..  Society,  58 
N.  Y.  Super.  170. 

»6Lea  V.  Polk  Co.  Copper  Co.,  21  How.  493;  Helms  v.  May,  29  Ga. 
121;  Maupin  v.  Emmons,  47  Mo.  307;  Coleman  v.  Barklew,  3  Dutch. 
357;  Watrous  V.  Blair,  32  Iowa  63;  Berg  v.  Shipley,  1  Grant's  Cas, 
429;  Billington  v.  Welsh,  5  Binn.  129;  McGlaughlin  v.  Holman  (Wash.), 
24  Pae.  Rep.  439;  Bassett  v.  Wood,  55  Hun  587;  Toland  v.  Corey 
Utah),  24  Pac.  Rep.  190;  Griffin  v.  Haskins,  22  111.  App.  264;  Phelan 
V.  Brady,  19  Abb.  N.  C.  289;  s.  c.  1  N.  Y.  S.  626;  Smith  v.  Gibson,  25 
Neb.  511;  Bright  v.  Buckman,  39  Fed.  Rep.  243. 

97  Pomroy  v.  Stevens,  11  Mete.  244;  Dooley  v.  Woloott,  4  Allen  406; 
Mara  v.  Pierce,  9  Gray  306;  Nutting  v.  Herbert,  37  N.  H.  346;  Fair  V. 
Stevenot,  19  Cal.  490. 

98  Billington  v.  Welsh,  5  Binn.  129;  Patten  v.  Moore,  32  N.  H.  384; 
Truesdale  v.  Ford,  37  111.  210;  Lindley  v.  Martindale,  78  Iowa  379; 
Ellis  V.  Young,  31  S.  C.  322;  Matesky  v.  Feldman,  75  Wis.  103.  For 
validity  of  unrecorded  deed  or  mortgage,  as  to  all  those  with  actual 
notice,  see  LeCorta  v.  De  Corte   (Fla.  1905),  39  So.  Rep.  58. 

852 


SECTION  II. 

COMPONENT  PARTS  OF  A  DEED. 

Section  587.  Deeds-poll  and  of  indenture. 

588.  Component  parts  of  a  deed. 

589.  The  premises. 

590.  Description  —  General  statement. 

591.  Contemporanea  Expositio  est  optima  et  fortissima  in  lege. 

592.  Falsa  demonstratio  non  nocet. 

593.  Description  in  conveyance  of  joint-estates. 

594.  The  elements  of  description. 

595.  Monuments  —  Natural  and  artificial. 

596.  Artificial  monuments  in  United  States  Surveys. 

597.  Non-navigable  streams. 

598.  Navigable  streams. 

599.  What  is  a  navigable  stream. 

600.  Ponds  and  lakes. 

601.  Highways. 

602.  Walls,  fences,  trees,  etc. 

603.  Courses  and  distances. 

604.  Quantity. 

605.  Reference  to  other  deeds,  maps,  etc.,  for  description. 

606.  Appurtenants. 

607.  Necessity  of  use  controls  grant  of  easement  as  appurte- 

nant. 

608.  Exception  and  reservation. 

609.  Habendum. 

610.  Reddendum. 

611.  Conditions. 

§  587.  Deeds-poll  and  of  indenture. —  After  explaining  the 
requisites  of  a  deed  to  convey  land,  it  is  necessary  to  present 
the  formal  and  component  parts.  But  before  proceeding  to 
the  discussion  of  them  in  their  regular  order,  reference  must 
be  made  to  the  two  kinds  of  deeds  known  to  the  law,  and 
differing  in  form,  viz. :  deeds  of  indenture,  and  deeds-poll. 
A  deed  of  indenture  is  a  deed  consisting  of  as  many  parts  as 

853 


§    587  COMPONENT   PARTS   OP   A   DEED.  [PART    111. 

there  are  parties.  Originally,  these  parts,  or  copies,  were 
written  on  the  same  piece  of  paper  or  parchment,  and  for  the 
purpose  of  identifying  the  several  parts,  they  were  cut  apart 
in  an  irregular  line,  somewhat  resembling  the  teeth  of  a  saw, 
instar  dentium,  some  word  having  been  written  over  the  pro- 
posed line  of  severance.  It  is  from  this  quaint  method  of 
execution  that  the  name  indenture  is  derived.  But  this  prac^ 
tice  is  rarely,  if  ever,  followed  now,  and  a  deed  of  indenture 
means  simply  a  deed  executed  by  all  the  parties,  and  con- 
sisting of  as  many  parts  or  copies  as  there  are  parties.  For- 
merly, it  was  customary  for  each  party  to  execute  only  one 
and  a  different  part,  and  the  part  executed  b}'^  the  grantor 
was  called  the  original,  while  that  which  was  executed  by  the 
grantee  was  called  the  counterpart.  But  now  it  is  usual  for 
both  parties  to  execute  each  part."*  A  deed-poll  is  designed 
simply  to  transfer  the  grantor's  interest,  and  is  executed  by 
him  alone.^  Deeds-poll  are  in  the  first  person,  while  deeds 
of  indenture  are  in  the  third  person.  But  this  is  a  mere 
formality,  the  non-observance  of  which  will  not  invalidate  the 
deed ;  and,  although  the  deed  is  in  form  one  of  indenture,  it 
will  be  good  as  a  deed-poll,  if  the  grantor  executes  it  alone.^ 
Indeed,  the  distinction  is  of  very  little  practical  value.  Al- 
though it  is  said  that  a  deed  of  indenture  is  a  stronger  deed 
for  raising  an  estoppel  against  the  grantee,^  yet  a  deed-poll 
can  and  does  raise  all  the  estoppels  necessary  for  the  protec- 
tion of  the  grantor's  interests,  and  by  accepting  the  deed-poll 
the  grantee  takes  the  estate  so  granted,  subject  to  all  the  con- 

9»3  Washburn  on  Real  Prop.  311;  Co.  Lit.  229  a,  Butler's  note  140; 
Dyer  v.  Sandford,  9  Mete.  395;  Dudley  v.  Sumner,  5  Mass.  438. 

13  Washburn  on  Real  Prop.  311;  Dyer  V.  Sandford,  9  Mete.  395; 
Giles  V.  Pratt,  2  Hill   (S.  C.)    439. 

2  3  Washburn  on  Real  Prop.  312;  Hallett  V.  Collins,  10  How.  174; 
Hipp  V.  Hackett,  4  Texas  20. 

3  3  Washburn  on  Real  Prop.  312;  Finley  v.  Simpson,  2  N.  J.  311. 
"  While  only  the  parties  to  a  deed  of  indenture  can  take  a  present  in- 
terest, yet  persons  not  parties,  such  as  after-born  children,  may  take 
an  interest  in  futuro."  Hall  V.  Wright  (Ky.  1905),  87  S.  W.  Rep.  1129, 
27  Ky.  Law  Rep.  1185. 

854 


CH.  XXm.]'      COMPONENT  PARTS  OF  A  DEED.  §  588 

ditions,  exceptions,  reservations,  and  conditions  contained  in 
the  deed.  If  the  deed  is  to  operate  as  a  deed  of  exchange, 
or  one  of  partition,  all  parties  must  join  in  the  execution  of 
the  deed,  and  the  deed  must  be  an  indenture,  since  in  those 
cases  each  party  is,  successively,  and  in  respect  to  his  estate 
thus  conveyed,  a  grantor.  There  is  a  technical  difference 
between  deeds-poll  and  deeds  of  indenture  still  prevailing, 
in  respect  to  the  form  of  action  upon  the  grantee's  covenants. 
In  some  of  the  States,  where  the  common-law  pleading  still 
prevails,  it  is  held  that  the  action  on  the  grantor's  covenant 
in  a  deed-poll  must  be  assumpsit,  since  his  agreement  or  con- 
tract is  not  one  under  his  seal.  And  no  doubt  this  is  the 
correct  view.*  But  in  the  so-called  code  States,  viz.,  where 
the  common-law  pleading  has  been  supplanted  by  the  New 
York  code  of  procedure,  this  distinction  has  passed  away 
with  the  abolition  of  all  forms  of  actions.^ 

§  588.  Component  parts  of  a  deed. —  These  parts  have  been 
divided  and  named  by  Lord  Coke  as  follows:  the  premises, 
habendum,  tenendum,  reddendum,  condition,  warranty,  and 
covenants.  And  although  it  is  advisable,  ex  abundante  cau- 
tela,  to  follow  the  form  and  order  here  prescribed,  making 
use  of  the  technical  and  thoroughly  adjudicated  phraseology, 
it  is  not  absolutely  necessary.  If  a  deed  contains  all  the  requi- 
sites hereinbefore  explained,  it  will  be  a  good  and  effective 
deed,  even  though  the  various  elements  are  presented  in  the 
most  irregular  order,  and  in  the  most  informal  language.  The 
premises  is  the  only  essential  part  of  a  deed  for  the  convey- 
ance of  an  estate.' 

4  Goodwin  v.  Gilbert.  9  Mass.  510;  Newell  v.  Hill,  2  Mete.  180;  Hins- 
dale V.  Humphrey,  15  Conn.  431;  Johnson  v.  Massy,  45  Vt.  419;  Maule 
V.  Weaver,  7  Pa.  St.  829. 

B  Atlantic  Dock  Co.  v.  I^avett,  54  N.  Y.  34. 

«3  Washburn  on  Real  Prop.  365;  Co.  Lit.  6  a,  7  a;  4  Kent's  Com. 
461 ;  Roe  V.  Tranmarr,  Willes  682 ;  Staton  v.  MuUis,  92  N.  C.  623. 

855 


§  590  COMPONENT  PARTS  OF  A  DEED.       [PAKT  111. 

§  589.  The  premises. —  The  term,  premises,  is  given  to  all 
that  part  of  a  deed  which  precedes  the  habendum  clause,  and 
generally  includes  the  names  of  the  parties,  the  recitals  which 
may  be  necessary  to  an  explanation  of  the  deed  and  its  opera- 
tion, the  consideration  and  receipt  of  the  same,  the  operative 
words  of  conveyance,  description  of  the  thing  granted,  and, 
if  it  is  a  deed  of  indenture,  the  date.^  But  these  may  appear 
in  other  parts  of  the  deed,  and  will  be  equally  effective.  And 
it  has  been  held  that  where  the  premises  do  not  contain  the 
name  of  the  grantee,  or  even  sufficient  operative  words  of 
conveyance,  these  may  be  supplied  by  the  habendum.^  This 
is  but  an  application  of  the  general  principle,  already  enun- 
ciated, that  a  logical  or  systematic  arrangement  of  the  parts 
is  not  essential.  All  the  elements  of  the  premises  have  been 
already  fully  discussed,  except  the  matter  of  description  of 
land  granted,  and  nothing  further  need  be  said  here  concern- 
ing them.  We  will,  therefore,  proceed  to  a  discussion  of  the 
description. 

§  590.  Description  —  General  statement. —  At  first  blush,  it 
would  appear  easy  enough  to  describe  specifically  and  clearly 
what  is  granted,  and  if  extreme  caution  was  observed  in  every 
case,  in  framing  the  description,  there  would  be  little  need 
of  rules  of  construction.  For  a  clearly  written  description 
can  never  be  controlled  by  parol  evidence.®  But  at  times  so 
little  precaution  is  taken,  and  so  many  uncertainties  and  in- 
consistencies creep  in,  that  resort  must  be  made  to  established 
rules  of  construction  in  order  to  ascertain  the  intention  of  the 
parties.  And  in  construing  a  deed,  very  little  attention,  if 
any,  is  paid  to  the  punctuation  of  the  description.^"     If  a 

7  3  Washburn  on  Real  Prop.  366. 

8  3  Washburn  on  Real  Prop.  366;  Staton  v.  Mullis,  92  N.  C.  623; 
Wallace  v.  Crow  (Tex.),  1  S.  W.  Rep.  372;  post.  Sec.  609.  Sec  Thomp- 
son V.  Speck   (Tenn  1905),  2  Tenn.  Ch.  App.  759. 

»  Broom's  Leg.  Max.  477;  Cole  v.  Lake  Co.,  54  N.  H.  278;  Hannum 
V.  West  Chester,  70  Pa.  St.  472. 

10  3  Washburn  on  Real  Prop.  397;  Doe  V.  Martin,  4  T.  R.  65;  Ewing 
V.  Burnett,  11  Pet.  54;  Bunn  V.  Wells,  94  N.  0.  67. 
856 


CH.    XXIII.]  COMPONENT   PARTS   OP   A   DEED.  §    590 

description  is  hopelessly  uncertain,  so  that  the  thing  granted 
cannot  be  ascertained  from  the  deed  with  any  reasonable  de- 
gree of  certainty,  the  deed  will  be  void.^^  But  if  it  is  pos- 
sible to  gather  the  intention  from  the  description  by  any  rea- 
sonable rules  of  construction,  it  will  be  enforced,^^  it  ikatters 
not  how  general  the  description  may  be.^^  And  in  applying 
these  rules  of  construction  on  the  assumption,  particularly  in 
a  deed-poll,  that  the  deed  is  in  the  language  of  the  grantor, 
and  he  is  in  fault,  if  uncertainties  or  inconsistencies  arise,  the 
deed  is  construed  most  favorably  to  the  grantee.  But  this  is 
only  done  when  all  other  rules  fail  to  remove  the  doubt.^* 
Another  fundamental  principle  is  that  a  rational  intention 
must  be  sought  after.  The  construction  must  be  reasonable 
and  consistent  with  common  sense.  ^^  In  order  to  ascertain 
the  intention,  it  is  sometimes  necessary  that  resort  should  be 

11  Presbrey  V.  Presbrey,  13  Allen  283;  Walters  v.  Breden,  70  Pa.  St. 
238;  Wofford  v.  McKinna,  23  Texas  45;  3  Washburn  on  Real  Prop.  381; 
Harrell  v.  Butler,  92  N.  C.  20;  Tryon  V.  Huntoon,"67  Cal.  325;  Cun- 
ningham V.  Thornton,  28  111.  App.  58;  Coffey  v.  Hendricks,  66  Texas 
676,  2  S.  W.  Rep.  47 ;  Blow  V.  Vaughan,  105  N.  C.  198,  19  S.  E.  Rep. 
891.     See  Kennedy  V.  Moness   (N.  C.  1905),  50  S.  E.  Rep.  450. 

12  Abbott  V.  Abbott,  51  Me.  582;  Bond  v.  Fay,  12  Allen  88;  Crafts 
V.  Hibbard,  4  Mete.  452;  Smith  V.  Green,  41  Fed.  Rep.  455;  Westmore- 
land V.  Carson,  76  Texas  619;  Smith  v.  Brown,  66  Texas  543,  1  S.  W. 
Rep.  273;  Smith  v.  Greaves,  15  Lea  459;  Coe  v.  Ritter,  86  Mo.  277; 
Prior  V.  Scott,  87  Mo.  303;  Wabash,  etc.,  R.  R.  Co.  v.  McDougal,  113  111. 
603;  Mann  V.  State,  116  Ind.  383. 

13  Smith  i\  Westall,  76  Texas  509,  13  S.  W.  Rep.  540;  Witt  v.  Har- 
lan, 60  Texas  660,  2  S.  W.  Rep.  41;  Galbraith  v.  Engleke  (Tex.),  1  S. 
W.  Rep.  346.  "  A  description  of  land  as  '  ten  acres  of  land  situated  in 
[a  certain  district],  where  I  now  reside,'  is  not  too  indefinite  to  be 
made  certain  by  parol  evidence."  Brice  v.  Sheffield  (Ga.  1903),  44  S.  E. 
Rep.  843. 

1*  Worthington  v.  Hylyer,  4  Mass.  205;  Clough  r.  Bowman,  15  N.  H. 
504;  Sanborn  V.  Clough,  40  N.  H.  339;  Carroll  v.  Norwood.  5  Har.  & 
J.  155 ;  Vance  V.  Fore,  24  Cal,  446.  See  Negaunee  Iron  Co.  v.  Iron 
Cliffs  Co.   (Mich.  1903),  90  N.  W.  Rep.  468. 

15  Lyman  v.  Arnold,  5  Mason  198;  Day  v.  Adams,  42  Vt.  510;  Ma- 
goon  V.  Harris,  46  Vt.  271.  See  Abercrombie  v.  Simmons  (Kan.  1905), 
81  Pac.  Rep.  208. 

857 


§  590  COMPONENT  PARTS  OF  A  DEED.      [PART  III. 

had  to  parol  evidence.  But  this  can  only  be  done  when  there 
is  some  uncertainty  arising  outside  of  the  deed.  Then  parol 
evidence  is  admissible  to  explain  the  ambiguities  arising  in 
this  manner  by  showing  the  circumstances  surrounding  the 
parties,^  explaining  words  of  art  and  by  proof  of  any  other 
facts  which  will  tend  to  render  certain  the  intentions  of  the 
parties.^"  Parol  evidence,  however,  is  inadmissible  to  ex- 
plain away  an  ambiguity  which  appears  upon  the  face  of  the 
deed,  as  where  the  deed  shows  upon  its  face  that  the  descrip- 
tion applies  equally  to  two  lots.^^  When  the  deed  contains 
everything  necessary  for  a  correct  understanding  of  the  in- 
tention of  the  parties,  and  there  is,  therefore,  no  uncertainty 
or  ambiguity,  parol  evidence  cannot  control  the  construction 
or  add  to  the  provisions  of  the  deed.^^  Where  the  deed,  upon 
a  reasonable  construction,  conveys  other  property,  or  imposes 
other  restrictions  or  conditions  than  were  intended  by  the 
parties,  the  courts,  more  particularly  those  of  equity,  are 
authorized,  either  by  statute  or  under  the  general  equitable 
jurisdiction,  to  reform  it,  so  as  to  conform  to  the  intention  of 
the  parties.^®  But  the  reformation  must  be  necessary  to 
effectuate  the  intention  of  the  parties.     It  will  not  be  ordered 

16  Shore  v.  Wilson,  9  Cl.  &  Fin.  556;  Eaton  v.  Smith,  20  Pick.  150; 
Putnam  v.  Bond,  100  Mass.  58;  Charles  v.  Patch,  87  Mo.  450;  Wabash, 
etc.,  R.  E.  Co.  V.  McDougal,  1 13  111.  603 ;  Mack  v.  Bensley,  63  Wis.  80 ; 
Thompson  v.  S.  Cal.  M.  R.  Co.,  82  Cal.  497,  23  Pac.  Rep.  130;  East- 
man V.  St.  Anthony,  etc.,  Co.,  43  Minn.  60,  44  N.  W.  Rep.  882;  West- 
moreland V.  Carson,  76  Texas  619;  Bollinger  Co.  v.  McDowell,  99  Mo. 
632;  McKinley  V.  Smith,  29  111.  App.  106;  Brice  V.  Sheffield  (Ga.  1903), 
44  S.  E.  Rep.  843. 

17  Brandon  V.  Leddy,  67  Cal.  43. 

"Bond  V.  Fay,  12  Allen  88;  Caldwell  V.  Fulton,  31  Pa.  St.  489;  Mor- 
rison V.  Wilson,  30  Cal.  347;  Lippett  v.  Kelly,  46  Vt.  516;  Gardt  v. 
Brown,  113  111.  475,  55  Am.  Rep.  430;  Matley  V.  Long,  71  Md.  585;  Hol- 
eomb  V.  Mooney,  13  Or.  513,  11  Pac.  Rep.  274;  Bradish  v.  Yocum,  130 
111.  386,  23  N.  E.  Rep.  114.  See  Dorr  v.  Reynolds,  26  Pa.  Super.  Ct. 
139. 

i»Metcalf  V.  Putnam,  9  Allen  97;  Canedy  v.  Marcy,  14  Gray  373; 
Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  317;  Adams  v. 
Stevens,  49  Me.  362;  Cramer  v.  Burton,  60  Barb.  225;  Andrews  v. 
858 


CH.    XXIII.]  COMPONENT   PARTS   OF   A   DEED.  §    591 

where  the  uncertainty  may  be  removed  by  the  application  of 
well-known  rules  of  construction.^"  Nor  will  a  deed  be  re- 
formed because  the  parties  have  mistaken  the  legal  operation 
of  the  deed.^^  But  reformation  of  instruments  is  a  branch 
of  equity  jurisprudence,  and  does  not  properly  belong  to  a 
work  "on  Real  Property.  Suffice  it  to  say  that,  until  it  is 
reformed,  an  absolutelj'^  defective  deed  conveys  nothing. 

§  591.  Contemporanea  exposito  est  optima  et  fortissima  in 
lege. —  In  construing  deeds,  courts  endeavor  to  place  them- 
selves in  the  position  of  the  parties  at  the  time  of  the  convey- 
ance, in  order  to  ascertain  what  is  intended  to  be  conveyed. 
For,  in  describing  the  property,  parties  are  presumed  to  refer 
to  its  condition  at  that  time,  and  the  meaning  of  their  terms 
of  expression  can  only  be  properly  understood  by  a  knowledge 
of  their  position  and  that  of  the  property  conveyed.-^  Thus, 
where  the  channel  of  a  stream  running  through  a  tract  of 
land,  was  changed  by  the  proprietor,  and  he  subsequently 
sold  it  in  parcels  to  different  persons,  so  that  the  new  channel 

Gillespie,  47  N.  Y.  487;  Use  v.  Larmsheimer,  76  Texas  459;  Staflford 
V.  Giles   (Pa.),  19  Atl.  Rep.  1028;  McShane  v.  Main,  62  N.  H.  24. 

20  White  V.  White,  L.  R.  15  Eq.  247;  Andrews  v.  Spurr,  8  Allen  416; 
Clement  v.  Youngman,  40  Pa.  St.  344 ;  Keene's  Appeal,  64  Pa.  St.  274 ; 
Mills  V.  Lockwood,  42  111.  111.  And  .the  mistake  must  have  been 
mutual.  Kruse  V.  Koelzer  (Wis.  1905),  102  N.  W.  Rep.  1072.  "A 
court  of  equity  will  not  decree  the  correction  of  a  mistake  in  a  deed 
of  voluntary  conveyance."  Henry  v.  Henry  (111.  1905),  74  N.  E.  Rep. 
126. 

21  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  317;  Glass  v. 
Hulburt  102  Mass.  44;  Canedy  V.  Marcy,  13  Gray  363;  Hutchings  v. 
Huggins,  59  111.  32. 

22  Dunklee  v.  Wilton  R.  R.,  24  N.  H.  489 ;  Richardson  v.  Palmer,  38 
N.  H.  218;  Connery  v.  Brooke,  73  Pa.  St.  84;  Commonwealth  v.  Rox- 
berry,  9  Gray  493;  Abbott  V.  Abbott,  51  Me.  581;  Lane  V.  Thompson, 
43  N.  H.  324;  Thompson  v.  Southern  Cal.  M.  R.  Co.,  82  Cal.  497,  23 
Pac.  Rep.  130;  Staples  V.  May  (Cal.),  23  Pac.  Rep.  710.  "In  con- 
struing a  doubtful  description  in  a  deed,  the  court  will  consider  the 
position  of  the  contracting  parties  and  circumstances,  and  interpret 
the  language  in  the  light  of  the  circumstances."  Abercrombie  v.  Sim- 
mons (Kan.  1905),  81  Pac.  Rep,  208. 

859 


§  592  COMPONENT  PARTS  OF  A  DEED.       [PART  III. 

was  completely  within  the  boundaries  of  one  parcel,  the 
grantee  of  this  parcel  could  not,  by  restoring  the  stream  to 
its.  old  channel,  inundate  the  other  parcels.^'  And  if  at  the 
time  of  the  conveyance  by  the  government  of  land  bounding 
on  a  stream,  the  stream  was  declared  by  act  of  Congress  to 
be  navigable,  making  the  boundary  line  the  low-water  mark 
on  the  shore,  a  subsequent  repeal  of  the  act  of  Congress  can 
have  no  effect  on  the  location  of  the  boundary  line.^*  So, 
also,  if  the  grant  was  made  of  a  farm,  describing  the  same, 
but  not  particularizing  what  parcels  were  included  under  the 
general  description,  all  parcels  will  pass  by  the  deed  which 
were  at  the  time  of  the  conveyance  used  and  occupied  to- 
gether.^* "Where  the  description  is  susceptible  of  two  con- 
structions, the  extent  of  the  possession  will  control.^®  And 
where,  at  the  time  of  the  conveyance,  the  grantor  had,  in  addi- 
tion to  some  lands,  a  right  of  entry  upon  the  breach  of  a  con- 
dition, and  the  breach  had  not  yet  occurred,  the  land  acquired 
by  a  subsequent  exercise  of  the  right  of  entry  was  held  not  to 
pass  under  a  mortgage  of  all  his  rights  and  interests  in  lands 
in  C." 

§  592.  Falsa  demonstratio  non  nocet. —  It  is  a  general  rule 
of  construction  that  the  deed  should  be  so  construed,  that  the 
whole  deed  shall  stand  and  be  enforced.^^  If  this  is  impos- 
sible, and  the  description  contains  several  elements  of  descrip- 
tion, all  of  which  are  necessary  to  the  identification  of  the 
property  intended  to  be  conveyed,  the  deed  will  be  void  if  no 
property  of  the  grantor  can  be  found  which  will  correspond 

23  3  Washburn  on  Real  Prop.  384 ;  Roberts  v.  Roberts,  55  N.  Y.  275. 
See,  also,  Buras  v.  O'Brien  (T^a,),  7  So.  Rep.  632;  St.  Louis,  etc.,  Ry. 
Co.  V.  Ramsey   (Ark.),  13  S.  W.  Rep.  931. 

24  Serrin  v.  Grefe,  67  Iowa  196. 

25  Bell  V.  Woodward,  46  N.  H.  337.  See  Webb  v.  Walters  (Tex. 
1905),  87  S.  W.  Rep.   1051. 

26  Booth  V.  Patte,  L.  R.  15  App.  Cas.  188. 

27  Richardson  V.  Cambridge,  2  Allen  118. 

28  Walters  v.  Breden,  70  Pa.  St.  238.  See  Hubbird  v.  Fain,  137  Fed, 
Rep.  822. 

860 


CII.    XXIII.  J  COMPONENT   PARTS   OF   A    DEED.  §    uLJ 

with  every  part  of  the  description.-^  But  if  the  intention,  as 
gathered  from  the  deed,  does  not  make  it  necessary  to  satisfy 
all  the  elements  of  the  description,  or  if  parts  of  the  descrip- 
tion are  inconsistent  with  other  parts,  and  enough  of  them 
are  consistent  to  identify  the  property  intended  by  the  parties 
to  pass,  whatever  is  repugnant  is  rejected,  and  the  deed  is 
enforced  under  this  construction.^"  Where  two  inconsistent 
parts  of  the  description  are  equally  balanced,  it  has  been  held 
that  the  grantee  may  choose  that  which  is  most  favorable  to 
him.^^  The  first  part  of  the  description  will  prevail  over  the 
last,  provided  both  appear  in  the  granting  portion  of  the  deed ; 
and  if  one  part  is  written  and  the  other  is  printed,  the  written 
part  will  prevail.^^  A  particular  description  prevails  over 
and  limits  the  application  of  a  general  description.^^  If, 
therefore,  a  deed  defines  with  reasonable  certainty  what  is 
intended  to  be  conveyed,  the  fact  that  a  portion  of  the  de- 
scription is  not  satisfied  by  the  specific  property  will  not  in- 
validate the  conveyance.^*  But  if  there  are  lands  in  the  pos- 
session of  the  grantor  which  comply  with  all  the  particulars 

29  3  Washburn  on  Real  Prop.  400;  Brown  i".  Saltonstall,  3  Me.  423; 
Warren  v.  Coggswell,  10  Gray  76.  See  Kennedy  r.  Moness  (N.  C.  1905) 
50  S.  E.  Rep.  450. 

soCorbin  V.  Healy,  20  Pick.  514;  Bond  v.  Fay,  8  Allen  212;  Presbrey 
V.  Presbrey,  13  Allen  283;  Doane  v.  Wilcutt,  10  Gray  371;  Scull  v. 
Preiden,  92  N.  C.  168;  Chadwick  v.  Carson,  78  Ala.  166;  Holston  V. 
Needles,  115  111.  461;  Irving  v.  Cunningham,  66  Cal.  15;  Gerald  r. 
Gerald,  31  S.  C.  171;  Maguire  V.  Bissell,  119  Ind.  345;  Cake  v.  Cake,  127 
Pa.  St.  400 ;  easier  v.  Byers,  129  111.  657 ;  Ambs  v.  Chicago,  etc.,  R.  R. 
Co.,  44  Minn.  266. 

31  Esty  V.  Baker,  50  Me.  331;  Melvin  f.  Proprietors,  etc.,  8  Mete.  27. 
See  Brandon  v.  Leddy,  67  Cal.  43.  "  When  there  are  two  descriptions 
in  a  deed,  which  are  inconsistent  with  each  other,  the  grantee  is  at  lib- 
erty to  select  that  which  is  most  favorable  to  him."  McBride  V.  Burns 
(Tex.  Civ.  App.  1905),  88  S.  W.  Rep.  394. 

82  Webb  V.  Webb,  29  Ala.  606 ;  McNear  V.  McComber,  18  Iowa  17 ; 
Duffield  V.  Hue,  129  Pa.  St.  94. 

83  Johnson  Co.  v.  Wood,  84  Mo.  489. 

34  Parker  v.  Kane,  22  How.  1 ;  Crosby  v.  Bradbury,  20  Me.  61  ;  Parks 
f.  Loorais,  6  Gray  467 ;  Presbrey  v.  Presbrey,  13  Allen  283 ;  Jackson  v. 
Clark,  7  Johns.  223;  Lush  v.  Druse,  4  Wend.  313;  Spiller  v.  Scribner, 

861 


§  593  COMPONENT  PARTS  OF  A  DEED.      [PART  III. 

of  the  description,  then  only  such  lands  will  pass  by  the  deed, 
although  it  might  appear  from  evidence  that  other  parcels  arc 
intended  to  pass  also.'^  In  determining  what  is  the  falsa 
demonstratio,  which  may  be  rejected  without  invalidating  the 
deed,  it  must  be  remembered  that  a  particular  or  special  de- 
scription will  generally  control  a  general  or  implied  descrip- 
tion, in  whatever  order  they  may  come.*" 

§  593.  Description  in  conveyances  of  joint  estates. —  A  ten- 
ant cannot,  without  the  consent  of  his  co-tenants,  give  an 
absolute  title  to  any  part  of  the  estate,  described  by  metes 
and  bounds,  equal  in  value  to  his  undivided  share  in  the  joint 
estate,  which  will  be  binding  upon  his  co-tenants.*^  And  some 
of  the  courts  deny  the  efficacy  of  such  a  conveyance  for  any 
purpose,  without  the  consent  of  the  co-tenants.  It  conveys 
to  the  grantee  no  interest  whatsoever  in  the  general  estate.** 

36  Vt.  246;  Johnson  v.  Simpson,  36  N.  H.  91 ;  Weeks  v.  Martin,  10  N.  Y. 
S.  656;  Trentman  v.  Neff   (Ind),  24  N.  E.  Rep.  895. 

3B  Brown  v.  Saltonstall,  3  Me.  423;  Morrell  v.  Fisher,  4  Eich.  591; 
Warren  V.  Coggswell,  10  Gray  76;  Griffithes  v.  Penson,  1  H.  &  Colt. 
862;  Llewellyn  v.  Jersey,  11  Mees.  &  W.  183.  See  Owsley  v.  Johnson 
(Minn.  1905),  103  N.  W.  Rep.  903.  "A  deed  of  'ten  acres  of  l^nd 
where  I  now  reside '  is  sufficiently  identified  by  evidence  that  at  the 
time  of  its  execution  the  grantor  was  living  in  the  district  named  in 
the  deed  on  land  which  contained  just  10  acres."  Brice  V.  Sheffield  (Ga. 
1903 ) ,  44  S.  E.  Rep.  843. 

36  Smith  V.  Strong,  14  Pick.  128 ;  Whiting  v.  Dewey,  15  Pick.  428 ; 
Winn  V.  Cabot,  18  Pick.  553;  Dana  v.  Middlesex  Bank,  10  Mete.  250; 
Howell  V.  Saule,  5  Mason  410.  But  see  Moran  V.  Somes  (Mass.),  28 
N.  E.  Rep.  152,  where  it  is  held  that,  where  a  deed  conveys  *'  all  my 
right,  title  and  interest,"  it  passes  the  whole  estate  of  the  grantor, 
which  were  four  undivided  fifths,  although  the  deed  described  the  inter- 
est to  be  three  undivided  fifths. 

37  Brown  V.  Bailey,  1  Mete.  254;  Nichols  V.  Smith,  22  Pick.  316;  Pea- 
body  V.  Minot,  24  Pick.  329;  Whilton  v.  Whilton,  38  N.  H.  127;  Jew- 
ett's  Lessee  v.  Stockton,  3  Yerg.  492;  Good  v.  Combs,  28  Texas  51;  Mc- 
Key  V.  Welch,  22  Texas  390. 

38Soutter   V.   Porter,   17   Me.   405;    Phillips   v.   Tudor,    10   Gray   82; 

Johnson  V.  Stevens,   7   Cush.  431;    Cripper  v.  Morse,  49  N.  Y.   67;    3 

Washburn   on  Real   Prop.   261;    Cox  v.  McMullin,   14   Gratt.   84.     But 

where  the  joint  estate  consists  of  several  distinct  parcels,  there  is  no 

862 


CH,   XXIII.]  COMPONENT   PARTS   OF   A   DEED.  §    594 

But  he  more  rational  and  equitable  theory  would  seem  to  be, 
that  such  a  conveyance  would  pass  whatever  was  the  grantor 's 
proportionate  share  in  that  part  of  the  joint  estate,  and  make 
the  grantee  a  co-tenant  in  the  general  estate  to  the  extent  of 
the  interest  so  conveyed.  Thus,  if  one  of  two  equal  co-ten- 
ants conveys  his  share  in  one-half  of  the  joint  estate,  described 
by  metes  and  bounds,  his  grantee  would  become  a  co-tenant 
with  the  others  in  an  undivided  one-fourth  of  the  whole 
estate.^®  For  it  is  undisputed  that  if  the  owner  of  lands 
grants  a  specified  number  of  acres  in  the  estate  without  de- 
scribing them,  his  grantee  will  become  a  tenant  in  common 
with  him,  his  share  being  covered  by  the  ratio  which  his 
number  of  acres  bore  to  the  whole  estate.*"  The  description 
by  metes  and  bounds  may  be  treated  as  surplusage,  except 
for  the  purpose  of  determining  the  grantee's  aliquot  share 
in  the  entire  joint  estate.  If  the  property  has  been  divided 
up  into  town  lots,  it  is  clear  and  beyond  dispute,  that  a  co- 
tenant  may  by  metes  and  bounds  convey  his  undivided  inter- 
est in  one  or  more  of  the  lots.*^ 

§  594.  The  elements  of  description — A  full  and  complete 
description  gives  monuments,  courses,  and  distances,  and  the 
quantity  of  land  conveyed.     The  relative  value  of  them,  in 

objection  to  the  reconveyance  of  one  co-tenant's  interest  in  one  parcel. 
Butler  V.  Roys,  25  Mich.  53,  12  Am.  Rep.  218;  Peabody  f.  Minot,  24 
Pick.  329.     See  Costello  v.  Graham  (Ariz.  1905),  80  Pac.  Rep.  336. 

39  Reinicker  V.  Smith,  2  Har.  &  J.  421 ;  Campan  V.  Godfrey,  18  Mich. 
39.  See  Newton  v.  Home  and  Drury,  29  Wis.  531,  9  Am.  Rep.  61(5: 
Boylston  Ins.  Co.  v.  Davis,  68  N.  C.  17,  12  Am.  Rep.  624;  Holcomb  r. 
Coryell,  11  N.  J.  Eq.  548;  Jewett  V.  Foster,  14  Gray  496;  Gibbs  r. 
Swift,  12  Cush.  393;  Jackson  v.  Livingston,  7  Wend.  136;  Wilford  v. 
McKinna,  23  Texas  45;  Furrh  V.  Winston,  66  Texas  521;  Charleston  C. 

6  C.  R.  R.  V.  Leech  (S.  E.),  11  S.  E.  Rep.  631;  Howse  v.  Dew   (Ala.), 

7  So.  Rep.  239.     Contra,  Shackleford  v.  Bailey,  35  111.  391. 

40  Jewett  V.  Foster,  14  Gray  496 ;  Gibbs  V.  Swift,  12  Cush.  393 ;  Pres- 
ton V.  Robinson,  24  Vt.  593;  Jackson  v.  Livingston,  7  Wend.  136;  Wof- 
ford  t\  McKinna,  23  Texas  45;  Schenck  V.  Evoy,  24  Cal.  110.  Contra, 
Shackleford  v.  Bailey,  35  111.  391. 

41  Shepherd  v.  Jernigan,  51  Ark.  275. 

863 


§  595  COMPONENT  PARTS  OF '  A  DEED.       [PART  III. 

determining  the  boundaries,  is  in  the  order  given.  Monu- 
ments control  the  courses  and  distances,  and  both  control  the 
(luantity  of  land.*^  The  reason  for  this  order  of  preference 
lies  in  the  rule  of  construction,  that  where  there  is  an  incon- 
sistency in  the  description,  that  element  of  description  will 
be  followed  as  to  which  there  is  the  least  likelihood  of  a  mis- 
take.*^ And,  generally,  the  description  contains  data  for  the 
location  of  all  four  sides  of  the  tract  of  land.  But  where 
three  are  given,  and  there  is  sufficient  description  as  to  their 
courses  and  distances  to  establish  the  fourth  by  reasonable 
intendment,  the  deed  will  not  be  void.** 

§  595.  Monuments  —  Natural  and  artificial. —  There  are  two 
kinds  of  monuments,  natural,  or  those  objects  which  are  per- 
manent j  and  are  found  upon  the  land ;  and  artificial,  or  those 
which  are  placed  there  for  the  very  purpose  of  pointing  out 
the  boundary.  Among  the  natural  objects  which  may  serve 
as  monuments  may  be  mentioned  trees,  streams,  ponds,  or 
lakes,  shores  and  highways ;  *'^  and  where  reference  is  made . 
in  a  deed  to  artificial  monuments  which  do  not  then  exist,  they 

« Brown  v.  Huger,  21  How.  305;  Powell  v.  Clark,  5  Mass.  35.'); 
Llewellyn  v.  Jersey,  11  Mees.  &  W.  183;  Hall  v.  Davis,  3G  N.  H.  509; 
Jackson  V.  Diefendorf,  1  Caines  493;  Mann  v.  Pearson,  2  Johns.  37; 
Drew  V.  Swift,  46  N.  Y.  207;  Mackentile  V.  Savoy,  17  Serjr.  &  R.  104; 
Commissioners  V.  Thompson,  4  McCord  434;  Miller  V.  Cherry,  3  Jones 
Eq.  29;  Colton  v.  Seavey,  22  Cal.  496;  Coburn  v.  Coxeter,  51  N.  H. 
158;  Wilder  v.  Davenport,  58  Vt.  642;  Friend  v.  Friend,  64  Md.  321. 
See  Person  v.  Champbliss'  Admr.  (Miss.  1905),  38  So.  Rep.  286. 
"  Wherever  a  deed  refers  to  monuments  actually  erected  as  boundaries 
of  the  land,  they  must  prevail,  whatever  mistakes  the  deed  may  con- 
tain as  to  courses  and  distances."  Leverett  v.  BuUard  (Ga.  1904),  49 
S.  E.  Pep.  591. 

43  Miller  v.  Cherry.  3  Jones  Eq.  39 ;  Melvin  V.  Proprietors,  etc..  5 
Mete.  28;  Esty  v.  Baker,  50  Me.  311;  Ferris  v.  Coover.  10  Cal.  G2S. 

44  Commonwealth  v.  Roxbury,  9  Gray  490.  See  Wall  v.  Club  St. 
Co.    (Texas  1905),  88  S.   W.  Rep.   534. 

4BFlagg  V.  Thurston,   13  Pick.   159;   Bloch  t?.  Pfaff,   101   Mass,  538; 
Bates  V.  Tymanson,    13  Wend.   30P;    Carroll  V.  Norwood,   5  Har.  &.  J.. 
163 ;  Smith  v.  Murphy,  1  Tayl.  303. 
864 


CH.    XXIII.]  COMPONENT   PARTS   OF   A   DEED.  §    595 

may  be  located  subsequently  by  the  parties.  They  will  then 
control  the  courses  and  distances,  although  it  may  be  possible 
to  show  by  parol  evidence  that  the  artificial  monuments  as 
erected  do  not  show  the  true  line.*"  Parol  evidence  is  not 
admissible  to  control  the  boundaries  in  a  deed.*^  But  if  the 
monuments  are  lost,  or  have  been  moved,  or  there  is  doubt 
as  to  which  of  the  two  objects  was  intended  to  be  the  monu- 
ment, parol  evidence  is  admissible  to  determine  the  monument 
or  its  location.*^  And  the  question,  where  the  boundaries  are 
and  what  is  the  location  of  the  monuments,  is  one  of  fact  for 
the  jury.*^  Natural  monuments  are  higher  in  value  than 
artificial  ones,  and  are  always  given  the  preference  in  the  case 
of  an  inconsistency  in  the  description  arising  from  a  refer- 
once  to  both.'*"  Where  a  line  is  described  as  running  from 
one  monument  to  another,  it  is  always  a  straight  line  between 
those  two  points.  And  if  three  monuments  are  referred  to  as 
points  on  the  boundary,  the  line  must  be  straight  from  one 

■*•' Kennebec  Purchase  v.  Tiffany,  1  Me.  219;  Knowles  V.  Toothacker, 
58  Me.  175;  Corning  v.  Troy  Co.,  40  N.  Y.  208;  Waterman  v.  John- 
son, 13  Pick.  261;  Cleveland  v.  Flagg,  4  Cush.  81;  Claney  v.  Rice,  20 
Pick.  62;  Hathaway  v.  Evans,  108  Mass.  270;  Eoekwell  V.  Baldwin, 
53  111.  22;  Smith  v.  Hamilton,  20  Mich.  433;  Leverett  V.  Bullard  (Ga. 
1905),  49  S.  E.  Rep.  591;  Elsea  V.  Adkins  (Ind.  1905),  74  N.  E.  Rep. 
242. 

47  Parker  V.  Kane,  22  How.  1;  Dean  V.  Erskine,  18  N.  H.  83;  Frost 
V.  Spaulding,  19  Pick.  445;  Spiller  V.  Scribner,  36  Vt.  247;  Drew  V. 
Swift,  46  N.  Y.  209;  McCoy  V.  Galloway,  3  Ohio  283.  See  Dorr  v. 
Reynolds,  26  Pa.  Super.  Ct.   139. 

<8  Stone  V.  Clark,  1  Mete.  378;  Frost  v.  Spaulding,  19  Pick,  445; 
Gratz  V.  Bates,  45  Pa.  St.  504;  Middleton  V.  Perry,  2  Bay  539;  Colton 
V.  Seavey,  22  Cal.  496. 

*»  Abbott  V.  Abbott,  51  Me.  581;  Opdyke  v.  Stephens,  28  N.  J.  L.  90. 
"  The  application  of  the  description  in  a  deed  to  the  land  is  for  the 
jury."  Snooks  V.  Wingfield  (W.  Va.  1903),  44  S.  E.  Rep.  277;  Cole 
V.  Mueller  (Mo.  1905),  86  S.  W.  Rep.  193;  Neumeister  V.  Goddard 
(Wis.  1905),  103  N.  W.  Rep.  241. 

00  Bolton  V.  Lann,  16  Texas  96 ;  Falwood  v.  Graham,  1  Rich.  497 ; 
Beahan  v.  Stapleton,  13  Gray  427;  Brown  v.  Huger,  21  How.  305; 
Mclver  v.  Walker,  4  Wheat.  444;  Newson  v.  Pryor,  7  Wheat.  7;  Duren 

56  865 


§  596  COMPONENT  PARTS  OF  A  DEED.       fPART  III. 

monument  to  another  successively.''^  Furthermore,  if  a  line 
is  described  as  running  from  a  given  point  to  a  natural  object, 
like  a  highway  or  stream,  unless  the  course  or  length  of  the 
line  is  given,  it  must  be  the  shortest  line  drawn  from  the  point 
to  the  object,  and  must,  therefore,  be  at  right  angle  with  the 
stream  or  highway."*^  Where  the  line  is  described  as  run- 
ning "between"  two  objects,  the  objects,  as  well  as  the  land 
lying  between  them,  are  excluded  from  the  grant.  So,  also 
when  the  description  is  "from"  one  object,  "to"  another. ''^ 

§  596.  Artificial  monuments  in  the  TTnited  States'  surveys. — 
The  public  lands  of  the  Western  Territories,  which  became 
the  property  of  the  United  States  government  upon  the 
foundation  of  the  present  Union,  were  by  acts  of  Congress 
surveyed  and  divided  up  into  townships,  sections,  and  subdi- 
visions of  sections,  as  has  been  already  explained.^*  When 
afterwards  these  lands  were  sold  to  private  individuals,  they 
were  always  described  by  referring  to  the  number  of  the  town- 
ship, section,  and  subdivision  of  the  section.  The  boundaries 
of  these  sections  and  of  the  quarter  and  half  sections  were 
marked  for  the  most  part  by  artificial  monuments,  which  con- 
stituted the  corners  of  these  tracts  of  land.  If,  therefore,  the 
deed  calls  for  a  certain  quarter  section  of  a  certain  section  in 
a  certain  township,  a  reference  to  the  maps  and  field  notes 

V.  Presberry,  25  Texas  512.  See  Marshall  v.  Corbett  (N.  C.  1905),  50 
S.  E.  Rep.  210. 

51  Allen  V.  Kingsbury,  16  Pick.  235;  Jenks  v.  Morgan,  6  Gray  448; 
Hovey  v.  Sawyer,  5  Allen  585;  Nelson  v.  Hall,  1  McLean  519;  Caraway 
V.  Chancy,  6  Jones  L.  364;  Baker  v.  Talbott,  6  B.  Mon.  179;  McCoy  V. 
Galloway,  3  Ohio  382.  "  Ordinarily,  a  boundary  line  marked  part  of 
the  way  will  be  continued  in  the  same  direction  for  the  full  distance." 
Seitz  V.  People's  Sav.  Bank   (Mich.  1905),  103  N.  W.  Eep.  545. 

52  Van  Gordeu'  v.  Jackson,  5  Johns.  474;  Bradley  v.  Wilson,  58  Me. 
360;  Craig  V.  Hawkins,  1  Bibb.  64;  Hicks  V.  Coleman,  25  Cal.  142; 
Caraway  v.  Chancy,  6  Jones  L.  364. 

58Bonney  v.  Morrill,  52  Me.  256;  Hatch  V.  Dwight,  17  Mass.  289; 
Carbrey  v.  Willis,  7  Allen  370;  Millett  v.  Fowie,  8  Cush.  150;  Wells  tf. 
Jackson  Iron  Co.,  48  N.  H.  491. 

84  See  ante,  Sec.  519. 
866 


CH.    XXIII.]  COMPONENT   PARTS  OF   A   DEED.  §    596 

of  the  survey  will  determine  the  location  of  the  land,  for 
maps  and  surveys  are  generally  proper  evidence  for  the  estab- 
lishment of  boundaries,'*'  and  the  United  States  Statutes  makes 
the  field  notes  and  plats  of  the  original  surveyor  the  primary 
and  controlling  evidence  of  boundary.'^  These  field  notes 
and  the  plats  call  for  artificial  monuments  to  designate  the 
comers  of  the  tract,  and  when  they  are  found,  since  artificial 
monuments  control  distances  and  courses  in  government  sur- 
veys as  well  as  in  ordinary  cases,^^  no  difficulty  will  be  ex- 
perienced in  ascertaining  the  boundaries,  except  in  two  cases : 
First,  if  the  deed  calls  for  natural  monuments,  and  the  land 
is  described  in  part  by  reference  to  them;  and  secondly, 
where  the  description  consists  in  a  reference  to  the  township 
and  section,  and  it  is  ascertained  that  one  or  more  of  the 
corners  have  been  lost.  In  the  first  case,  the  general  rule  that 
natural  monuments  control  in  the  matter  of  boundary  both 
the  artificial  monuments  and  the  courses  and  distances,  ap- 

s'Haring  v.  Van  Houten,  22  N.  J.  L.  61;  Alexander  v.  Lively,  5  B. 
Mon.  159;  Bruce  v.  Taylor,  2  J.  J.  Marsh.  160;  Steele  v.  Taylor,  3  A. 
K.  Marsh.  226;  Madison  City  v.  Hildreth,  2  Ind.  274;  Tate  v.  Gray,  1 
Swan  73;  Carmichael  v.  Trustees,  4  Miss.  84;  McClintock  v.  Bogers,  11 
111.  279.  "  Where  lands  are  conveyed  by  a  reference  to  a  plat,  the  plat, 
with  its  notes,  lines,  etc.,  is  as  controlling  as  if  such  description  were 
written  in  the  deed."  Neumeister  v.  Goddard  (Wis.  1905),  103  N.  W. 
Rep.  241.  "Where  meander  corners  of  a  government  survey  are  lost 
or  obliterated,  they  are  to  be  restored  in  accordance  with  the  circular 
of  the  United  States  Land  Office  of  March  14,  1901."  Kleven  v.  Gun- 
derson   (Minn.  1905),  104  N.  W.  Rep.  4. 

56  U.  S.  Rev.  Stat.,  Sec.  2396.  "  The  boundary  lines  actually  run 
and  marked  in  the  surveys  returned  by  the  Surveyor-General  shall  be 
established  as  the  proper  boundary  lines  of  the  sections  or  subdivisions 
for  which  they  were  intended."  Bruce  r.'  Taylor,  2  J.  J.  Marsh.  160; 
Steele  v.  Taylor,  3  A.  K.  Marsh.  226;  McClintock  v.  Rogers,  11  111.  279. 
See  Hogg  V.  Lusk  (Ky.  1905),  86  S.  W.  Rep.  1128.  See  Washington 
Rock  Co.  V.  Young,  80  Pac.  Rep.  (Utah)   382. 

57  Robinson  v.  Moore,  4  McLean  279;  Esmond  v.  Tarbox,  7  Me.  61; 
Hall  17.  Davis,  36  N.  H.  569;  Hunt  v.  McHenry,  Wright  599;  Bayless 
V.  Rupert,  Wright  634;  Bruckner  v.  Lawrence,  1  Dougl.  (Mich.)  19; 
Climer  v.  Wallace,  28  Mo.  556.  See  Washington  Rock  Co.  v.  Young 
(Utah),  80  Pac.  Rep.  382. 

867 


§  596  COMPONENT  PARTS  OF  A  DEED.      [pART  HI. 

plies  here  in  its  full  force,  although  the  plats  and  field  notes 
would  indicate  a  different  location.^®  The  second  case  pre- 
sents a  greater  difficulty.  It  is  a  general  rule  of  construction 
that  where  the  natural  and  artificial  monuments  cannot  be 
ascertained  by  any  proper  evidence,  the  courses  and  distances 
must  govern  the  location  of  the  boundary,  and  this  is  also 
the  rule  in  respect  to  the  lost  corners  in  the  government  sur- 
veys." But  before  the  courses  and  distances  can  determine 
the  boundary,  all  means  for  ascertaining  the  location  of  the 
lost  monuments  must  first  he  exhausted.  Parol  evidence  is 
admissible  to  establish  the  location  of  monuments,  and  even 
hearsay  evidence  and  evidence  of  general  reputation  are  ad- 
missible in  such  cases.®"  But  in  the  case  of  government  or 
public  lands,  as  a  general  rule,  the  courts  and  the  parties  rely 
chiefly  upon  the  surveys  and  plats  returned  by  the  Surveyor- 
General  for  the  evidence  of  boundary,  and  where  the  corners 
are  lost  and  cannot  be  established  by  parol  evidence,  the  sur- 
veys and  plats  only  give  the  courses  and  distances.  If  the 
surveys  were  accurate  and  the  courses  and  distances  given  in 
the  field  notes  corresponded  exactly  with  the  actual  location  of 
corners,  a  resort  to  these  courses  and  distances  would  do  com- 
plete justice  to  all  the  parties  interested  in  the  ascertainment 
of  the  boundary.     But,  as  a  matter  of  fact,  the  chains  used 

58  Brown  v.  Hager,  21  How.  305;  Mclver  v.  Walker,  4  Wheat.  444; 
Newsom  t?.  Pryor,  7  Wheat.  7;  Duren  v.  Presberry,  25  Texas  512;  East 
Omaha  Land  Co.  V.  Jeffreys,  40  Fed.  Rep.  386 ;  s.  c.  134  U.  S.  178. 

59  Heaton  V.  Hodges,  14  Me.  66 ;  Diidd  v.  Brooke,  2  Gill  198 ;  Bruck- 
ner V.  Lawrence,  1  Dougl.  (Mich.)  19;  Calvert  v.  Fitzgerald,  6  Litt. 
391.  See  Witt  V.  Middleton  (Ky.  1905),  86  S.  W.  Rep.  968.  "W^  .e, 
on  an  issue  as  to  the  location  of  a  government  corner  by  the  surveyors, 
the  actual  location  of  the  corner  is  shown,  the  actual  location  controls, 
though  it  does  not  correspond  fully  with  the  calls  in  the  field  notes." 
Tyler  v.  Haggart  (S.  D.  1905),  102  N.  W.  Rep.  682. 

«oBoardman  v.  Reed,  6  Pet.  341;  Jackson  v.  McCall,  10  Johns.  377; 
Lay  V.  Neville,  25  Cal.  545;  Smith  v.  Shackelford,  9  Dana  452;  Nixon 
V.  Porter,  34  Miss.  697;  Smith  v.  Prewitt,  1  A.  K.  Marsh.  158;  Stroud 
c.  Springfield,  28  Texas  649;  Yates  v.  Shaw,  24  111.  367.  See,  for  com- 
petency of  evidence  of  chainbearer,  Marshall  v.  Corbett  (N.  C),  50  S. 
E.  Rep.  210. 
868 


CH.   XXIII.]  COMPONENT   PARTS   OF   A   DEED.  §    596 

in  making  the  measurements  were  stretched  by  constant  use, 
so  that  they  were  in  most  cases  much  longer  than  the  standard 
chain,  thus  making  the  courses  and  distances  call  for  less  land 
than  was  actually  included  within  the  established  corners. 
The  Supreme  Court  of  Missouri,  relying  upon  the  rule  that 
courses  and  distances  control  the  boundary  when  the  monu- 
ments are  lost,  has  held  that  where  a  corner  is  lost  the  sur- 
veyor must  measure  from  the  known  corner  on  the  eastern 
line  of  the  township  or  section  the  distance  called  for  by  the 
plat  and  field  notes,  and  the  corner  must  be  established  at  that 
distance,  the  surplus  of  land  being  given  to  the  western  sec- 
tion or  quarter  section. ^^  This  is  contrary  to  the  provisions  of 
the  United  States  Statutes,  which  must  govern  in  all  disputes 
as  to  the  boundaries  of  government  lands.  It  is  provided  by 
statute  that  "all  the  corners  marked  in  the  surveys,  returned 
by  the  Surveyor-General,  shall  be  established  as  the  proper 
corners  of  sections  or  subdivisions  of  sections,  which  they 
would  intend  to  designate;  and  the  corners  of  half  and 
quarter  sections  not  marked  on  the  surveys  shall  be  placed  as 
nearly  as  possible  equi-distant  from  two  corners  which  stand 
on  the  same  line."  This  statutory  provision  clearly  makes  the 
field  notes  the  proper  and  the  best  means  of  ascertaining  lost 
corners,  and  the  interpretation  of  the  field  notes  must  be  gov- 
erned largely,  if  not  exclusively,  by  the  principles  of  civil 
engineering.  The  object  being  to  ascertain  the  exact  location 
of  a  lost  corner,  it  is  necessary  and  the  United  States  Statutes 
require  it,  that  the  errors  in  the  measurements  should  be 
noted.  If,  therefore,  the  courses  and  distances. fall  below  the 
actual  amount  of  land  included  in  the  two  contiguous  sections 
or  subdivisions  of  sections,  between  which  the  boundary  is 
to  be  ascertained,  the  surplus  of  land  should  be  divided  be- 

«i  Knight  V.  Elliott,  57  Mo.  322;  Vaughn  v.  Tate,  64  Mo.  491;  Major 
V.  Watson,  73  Mo.  665.  And  this  seems  also  to  be  the  position  of  the 
court  of  Virginia  upon  a  parallel  case.  Overton  v.  Devisson,  1  Gratt. 
211.  See  Hogg  V.  Lusk  (Ky.),  86  S.  W.  Rep.  1128;  Washington  Rock 
Co.  V.  Young  (Utah),  80  Pac.  Rep.  382. 

869 


§  oVl  COMPONENT  PARTS  OF  A  DEED.       [PART  III. 

tween  the  two  tracts  of  land  in  proportion  to  the  respective 
lengths  of  their  lines  in  the  plats. ^'^ 

§  597.  Non-navigable  streams — Generally,  where  land  is 
bounded  by  a  stream  which  is  not  navigable,  the  boundary 
line  is  the  center  line  of  the  stream,  the  filum  aquce;  and  the 
line  changes  its  course  with  the  natural  and  gradual  change 
in  the  current."^  But  it  does  not  always  follow  that  the 
thread  of  the  stream  will  be  the  boundary  line,  because  the 
stream  is  referred  to  in  the  deed.  If  the  stream  is  mentioned 
as  the  boundary  in  general  terms,  or  the  land  is  described 
as  "bounding  on"  or  "running  along"  a  river,  the  stream 
will  be  held  to  be  the  monument  and  the  thread  of  the  stream 
is  the  boundary  line.  And  this  is  true,  although  the  deed 
describes  the  line  on  the  stream  as  extending  from  one  object 
to  another,  both  of  which  are  on  the  shore;  as,  for  example, 
"bounding  on"  the  stream  and  "extending  from"  one  tree 
on  the  bank  to  another.  The  termini  of  the  boundary  line 
are  ascertained  by  drawing  lines  at  right  angles  with  the 
shore  from  these  objects  to  the  center  of  the  stream.**     But 

62  This  rule  is  recognized  and  adopted  in  Jones  v.  Kimble,  19  Wis. 
429,  and  constitutes  one  of  the  printed  instructions  to  the  United  States 
deputy  and  county  surveyors;  and  these  instructions  are  by  statute 
made  a  part  of  every  contract  for  surveying  land.  Sec.  2399,  U.  S. 
Rev.  Stat. 

63  Morrison  v.  Keen,  3  Me.  474 ;  Hatch  f .  Dwight,  17  Mass.  289 ;  Peo- 
ple r.  Canal  Appraisers,  13  Wend.  355;  Commissioners  v.  Kempshall,  2G 
Wend.  404;  People  v.  Piatt,  17  Johns.  195;  Morgan  v.  Reading,  3  Smed. 
&  M.  366;  Browne  V.  Kennedy,  5  Har.  &  J.  195;  Hayes  v.  Bowman,  1 
Rand.  417;  Lynch  v.  Allen,  4  Dev.  &  B.  62;  State  v.  Gimlanton,  9  N. 
H.  461;  Love  v.  White,  20  Wis.  432.  See,  Whittaker  V.  McBride,  65 
Neb.  137,  90  N.  W.  Rep.  966,  197  U.  S.  510;  Edwards  v.  Woodruff,  25 
Pa.  Super,  Ct.  575. 

«*  Lunt  V.  Holland,  14  Mass.  150;  Cold  Springs  Iron  Works  t\  Tol- 
land, 9  Cush.  492;  Newhall  v.  Ireson,  13  Gray  262;  Railroad  v.  Schur- 
meier,  7  Wall.  286;  Luce  V.  Carley,  24  Wend.  451;  Varick  f.  Smith,  9 
Paige  Ch.  .547;  Robinson  v.  White,  42  Me.  218;  Cox  v.  Freedley,  33  Pa. 
St.  129 ;  Norcross  v.  Griffiths,  65  Wis.  699.  See,  Whittaker  v.  McBride, 
197  U.  S.  510. 
870 


CH.   XXIII.]|  COMPONENT  PABTS  OP  A   DEED,  §    598 

if  the  land  is  described  as  bounding  on  the  bank  or  shore  of 
the  stream,  then  the  low-water  mark  on  the  banks  will  be  the 
boundary.  The  particular  reference  to  the  bank  excludes  the 
stream.^  Where  the  stream  or  its  bank  is  the  boundary  line, 
it  follows  its  meanderings  so  that  if  the  distance  is  given  it  is 
ascertained  by  reducing  the  irregular  lines  of  the  shore  to  a 
straight  line.®* 

§  598.  Navigable  streams. —  Where  land  is  bounded  by  a 
navigable  stream,  strictly  so-called,  i.  e.,  where  the  tide  ebbs 
and  flows,  the  boundary  line  is  the  high-water  mark  on  the 
shore.*^  But  in  the  States  where  the  large  rivers  of  this 
country  are  held  to  be  navigable,  although  having  no  tide- 
water, the  boundary  line  is  held  on  those  rivers  to  be  at  low- 
water  mark.'*  But  in  both  cases  the  riparian  owner  has,  as 
appurtenant  to  his  ownership,  the  right  to  erect  and  maintain 
wharfs  and  piers,  subject  to  the  governmental  control  neces- 

«5  Bradford  r.  Cressey,  45  Me.  9;  Child  v.  Starr,  4  Hill  369;  Halsey 
V.  McCormick,  13  N.  Y.  296;  Babcock  v.  Utter,  1  Abb.  Pr.  27;  Martin 
t;.  Nance,  3  Head  650;  Watson  v.  Peters,  26  Mich.  516;  Litchfield  v. 
Ferguson,  141  Mass,  97;  Carter  V.  Chesapeake,  etc.,  R.  R.  Co.,  26  W. 
Va.  644.  53  Am.  Rep.  116. 

««Calk  V.  Stribling,  1  Bibb,  122;  Hicks  v.  Coleman,  25  Cal.  142: 
People  V.  Henderson,  40  Cal,  32. 

67  Canal  Commrs.  v.  The  People,  5  Wend.  423 ;  Wheeler  v.  Spinola,  54 
N.  Y,  377;  Niles  v.  Patch,  13  Gray  254;  Stewart  i'.  Fitch,  30  N,  J,  L. 
20;  Middleton  v.  Pritchard,  4  111.  520,  See,  Edwards  v.  WoodruflF,  25 
Pa.  Super.  Ct.  575.  "  Where  a  devisor  owns  land  under  the  waters  of 
a  river,  separate  devises  of  land  on  the  east  and  west  banks  thereof, 
where  there  is  no  clause  limiting  them,  carry  title  to  the  thread  of  the 
stream,  though  the  river  is  navigable  and  the  tide  ebbs  and  flows 
therein,"  Judgment  (1903)  81  N,  Y.  S,  231,  79  App.  Div.  174,  re- 
versed. Smith  V.  Bartlett  (N.  Y,  1905),  73  N,  E.  Rep,  63,  180  N.  Y, 
360. 

88  Stover  V.  Jack,  60  Pa,  St,  339;  Wood  V.  Appal,  63  Pa,  St,  221; 
Wainwright  v.  McCullough,  63  Pa,  St.  66;  Martin  v.  Evansville,  32 
Ind,  85 ;  Ensminger  v.  People,  47  111,  384 ;  People  V.  Canal  Commrs,  33 
N.  Y.  461;  Edder  v.  Burrus,  6  Humph.  367;  Martin  v.  Nance,  3  Head 
650. 


871 


§  599  COMPONENT  PARTS  OF  A  DEED.       [PART  ITT. 

sary  for  the  protection  of  the  public.'**  The  same  rule  applies 
to  land  bounded  by  the  sea  or  by  the  arras  of  the  sea.  The 
boundary  line  is  the  high-water  mark,  and  what  is  called  the 
shore  or  beach  is  the  property  of  the  State.^**  In  Massachu- 
setts, by  statute,  the  common  law  has  been  changed,  and  now 
riparian  owners  on  navigable  rivers  and  arms  of  the  sea  own 
up  to  the  low-water  mark,''^  unless  the  land  is  described  as 
bounding  on  the  heach,  when  the  high-water  mark  becomes  the 
boundary  line.'^^  In  determining  the  exact  location  of  either 
the  low  or  high-water  mark,  reference  is  always  had  to  the 
ordinary  or  medium  rise  and  fall  of  the  water.''^ 

§  599.  What  is  a  navigable  stream. —  Perhaps  there  is  not 
a  more  difficult  question  to  answer  in  the  law  of  real  prop- 
erty. The  English  common-law  rule  was  that  all  streams,  in 
which  the  tide  ebbed  and  flowed,  were  navigable  streams,  and 
all  others  were  non-navigable.'^*  In  England  that  is  not,  as  a 
matter  of  fact,  the  arbitrary  rule,  which  it  would  be  if  applied 
without  qualification  to  the  streams  of  this  country.  With 
the  exception  of  the  Thames,  above  tide-water,  there  are  no 

esEnsminorer  V.  Davis,  47  111.  384;  Eyan  v.  Brown,  18  Mioh.  196; 
Yates  V.  Milwaukee,  10  Wall.  497 ;  Weber  v.  Harbor  Commrs.,  18  Wall. 
64.  For  a  discussion  of  what  is  a  navigable  stream,  and  for  the  distinc- 
tion between  public,  navigable  and  non-navigable  stream,  see  post,  Sec. 
699. 

70  Storer  v.  Freeman,  6  Mass.  435 ;  Commonwealth  v.  Roxbury,  9 
Gray  492;  Niles  v.  Patch,  13  Gray  254;  Goodtitle  v.  Kibbe,  9  How. 
477;  Hodge  v.  Boothby,  48  Me.  71;  Cortelyou  v.  Van  Brundt,  2  Johns. 
362;  Ledyard  V.  Ten  Eyck,  36  Barb.  125;  Mather  v.  Chapman,  40  Conn. 
382;  Dana  v.  Jackson  St.  Wharf,  31  Cal.  120. 

71  Boston  V.  Richardson,  105  Mass.  353;  Paine  v.  Woods,  108  Mass. 
168;  Valentine  v.  Piper,  22  Pick.  94.  See,  also,  Smith  v.  Bartlett,  180 
N.  Y.  360,  73  N.  E.  Rep.  63. 

72  Litchfield  v.  Ferguson,  141  Mass.  97. 

73  Stover  V.  Jack,  60  Pa.  St.  339;  Wood  v.  Appal,  63  Pa.  St.  221; 
Commonwealth  v.  Alger,  7  Cush.  63 ;  Commonwealth  v.  Roxbury,  9 
Gray  451;  Martin  v.  O'Brien,  .32  Miss.  21;  City  of  Galveston  v.  Menard, 
23  Texas  349;  Nixon  v.  Walter,  41  N.  J.  Eq.  103. 

74  3  Washburn  on  Real  Prop.  413;  People*  r.  Tibbetts,  19  N.  Y.  523; 
Commonwealth  v.  Chapin,  6  Pick.  199. 

872 


CH.    XXin.],  COMPONENT   PARTS   OP   A   DEED.  §    539 

important  streams  in  England  which  are  practically  and 
actually  navigable,  except  those  in  which  the  tide  ebbs  and 
flows ;  and  there  are  no  tide-water  streams  of  any  importance 
which  are  not  actually  navigable.  But  in  the  United  States 
the  situation  is  altogether  different.  Here  we  have  fresh- 
water streams,  which  are  navigable,  and  salt-water  streams  of 
great  value  which  are  not  navigable.  The  application  of  the 
common-law  rule  to  this  country  would,  therefore,  result  in 
nothing  but  absurd  conclusions.  The  courts  of  this  country 
have  been  discussing  the  problem  for  many  years  and  have 
come  to  different  conclusions  on  the  various  branches  or  subdi- 
visions of  the  question.  On  only  one  point  is  there  an  abso- 
lute agreement,  viz. :  that  the  common-law  rule  does  not  gov- 
ern such  questions  in  the  United  States,  so  far  as  the  right  of 
the  public  to  navigate  the  streams  is  concerned.  That  is,  the 
courts  hold  uniformly  that  where  the  streams  are  sufficiently 
deep  and  wide  to  float  boats,  used  in  the  interests  of  commerce 
and  agriculture,  the  public  has  a  right  to  use  them  as  high- 
ways.'^' But  in  whom  is  the  title  of  the  soil  of  the  river 's  bed, 
or  in  what  rivers  does  the  State  own  the  title  to  the  bed,  is 
differently  decided  in  different  courts.  The  courts  are  unani- 
mous in  holding  that  ordinarily,  where  the  tide  ebbs  and  flows, 
the  title  to  the  bed  of  the  stream  is  in  the  State.'^^     But  the 

75  The  Daniel  Ball,  10  Wall.  557 ;  The  Montello,  20  Wall.  439 ;  Brown 
V.  Chadbourne,  31  Me.  9;  Ingraham  V.  Wilkinson,  4  Pick.  268;  Com- 
monwealth V.  Alger,  7  Cush.  53;  The  Canal  Comrars.  v.  People,  5 
Wend.  423;  People  V.  Piatt,  17  Johns.  195;  Palmer  v.  Mulligan,  3 
Gaines  315;  Blanchard  V.  Porter,  11  Ohio  138;  Home  V.  Richards,  Call 
441;  Shrunk  V.  Schuylkill  Co.,  14  Serg.  &  R.  71;  Commrs.,  etc.,  t: 
Withers,  29  Miss.  29;  Charleston  S.  Ry.  Co.  v.  Johnson,  74  Ga.  306. 
But  a  stream  is  non-navigable  by  the  public  in  which  logs  can  be 
floated  only  at  high  water  or  during  a  freshet.  Liewis  v.  Coffee  Co.,  77 
Ala.  190,  54  Am.  Rep.  55. 

7«  Commonwealth  v.  Chapin,  5  Pick.  199 ;  Keyport  Steamboat  Co.  v. 
Farmers'  Transp.  Co.,  18  N.  J.  Eq.  13;  Cobb  v.  Davenport,  32  N.  J.  L. 
369;  Flanagan  V.  Philadelphia,  42  Pa.  St.  219;  State  v.  Pacific  Guano 
Co..  22  S.  C.  50;  State  v.  Pinckney,  22  S.  C.  484.  See,  Whittaker  V. 
McBride,  197  U.  S.  510;  Smith  v.  Bartlett,  180  N.  Y.  360,  73  N.  E.  Rep. 
63. 

873 


§  599  COMPONENT  PARTS  OF  A  DEED.       [PART  III. 

State  does  not  own  the  soil  or  bed  of  every  creek  in  which  the 
tide  ebbs  and  flows.  In  order  that  the  title  to  the  soil  of  such 
creeks  may  be  claimed  by  the  State,  the  creeks  must  be  practi- 
cally navifrable.''^  But  in  respect  to  the  title  to  the  beds  of 
fresh  water  navigable  streams  the  courts  are  divided.  A 
number  of  the  courts  have  held  that  the  fresh  water  streams 
are  governed  by  the  common-law  rule,  in  respect  to  the  title 
to  the  soil  under  navigable  streams,  and  that  the  title  to  the 
beds  of  fresh  water  streams  is  in  the  State.'®  But  the  Su- 
preme Court  of  Mississippi,  in  a  very  able  and  learned 
opinion,  drew  a  distinction  between  public  and  navigable 
rivers.  It  was  there  asserted  that  the  principle,  that  the  title 
to  the  soil  of  navigable  rivers,  i.  e.,  rivers  in  which  the  tide 
ebbs  and  flows,  was  in  the  State,  was  derived  from  interna- 
tional law.  Tidal  waters  are  the  highways  of  nations,  and 
very  properly  the  title  of  the  beds  of  such  streams  was  vested 
in  the  State.  But  where  the  navigable  river  is  a  fresh  water 
stream,  although  a  sound  policy  would  require  a  grant  to  the 
public  of  a  right  of  way  over  it,  there  is  no  reason  why  a  dis- 
tinction should  be  made  between  them  and  non-navigable 
streams,  in  respect  to  the  location  of  the  title  to  the  soil.  It 
was,  therefore,  held  that  the  public  have  a  right  of  way  over, 
fresh  water  streams  which  can  be  navigated,  but  that  the  title 
to  the  bed  is  in  the  riparian  owners,  and  the  boundary  line  is 
the  filum  aqucB  of  the  stream.^'     It  is  so  essential  that  there 

77Rowe  V.  Granite  Bridge  Corp.,  21  Pick.  344;  Glover  v.  Powell,  10 
N.  J.  Eq.  211.  See,  State  V.  Gilmanton,  14  N.  H.  467;  Wilson  v.  Forbes, 
2  Dev.  L.  30;  Am.  River,  etc.,  Co.,  v.  Amsden,  6  Cal.  443;  Wilson  V. 
Welch,  12  Oreg.  353. 

78  Barney  v.  Keokuk,  94  U.  S.  324;  Carson  v.  Blazer,  2  Binn.  475; 
Shrunk  v.  Schuylkill  Co.,  14  Serg.  &  R.  71;  Wainwright  V.  McCullough, 
63  Pa.  St.  66;  Martin  ?;.  Evansville,  23  Ind.  85;  People  V.  Canal  Com- 
mrs.,  33  N.  Y.  461;  Martin  v.  Nance,  3  Head  650;  Wilson  v.  Forbes,  2 
Dev.  L.  30;  Goodwin  v.  Thompson,  15  Lea  209,  54  Am.  Rep.  410. 

79  Steamboat  Magnolia  v.  Marshall,  39  Miss.  109.  The  rule  that  the 
title  to  the  beds  of  those  rivers  is  in  the  riparian  owners  is  supported 
by  the  following  authorities!  Canal  Appraisers  v.  People,  17  Wend. 
595;    Ingraham   v.   Wilkins,   4   Pick.   268;   Commonwealth  v.   Alger,   7 

874 


CH.    XXIII.]  COMPONENT   PARTS   OP   A  DEED.  §    600 

should  be  uniformity  in  the  adjudications  on  this  subject  that 
the  author  is  induced  to  offer  the  following  suggestions,  which 
will  probably  point  out  a  common  meeting-ground  for  variant 
courts,  and  which  seems,  also,  to  be  consistent  with  reason  and 
the  necessities  of  life.  Only  those  streams  will  be  navigable 
streams  which  can  be  actually  navigated,  whether  the  tide 
ebbs  or  flows  in  them  or  not.  The  Supreme  Court  of  the 
United  States  has  held  that  those  rivers  which,  from  their 
location,  constitute  the  boundaries  of  States,  and  which  are 
used,  or  may  be  adopted  for  use,  in  interstate  and  foreign 
commerce,  are  navigable  streams  of  the  United  States.^"  Let 
that  be  a  controlling  principle,  and  declare  the  title  to  the 
bed  of  such  streams  to  be  in  the  riparian  States,  in  conformity 
with  the  decisions  of  the  United  States  Supreme  Court. 
Those  streams  might  very  properly  be  classed  among  the  high- 
ways of  nations,  for  the  States  in  this  connection  are  to  be 
considered  as  separate  and  independent  bodies  politic.  But 
the  t7i fro-territorial  streams  cannot  be  called  international 
highways,  and,  therefore,  the  title  to  the  soil  of  such  streams 
should  be  vested  in  the  riparian  owners,  subject  to  the  pub- 
lic easement  of  navigation. 

§  600.  Ponds  and  lakes. —  If  the  pond  or  lake  is  a  natural 
object,  the  boundary  line  is  along  the  edge  at  low  water 
mark.*^  If  the  pond  is  artificial,  the  boundary  is  through  its 
center.*^     And  if  a  natural  pond  or  lake  is  raised  by  artificial 

Cush.  5.3;  People  f.  Piatt.  17  Johns.  19.5;  Palmer  v.  Mulliaran,  3  Caines 
.31.5;  Morgan  v.  Eeading,  3  Smed.  &  M.  366;  Rhodes  v.  Otis,  33  Ala. 
.578;  Berry  v.  Snyder,  3  Bush  266;  Walker  v.  Public  Works,  16  Ohio 
540;  Ensminger  V.  People,  47  111.  384;  Norcross  V.  Griffiths,  65  Wis. 
599.     See,  Rowe  v.  Lumber  Co.  (N.  C),  50  S.  E.  Rep.  848. 

80  The  Daniel  Ball,  10  Wall.  557;  The  Montello,   11  Wall.  411. 

81  Waterman  v.  Johnson,  13  Pick.  261 ;  West  Roxbury  v.  Stoddard,  7 
Allen  167;  Manton  v.  Blake,  62  Me.  38;  Canal  Commrs.  r.  People,  5 
Wend.  446;  Wheeler  V.  Spinola,  54  N.  Y.  377;  Austin  r.  Rutland  R.  R., 
45  Vt.  215;  Primm  V.  Walker,  38  Mo.  99; 

82  Bradley  v.  Rice,  13  Me.  198;  Waterman  v.  Joh-nson,  13  Pick.  261; 
Phinney  v.  Watts,  9  Gray  269;  Wheeler  t*.  Spinola,  54  N.  Y.  377. 

875 


§  601  COMPONENT  PARTS  OF  A  DEED.      [PART  III. 

means  by  a  dam  or  trench,  the  boundary  line  will  continue  to 
be  at  low  water  mark  of  the  pond  in  its  natural  state,  and  the 
land  which  was  subsequently  left  bare  by  the  removal  of  the 
obstructions,  would  be  the  property  of  the  adjoining  riparian 
owner.**  The  conversion  of  a  fresh  water  pond  into  a  salt 
one  by  an  artificial  trench  or  channel  from  the  sea  will  not 
change  the  boundary.  But  the  boundary  changes  with  the 
natural  and  ordinary  changes  of  the  low  water  mark.®* 

§  601.  Highways. —  Where  land  is  bounded  by  a  highway, 
the  same  rules  of  construction  apply,  as  in  the  case  of  non- 
navigable  streams.  If  the  land  is  described  as  "bounding 
on,"  "running  along,"  the  highway,  and  the  lake,  the  bound- 
ary line  is  the  thread  or  center  of  the  way,  although  the 
dimensions  of  the  last  would  exclude  the  highway.  And  when 
there  is  any  doubt  as  to  the  intention  of  the  parties,  the  pre- 
sumption is  always  strong  in  favor  of  the  center  of  the  way 
being  the  boundary.*'^  But  if  the  land  is  described  as  bound- 
ing by  the  side  of  the  street,  or  the  intention  to  exclude  the 

83Hathorn  V.  Stinson,  12  Me.  183;  Bradley  v.  Rice,  13  Me.  200; 
Waterman  v.  Johnson,  13  Pick.  261.  But  later  decisions  in  these  States 
have  qualified  the  position  assumed  in  the  cases  just  cited  to  this  ex- 
tent: that  unless  there  is  something  in  the  deed  to  support  the  pre- 
sumption that  the  grantor  had  in  mind  the  natural  state  of  the  pond, 
when  he  was  describing  the  land,  the  boundary  line  will  be  the  low 
water  mark  of  *he  pond  at  the  time  of  the  conveyance.  Wood  V.  Kelley, 
30  Me,  47;  Paine  v.  Woods,  108  Mass.  170. 

8*3  Washburn  on  Real  Prop.  417;  Wheeler  v.  Spinola,  54  N.  Y.  377- 
85  Berridge  v.  Ward,  10  C.  B.  (n.  s.)  400;  Johnson  v.  Anderson,  18 
Me.  76;  Cottle  v.  Young,  59  Me.  105;  O'Linda  V.  Lathrop,  21  Pick.  298; 
Parker  v.  Framingham,  8  Mete.  267;  Fisher  v.  Smith,  9  Gray  441;  Har- 
ris V.  Elliott,  10  Pet.  53 ;  Banks  V.  Ogden,  2  Wall.  57 ;  White  v.  Godfrey, 
97  Mass.  47;  Wallace  V.  Fee,  50  N.  Y.  694;  Jackson  v.  Hathaway,  15 
Johns.  454;  Sherman  V.  McKeon,  38  N.  Y.  271;  Child  v.  Starr,  4  Hill 
369;  Winter  V.  Peterson,  24  N.  J.  L.  527;  Cox  v.  Freedley,  33  Pa,  St. 
124;  Witter  v.  Harvey,  1  McCord  67;  Trustees  v.  Louder,  8  Bush  080; 
Weisbrod  V.  C.  &  N.  W,  R.  R.,  18  Wis.  43;  Dubuque  v.  Maloney,  8  Iowa 
458.  "  A  conveyance  of  a  lot  bounded  by  a  road  vests  the  grantee  with 
the  fee  to  the  center  of  the  road."  Judgment  (1904)  86  N.  Y.  S.  759, 
42  Misc.  Rep.  358,  reversed.  Mitchell  V.  Einstein,  94  N.  Y.  S.  210. 
876 


CH.    XXin.]  COMPONENT   PARTS   OF  A   DEED.  §    601 

street  is  clearly  manifested  in  some  other  manner,  then  the 
boundary  line  will  be  the  nearest  line  of  the  street  or  high- 
way.®" The  boundary  will  not  extend  to  the  center  of  the 
highway,  if  the  grantor  only  owns  to  the  line  of  the  way." 
And  likewise,  if  a  proprietor  lays  out  several  lots,  all  front- 
ing on  a  proposed  park,  the  grantees  of  the  several  lots  will 
only  own  to  the  exterior  line  of  the  park,  and  not  to  the 
center.®^  If  the  land  is  described  as  bounding  on  a  public 
street  or  highway  or  park,  the  right  to  have  it  kept  open 
passes  to  the  grantee  as  an  appurtenant  easement.^®  But  if 
it  is  a  private  way,  a  right  of  way  will  be  aicquired  by  the 
grantee  only  upon  the  adjoining  lands  of  the  grantor.^**  If 
the  grantor  does  not  own  the  land,  no  covenant  will  be  implied 
from  the  reference  to  a  street  for  the  purpose  of  description."^^ 
■  Where  a  highway  or  street  is  referred  to  as  the  boundary  line, 
the  actual  line,  as  it  is  laid  down,  is  to  be  taken  as  the  line 
of  the  street.®^  And  although  encroachments  upon  the  high- 
way by  the  adjoining  owners  are  not  legalized  by  the  lapse 
of  time,  yet  if  a  fence  has  been  standing  for  twenty  years 

86  Salisbury  v.  G.  N.  Railway  Co.,  5  C.  B.  (N.  s.)  174;  Sibley  v. 
Holden,  10  Pick.  249;  Smith  v.  Slocomb,  9  Gray  36;  Brainard  V.  Bos- 
ton, etc.,  R.  R.,  12  Gray  410;  Morrow  v.  Willard,  30  Vt.  118;  Hoboken 
Land  Co.  v.  Kerrigan,  30  N.  J.  L.  16;  Hamlin  V.  Pairpoint  Mfg.  Co., 
141  Mass.  51. 

8T  Brainard  v.  Boston,  etc.,  R.  R.,  12  Gray  410;  Church  v.  Meeker,  34 
Conn.  426;  Dunham  V.  Williams,  37  N.  Y.  251;  Vail  v.  Long  Island  R. 
Co.   (N.  Y.),  12  N.  E.  Rep.  607. 

88  Perrin  v.  N.  Y.  Cent.  R.  R.,  40  Barb.  65 ;  Hanson  V.  Campbell,  20 
Md.  223.     See,  Mitchell  v.  Einstein,  94  N.  Y.  S.  210. 

89  Cox  V.  James,  59  Barb.  144;  3  Washburn  on  Real  Prop.  422,  423; 
Lennig  v.  Ocean  City  Assn.,  41  N.  J.  Eq.  606;  Re  Pearl  St.,  Ill  Pa.  St. 
565;  Presbyterian  Church  v.  Kellar,  39  Mo.  App.  441. 

90  Smith  V.  Howdon,  14  C.  B.  (n.  s.)  398;  Fisher  v.  Smith,  9  Gray 
444;  Winslow  V.  King,  14  Gray  323;  White  V.  Godfrey,  97  Mass.  472; 
Stark  V.  Coffin,  105  Mass.  330;  Lewis  v.  Beattie,  105  Mass.  410;  Falls 
V.  Reis,  74  Pa.  St.  439. 

91  Roberts  V.  Karr,  1  Taunt.  495;  Howe  v.  Alger,  4  Allen  200;  Brain- 
ard V.  Boston,  etc.,  R.  R.,  12  Gray  410;  Hanson  v.  Campbell,  20  Md. 
232. 

92  Bradstreet  v.  Dunham,  65  Iowa  248. 

877 


§  603  COMPONENT  PARTS  OF  A  DEED.      [PART  III. 

upon  the  highway  as  it  was  originally  laid  out,  the  fence  will 
be  considered  the  true  line,  if  the  real  boundary  cannot  be 
ascertained  by  record.®*  And  if  the  road  or  street  is  subse- 
quently abandoned,  the  adjoining  owners  will  then  hold  the 
land  over  which  the  highway  extended,  free  from  the  public 
easement.** 

§  602.  Walls,  fences,  trees,  etc. —  When  walls,  fences,  trees, 
and  the  like,  are  referred  to  as  monuments,  if  they  are  of 
considerable  thickness  or  width,  the  boundary  line  is  always 
in  the  center  of  the  monument,  as  has  been  seen  to  be  the 
case  with  streams  and  highways.®'' 

§  603.  Courses  and  distances. —  The  next  element  of  de- 
scription in  the  order  of  preference  is  the  admeasurement  of  ^ 
distances  and  the  given  courses  of  the  boundary  lines.  Where 
courses  and  distances  are  given  in  a  deed,  conveying  a  city  lot 
of  comparatively  small  dimensions,  they  are  greatly  relied 
upon  in  determining  the  boundaries.  And  where  there  are 
no  monuments,  parol  evidence  will  not  be  permitted  to  vary 
them.  Nothing  but  monuments  can  control  courses  and  lis- 
tances.®"     The  courses  and  distances  will  be  the  absolutely 

»3Hallenbeck  V.  Rowley,  8  Allen  475;  Fisher  v.  Smith,  9  Gray  441; 
Lozier  v.  N.  Y.  Cent.  R.  R.,  42  Barb.  468;  Bissell  v.  N.  Y.  Cent.  R.  R., 
23  N.  Y.  61;  Cross  v.  Morristown,  18  N.  J.  Eq.  305. 

94  Banks  V.  Ogden^  2  Wall.  57;  People  v.  Laws,  22  How.  Pr.  115; 
Wallace  v.  Fee,  50  N.  Y.  694 ;  Weisbrod  &  C.  N.  W.  R.  R.,  18  Wis.  43 ; 
Presbyterian  Church  v.  Kellar,  39  Mo.  App.  441 ;  Matt  v.  Eno,  90  N. 
Y.  S.  608,  97  App.  Div.  580.     See,  Mitchell  v.  Einstein,  94  N.  Y.  S.  210. 

95  Bradford  V.  Cressey,  45  Me.  9;  Boston  V.  Richardson,  13  Allen  154; 
Child  V.  Starr,  4  Hill  369.  "  A  spreading  hedge,  not  trimmed  every 
year,  is  a  poor  boundary  line."  Bright  v.  New  Orleans  Ry.  Co.  (La. 
1905),  38  So.  Rep.  494. 

96  Drew  V.  Swift,  46  N.  Y.  209;  Chadbourne  V.  Mason,  48  Me.  391; 
Bagley  V.  Morrill,  46  Vt.  94;  Friend  V.  Friend,  64  Md.  321 ;  Breneiser  V. 
Davis  (Pa.),  19  Atl.  Rep.  433.  "Where  calls  for  boundary  lines  are 
irreconcilably  inconsistent,  they  are  to  be  given  effect  in  the  following 
order:  (1)  Natural  objects;  (2)  artificial  marks;  (3)  courses  and 
distances."    Kleven  v.  Gunderson  (Minn.  1905),  104  N.  W.  Rep.  4. 

878 


CH.    XXIII.]  I  COMPONENT   PARTS   OF   A   DEED.  §    604 

determining  element  in  the  absence  of  monuments,  although 
the  admeasurements  are  given  as  so  many  feet,  "more  or 
lessr"  ®^  But  a  survey  is  so  liable  to  be  erroneous  through 
some  defect  in  the  instrument,  or  the  carelessness  of  the  sur- 
veyor, that  whenever  monuments  are  given,  the  monuments 
control  the  courses  and  distances,  although  the  monuments 
would  take  in  more  land  than  what  is  called  for  by  the  sur- 
vey.^* And  where  the  land  is  described  by  another's  land, 
the  latter  tract  of  land  is  a  monument  of  description,  and  the 
true  line  of  his  land  will  control  the  courses  and  distances 
given  in  the  deed.**  But  the  thing  or  object  referred  to  must, 
in  order  to  serve  as  a  monument  of  description,  be  referred 
to  in  the  deed  as  such.  The  reservation  of  the  use  of  a  well 
which  is  described  as  being  "on  the  west  line  of  the  land," 
does  not  make  the  well  a  monument  for  locating  the  bound- 
ary.^ When  the  course  is  described  as  "northerly,"  "south- 
erly," etc.,  the  line  is  always  understood  as  "due"  north,  or 
south.  But  reference  is  always  made  to  the  magnetic  merid- 
ian in  determining  the  direction  of  the  boundary  lines. ^ 

§  604.  Quantity. —  The  quantity  of  land  conveyed  is  some- 
times given;  but  where  there  is  no  covenant  as  to  quantity 

"Flagg  V.  Thurston,  13  Pick.  145;  Blaney  v.  Rice,  20  Pick.  62; 
Block  V.  Pfaff,  101  Mass.  538;  Cherry  V.  Slade,  3  Murph.  82;  Welch  v. 
Phillips,  1  McCord  215. 

88  White  V.  Williams,  48  N.  Y.  344 ;   Drew  V.  Swift,  46  N.  Y.  207 
Cronin   v.   Richardson,   8   Allen   423;    Brown   v.   Huger,   21   How.   305 
HajTies   V.   Jackson,   59   Me.    386;    Lodge   v.   Barnett,  46   Pa.    St.   484 
Colton  V.  Seavey,  22  Cal.  496;  Miller  v.  Cherry,  3  Jones  29;   Frost  V. 
Spaulding,   19  Pick.   445;   Evansville  V.   Page,   23   Ind.  527.     But  see 
contra,  Danzien  V.  Boyd,  53  N.  Y.  Super.  Ct.  398.     See,  also,  Mays  v. 
Hinchman    (W.  Va.  1905),  50  S.  E.  Rep.  823. 

»»  Peaslee  v.  Gee,  19  N.  Y.  273;  Bailey  v.  White,  41  N.  H.  343;  Park 
1?.  Pratt,  38  Vt.  552.  See,  Mays  v.  Hinchman  (W.  Va.),  50  S.  E.  Rep. 
823. 

1  Maguire  v.  Sturtevant,  140  Mass.  258. 

2  Brandt  v.  Ogden,  1  Johns.  Cas.  158 ;  Gordon  v.  Jackson,  5  Johns. 
473 ;  Jackson  v.  Reeves,  3  Caines  295 ;  Wells  v.  Company,  47  N.  H.  235 ; 
Bosworth  17.  Danzien,  25  Cal.  296. 

879 


§    605  COMPONENT  PARTS  OP  A  DEED.  [PART   III. 

this  element  of  description  is  seldom  resorted  to  in  determin- 
ing the  boundaries,  and  is  under  no  circumstances  permitted 
to  control  the  courses  and  distances  or  the  monuments,^  unless 
these  other  elements  of  description  lose  in  any  case  their 
superior  value  through  ambiguities  and  uncertainties,  when 
the  quantity  is  referred  to  in  order  to  give  certainty  to  the 
description.*  One-half  a  certain  tract  of  land,  means  one- 
half  of  a  quantity  of  land  and  cannot  be  considered  as  a 
description  by  courses  and  distances.'' 

§  605.  Reference  to  other  deeds,  maps,  etc.,  for  description. — 

If,  instead  of  containing  the  description  of  the  land  conveyed, 
the  deed  refers  to  other  deeds,  the  description  of  the  latter 
deed  will  by  such  reference  become  a  part  of  the  former,  and 
has  the  same  effect  as  if  it  had  been  inserted  in  the  sub- 
sequent deed.®  It  is  not  necessary  that  the  deed  referred  to 
be  recorded^  although  if  the  deed  referred  to  is  described 
as  being  recorded,  no  unrecorded  deed  will  answer  to 
supply  the  description  of  the  premises.^  But  the  reference 
to  another  deed  will  not  be  permitted  to  control  the  descrip- 

3  Mann  v.  Pearson,  2  Johns.  37;  Jackson  v.  DefendorflF,  1  Caines  493; 
Snow  V.  Chapman,  1  Root  528;  Commrs.  v.  Thompson,  4  McCord  434; 
Miller  v.  Bentley,  5  Sneed  671;  Wright  v.  Wright,  34  Ala.  194;  Button 
V.  Rust,  22  Texas,  133;  UflFord  v.  Wilkins,  33  Iowa  113;  Ward  v. 
Crotty,  4  Mete.  (Ky.)  103;  Llewellyn  V.  Jersey,  11  Mees.  &  W.  183; 
Hodges  V.  Rowing,  58  Conn.  12,  18  Atl.  Rep.  979;  Clute  v.  N.  Y.,  etc., 
R.  R.  Co.,  120  N.  Y.  267,  24  N.  E.  Rep.  317. 

4  Moran  17.  Lezotte,  54  Mich.  83 ;  Hall  V.  Shotwell,  66  Cal.  379 ;  Jones 
t\  Pashby,  62  Mich.  614,  29  N.  W.  Rep.  374;  Jones  v.  Motley  (Ky.),  13 
S.  W.  Rep.  432;  Davis  v.  Hess  (Mo.),  15  S.  W.  Rep.  324.  See,  Whit- 
taker  V.  Whittaker  (Mo.  1903),  74  S.  W.  Rep.  1029. 

5  Hartford  Iron  Mine  Co.  v.  Cambria  Min.  Co.  (Mich.),  45  N.  W. 
Rep.  .351.     See,  Costello  v.  Graham    (Ariz.),  80  Pac.  Rep.  336. 

«  Knight  V.  Dyer,  57  Me.  176;  Allen  v.  Bates,  6  Pick.  460;  Foss  v. 
Crisp,  20  Pick.  121;  Allen  V.  Taft,  6  Gray  552;  Perry  v.  Binney,  103 
Mass.  158 ;  Lippitt  v.  Kelly,  46  Vt.  523 ;  Rodriguez  v.  Hayes,  76  Texa.s 
225;  O'Herrin  v.  Brooks  (Miss.),  6  So.  Rep.  844;  Miller  v.  Topeka 
Land  Co.  (Kan.),  24  Pac.  Rep.  420;  McAfee  v.  Arline,  83  Ga.  645,  10 
S.  E.  Rep.  441. 

T  Simmons  v.  Johnson,  14  Wis.  526 ;  Caldwell  v.  Center,  30  Cal.  543. 
880 


CH.    XXin.]j  COMPONENT   PARTS   OF   A   DEED.  §    606 

tion  actually  contained  in  the  subsequent  deed,  so  as  to  ex- 
clude a  lot  or  parcel  of  land  described  as  a  part  of  the  subject 
of  conveyance,  and  not  mentioned  in  the  deed  referred  to.* 
In  the  same  manner,  where  a  reference  in  the  deed  is  made  to 
plans,  maps,  and  the  like,  for  the  monuments,  courses  and 
distances,  the  maps  and  plans  become  a  part  of  the  deed  of 
conveyance,  and  supply  the  description  omitted  in  the  deed.* 
And  one  map  may  be  supplemented  by  a  reference  to  some 
prior  map,  to  which  the  latter  map  constitutes  an  addition. 
In  determining  the  location  of  the  land,  both  maps  may  be 
resorted  to.^"  But  if  the  boundaries  can  be  ascertained  with- 
out reference  to  the  maps  or  plans,  they  need  not  be  produced 
in  evidence.  The  boundary  may  be  established  by  any  other 
competent  evidence.^^ 

§  606.  Appurtenants. —  Whatsoever  belongs  to  the  thing 
granted  as  a  parcel  thereof  will  pass  with  it,  though  it  is  not 
specifically  referred  to.  Thus,  houses,  window-blinds,  doors, 
mines,  crops,  and  whatever  else  constitutes  a  part  of  the 
realty,  will  pass  with  the  grant  of  the  land,  unless  expressly 
reserved.^^    It  is  also  the  general  rule,  with  very  little  qualifi- 

8  WTiitney  v.  Dewey,  15  Pick.  434;  Needham  v.  Judson,  101  Mass.  161. 

»  Kennebec  Purchase  v.  Tiffany,  1  Me.  219;  Shirras  v.  Caig,  7  Cranch 
48;  Farnsworth  v.  Taylor,  9  Gray  162;  Stetson  v.  Daw,  16  Gray  374; 
Chamberlain  v.  Bradley,  101  Mass.  191;  Fox  v.  Union  Sugar  Co.,  109 
Mass.  292;  McCausland  V.  Fleming,  63  Pa.  St.  36;  Spiller  v.  Scribner, 
36  Vt.  247;  Heffernan  V.  Otsego  Water  Power  Co.  (Mich.),  43  N.  W. 
Rep.  1096;  8.  c.  44  N,  W.  Rep.  1151;  O'Herrin  r.  Brooks  (Miss.),  6  So. 
Rep.  844;  Cullen  v.  Sprigg  (Cal.),  23  Pac.  Rep.  222;  Marvin  v.  Elliot, 
99  Mo.  616,  12  S.  W.  Rep.  899;  Chapman  v.  Polack,  70  Cal.  487;  Redd 
V.  Murry  (Cal.),  24  Pac.  Rep.  841;  Bohier  v.  Lange,  44  Minn.  281. 
See,  Neumeister  v.  Goddard  (Wis.  1905),  103  N.  W.  Rep.  241;  Snooks 
V.  Merryfield,  44  S.  E.  Rep.  277. 

10  Slate  17.  Schwin,  65  Wis.  207. 

11  Deery  v.  Cray,  10  Wall.  263. 

izFarrar  v.  Stackpole,  6  Me.  1.54;  Bracket  v.  Goddard,  54  Me.  313; 
Goodrich  v.  Jones,  2  Hill  142;  Powell  v.  Rich,  41  111.  406;  Noble  v. 
Bosworth,  19  Pick.  314;  Daniels  v.  Pond,  31  Pick.  367;  Foote  v.  Colvin, 
3  Johns.  216;  Austin  v.  Sawyer,  9  Cow.  40;  Bond  v.  Coke,  71  N.  C.  97; 

56  881 


§  606  COMPONENT  PARTS  OP  A  DEED.       [PART  111. 

cation,  that  whatever  is  appendant  or  appurtenant  to  the  thing 
granted  will  pass  with  it  to  the  grantee  as  an  appurtenant. 
All  easements  attached  to  the  land  granted  as  the  dominant 
estate  are  appurtenant.^'  And  whether  a  certain  right  is  ap- 
purtenant depends  upon  the  condition  of  the  property  at  the 
time  of  the  conveyance,  and  how  far  the  right  is  necessary  to 
the  complete  enjoyment  of  the  property.  If,  therefore,  cer- 
tain easements  or  servitudes  are  enjoyed  by  the  grantor  in  con- 
nection with  the  use  of  the  land,  those  easements  will  pass  to 
the  grantee.  And  even  where  the  servient  estate  is  also  his 
property,  the  equitable  easement  arising  from  the  subservience 
of  one  piece  of  land  to  the  other  will  pass  to  the  grantee  of  the 
latter,  if  it  is  essential  to  his  full  enjoyment  of  the  land 
granted."  Although  land  cannot  be  said  to  pass  as  appur- 
tenant to  land,  if  the  land,  expressly  granted,  does  not  admit 
of  a  reasonable  enjoyment  without  some  adjacent  land,  which 
has  been  used  constantly  with  the  land  granted,  it  will  pass  as 
parcel.^'^     But  where   an   easement  over  the  ~  adjacent  land 

Ring  V.  Billings,  51  111.  475;  Lewis  V.  Lyman,  22  Pick.  436;  Fay  V. 
Muzzey,  13  Gray  53;  Brookhaver  V.  Smith,  118  N.  Y.  564;  23  N.  E. 
Eep.  1002;  Patterson  V.  Harlan,  124  Pa.  St.  67. 

13  Plant  V.  James,  5  B.  &  Ad.  791;  Harris  v.  Elliott,  10  Pet.  25; 
Philbrick  v.  Ewing,  97  Mass.  133;  Kent  v.  Wait,  10  Pick.  138;  J'ope  v. 
O'Hara,  48  N.  Y.  455;  Jackson  V.  Hathaway,  15  Johns.  447;  Pickering 
V.  Stapler,  5  Serg.  &  R.  107;  Whalley  V.  Tompson,  1  Bos.  &  P.  371; 
Grubb  V.  Grubb,  101  Pa.  St.  11. 

"  Brigham  v.   Smith,  4  Gray  297 ;   Richardson  V.  Bigelow,   15  Gray 
156;  James  V.  Plant,  5  A.  &  E.  749;  Prestcott  v.  Whit,  21  Pick.  343 
Hapgood   V.   Brown,    102   Mass.   453;    Woodman   v.   Smith,  53  Me.   81 
Thompson  v.  Banks,  43  N.  H.  540 ;  Voorhies  V.  Burshard,  55  N.  Y.  102 
Bliss  V.  Kennedy,  43  111.  71;  White  v.  Barlow,  72  Ga.  887.     See  ante, 
Sec.  432. 

15  Woodman  v.  Smith,  53  Me.  81;  Allen  V.  Scott,  21  Pick.  25;  Esty 
r.  Currier,  98  Mass.  501;  Webster  v.  Potter,  105  Mass.  414;  Whitney  v. 
Olney,  3  Mason  282 ;  Davis  v.  Handy,  37  N.  H.  65 ;  Thompson  v.  Banks, 
43  N.  H.  540;  Voorhies  v.  Burshard,  55  N.  Y.  102;  Avon  Co.  v.  An- 
drews, 30  Conn.  476;  Bacon  v.  Bowdoin,  22  Pick.  401;  Jackson  v.  Hatha- 
way, 15  Johns.  447;  Riddle  r.  Littlefield,  53  N.  H.  508;  Kimbell  V. 
Rodgers  (Ala.),  7  So.  Rep.  241.  See  contra,  Hodgens  v.  Powell  (Ark.), 
11  S.  W.  Rep.  574. 
882 


CH.    XXni.]  COMPONENT  PARTS   OP  A   DEED.  §    607 

would  provide  for  the  grantee  a  reasonably  satisfactory  en- 
joyment of  the  land  granted,  the  freehold  in  the  soil  will  not 
pass.  The  grantee  would  only  acquire  an  easement  therein.^* 
But  a  claim  for  damages  for  the  closing  of  a  road  does  not 
pass  as  appurtenant  to  the  grantee,  simply  because  the  claim 
was  not  awarded  before  the  transfer  of  the  property." 

§  607.  Necessity  of  use  controls  gprant  of  easements,  as  ap- 
purtenant.—  Somewhat  at  variance  with  the  doctrine  of  the 
preceding  section,  as  to  the  conveyance  of  easements,  as 
"appurtenant"  to  a  conveyance  of  the  realty,  without  an  ex- 
press reservation  thereof,  is  the  well  considered  case  of  Ogden 
V.  Jennings,^^  where  the  Court  of  Appeals,  of  New  York, 
observed : 

"Easements  exist  as  appurtenant  to  a  grant  of  lands,  and 
as  arising  by  implication,  only  by  reason  of  a  necessity  to  the 
full  enjojinent  of  the  property  granted.  Nothing  passes  by 
implication  or  as  incident  appurtenant  to  the  lands  granted, 
except  such  rights,  privileges  and  easements  as  are  directly 
necessary  to  the  proper  enjoyment  of  the  granted  estate.  A 
mere  convenience  is  not  sufficient  to  create  or  convey  a  right 
or  easement,  or  impose  burdens  on  lands  other  than  those 
granted,  as  incident  to  the  grant.  In  all  cases,  the  question  of 
necessity  controls."  i 

This  language  is  adopted  with  approval,  by  the  Supreme 
Court  of  Missouri,  in  a  well  considered  case,^^  where  water 
pipes  and  mains,  laid  under  a  license  from  a  city,  into  and 
under  lots  adjoining  the  water  main,  in  a  street  were  held 

i«  Stetson  V.  Daw,  16  Gray  373;  Munn  v.  Worrall,  53  N.  Y.  46; 
Jamaica  Pond  v.  Chandler,  9  Allen  164 ;  Graves  v.  Amoskeag  Co.,  44  N. 
H.  464;  Owen  r.  Field,  102  Mass.  104;  Curtis  f.  Norton,  58  Mich.  411; 
Cluett  r.  Sheppard   (111.),  23  N.  E.  Rep.  589. 

"King  f.  St.  Patrick's  Cathedral,  50  N.  Y.  Supr.  406. 

18  62  N.  Y.  526;  cited  and  approved  in  Barrett  v.  Bell,  82  Mo.  114. 

i»Mulrooney  v.  Obear,  171  Mo.  613,  71  S.  W.  Rep.  1019.  See,  also. 
Dodge  City  Water  &  Light  Co.  v.  Alfafa  Irr.  &  Land  Co.  (Kan.  1902), 
67  Pac.  Rep.  462. 

883 


5;  COS  COMPONENT  PARTS  OF  A  DEED.      [PART  III. 

not  to  pass,  as  appurtenant  to  a  conveyance  of  the  realty,  by 
the  vendor,  in  a  sale  of  the  property,  but  were  the  subject  of  a 
separate  transfer,  under  bill  of  sale  by  the  owner  to  a  third 
person. 

§  608.  Exception  and  reservation. —  An  exception  to  a  grant 
withdraws  from  the  operation  of  the  conveyance  some  part 
or  parcel  of  a  thing  which  is  granted,  and  which  but  for  the 
exception  would  have  passed  to  the  grantee  under  the  general 
description.  The  part  excepted  is  already  in  existence,  and 
is  said  to  remain  in  the  grantor.  The  grant  has  no  effect 
upon  it.  A  reservation  is  the  creation,  in  behalf  of  the 
grantor,  of  some  new  right  issuing  out  of  the  thing  granted, 
usually  an  incorporeal  hereditament,  something  which  did 
not  exist,  as  an  independent  right,  before  the  grant.^'^  Some- 
times the  terms  exception  and  reservation  are  used  synony- 
mously, but  the  distinction  above  given  is  proper  and  essential. 
A  reservation  is  in  the  nature  of  a  grant  to  the  grantor,  and 
therefore  requires  the  same  words  of  limitation  as  in  the 
direct  grant  to  the  grantee.  But  an  exception  requires  no 
words    of    limitation.^^    Both    reservations    and    exceptions 

20Greenleaf  v.  Birth,  6  Pet.  302;  Pettee  v.  Hawes,  13  Pick.  323; 
Dyer  v.  Santford,  9  Mete.  395;  Stockbridge  Iron  Co.  V.  Hudson  Iron 
Co.,  107  Mass.  321;  Dennis  V.  Wilson,  107  Mass.  591;  Emerson  v. 
Mooney,  50  N.  H.  316;  Munn  V.  Worrall,  53  N.  Y.  46;  Whitaker  V. 
Brown,  46  Pa.  St.  197 ;  Bray  v.  Hussey,  83  Me.  329 ;  Behymer  v.  Odell, 
31  111.  App.  350;  Wood  v.  Boyd  (Mass.),  13  N.  E.  Rep.  476;  Weekland 
V.  Cunningham  (Pa.),  7  Atl.  Rep.  148;  Kincaid  v.  McGowan  (Ky.), 
4  S.  W.  Rep.  802;  King  v.  Wells,  94  N.  C.  344;  Coal  Creek  Mining  Co. 
V.  Heck,  15  Lea  497;  Jones  v.  Delassus,  84  Mo.  541;  Truett  v.  Adams, 
66  Cal.  218;  Bradley  v.  Tittabawassee  Boom  Co.  (Mich.),  46  N.  W. 
Rep.  24;  Mayo  v.  Newhofif  (N.  J.),  19  Atl.  Rep.  837;  Gould  V.  Howe 
(111.),  23  N.  E.  Rep.  602;  Atkinson  v.  Sinnott  (Miss.),  7  So.  Rep.  289; 
Grand  Tower,  etc.,  Co.  v.  Gill,  11  111.  541;  City  of  New  York  v.  Law, 
125  N.  Y.  380;  Culter  v.  Tuft,  3  Pick.  272,  278;  Doe  v.  Lock,  4  Nev. 
&  M.  807 ;  Pettee  v.  Hawes,  13  Pick.  323,  326 ;  Hurd  v.  Curtis,  7  Met. 
110;  3  Washburn  on  Real  Prop.  (4  ed.)  440;  Shep.  Touch.  80;  Moulton 
V.  Trafton,  64  Me.  218.  For  reservation  of  homestead  in  granted  prem- 
ises, see.  Helm  v.  Kaddetz,  107  111.  App.  413. 

21  Seymour  v.  Courtenay,  5  Burr.  2814;  Jamaica  Pond  v.  Chandler,  9 
S84 


CH.    XXIII.]  COMPONENT   PARTS   OF   A   DEED.  §    608 

are  to  be  distinguished  from  conditions,  which  limit 
the  grantee's  use  of  the  land.  Such  a  condition  does 
not  give  to  the  grantor  any  right  which  he  may  assign 
to  another.^^  A  reservation  can  only  be  made  to  the 
grantor,  and  must  issue  out  of  the  land  granted.  It  can- 
not be  reserved  to  a  stranger  or  out  of  another  estate, 
although  an  attempted  reservation  out  of  another's  estate  may 
operate  as  an  independent  grant  to  the  grantor  in  a  deed  of 
indenture  executed  by  both  parties.^^  The  reservation 
properly  appears  in  the  reddendum  clause  of  the  deed, 
while  the  exception  is  properly  incorporated  in  the  prem- 
ises, and  constitutes  a  part  of  the  description.  But  this 
is  a  mere  matter  of  form,  and  is  not  essential  or  important  in 
determining  whether  a  clause  creates  an  exception  or  a  reser- 
vation.^^  If  an  exception  is  repugnant  to  the  original  grant, 
it  is  void.  Thus,  if  there  be  a  specific  grant  of  twenty  acres 
of  land,  the  exception  of  one  acre  will  be  repugnant  and 

Allen  170;  Putnam  v.  Tuttle,  10  Gray  48;  Curtis  v.  Gardner,  13  Mete. 
461;  White  V.  Foster,  102  Mass.  378;  Stockbridge  Iron  Co.  V.  Hudson 
Iron  Co.,  107  Mass.  321;  Keeler  v.  Wood,  30  Vt.  242;  Emerson  v. 
Mooney,  50  N.  H.  316;  Hornbeek  V.  Westbrook,  9  Johns.  73;  Wheeler 
V.  Brown,  47  Pa.  St.  197;  Smith  v.  Ladd,  41  Me.  314;  Randall  v.  Ran- 
dall, 59  Me.  339 ;  Bean  v.  French,  140  Mass.  229. 

22  Westmoreland,  etc.,  Nat.  Gas  Co.  v.  De  Witt,  130  Pa.  St.  235.  See 
Bray  v.  Hussey,  83  Me.  329;  Stillwell  v.  St.  L.,  etc.,  Ry.  Co.,  39  Mo. 
App.  221. 

23Dand  v.  Kingscote,  6  Mees.  &  W.  174;  Pettee  v.  Hawes,  13  Pick. 
322;  Dyer  v.  Sanford,  9  Mete.  395;  Bridger  v.  Pierson,  45  N.  Y.  601; 
Hill  V.  Lord,  48  Me.  95;  Hall  v.  Hall  (Miss.),  5  So.  Rep.  523;  Wetmore 
V.  Fiske,  15  R.  I.  354,  5  Atl.  Rep.  375  j  Herbert  v.  Pue  (Md.),  20  Atl. 
Rep.  182;  Fisher  v.  Laack  (Wis.),  45  N.  W.  Rep.  104;  Dyer  v.  San- 
ford, 9  Met.  395;  Hornl)eck  v.  Westbrook,  9  Johns.  74;  Petition  of 
Young,  11  R.  I.  6.36;  Bridger  v.  Pierson,  1  Lans.  481;  Illinois  R.  R. 
Co.  V.  Indiana  R.  R.  Co.,  85  111.  211;  West  Point  Iron  Co.  v.  Reymert, 
45  N.  Y.  703.  And  see  Bridger  v.  Pierson,  45  N.  Y.  601;  Brossart  v. 
Corlett,  27  Iowa  288. 

24  Gage  17.  Barnes  (N.  H.),  9  Atl.  Rep.  545.  "The  words  of  a  deed, 
'  The  grantor  hereby  reserves  the  ownership  of  the  well  on  or  near  the 
east  line  of  the  lot  hereby  conveyed,'  will  be  treated  as  an  exception." 
Elsea  V.  Adkins  (Ind.  1905),  74  N.  E.  Rep.  242. 

885 


§  609  COMPONENT  PARTS  OF  A  DEED.      [PART  III. 

therefore  void.  But  if  the  grant  is  of  a  tract  of  land  and  the 
quantity  is  mentioned  only  incidentally,  an  exception  of  one 
or  two  acres  is  not  repugnant,  since  the  two  elements  of  the 
description  can  be  reconciled  so  that  both  can  take  effect.^' 
And  where  a  part  or  parcel  of  the  land  granted  is  excepted 
from  the  grant  or  right  reserved  to  the  grantor,  not  only 
that  specific  right  or  estate  remains  in  the  grantor,  but  every 
other  right  which  is  appurtenant  thereto,  and  which  is  neces- 
sary to  the  reasonable  enjoyment  of  the  same.^"  But  where  it 
is  shown  that  the  grantor  in  excepting  a  part  of  the  land  only 
intended  to  except  an  easement,  such  as  a  right  of  way  over 
the  excepted  parcel,  the  title  to  the  soil  of  the  excepted  parcel 
is  held  to  pass  to  the  grantee,  subject  only  to  the  easement." 
And  if  the  grantor's  estate  in  the  land  excepted  is  a  reversion 
or  remainder,  such  reversion  or  remainder  will  be  excluded 
from  the  grant,  to  the  same  extent  as  if  it  had  been  an  estate 
in  possession. ^^  It  is  also  possible  to  except  different  interests 
in  the  same  property  from  the  operation  of  the  grant,  when 
such  intention  is  made  plain. ^® 

§  609.  Habendum. —  The  hahejidum  is  the  clause  which  in 
a  deed  follows  the  words  "to  have  and  to  hold,"  and  which 
defines  the  quantity  of  interest  or  the  estate  which  the  grantee 
is  to  have  in  the  property  granted.  "What  are  the  words  of 
limitation  usually  employed  in  limiting  estates,  have  been 
already  given  in  the  preceding  chapters  on  the  different 
estates,  and  need  not  be  repeated  here.     The  habendum,  al- 

25  Shep.  Touch.  79 ;  Cutler  V.  Tufts,  3  Pick.  272 ;  Sprague  V.  Snow,  4 
Pick.  54;  McAfee  V.  Arline,  83  Ga.  645,  10  S.  E.  Rep.  602;  Koenigheim 
V.  Miles,  67  Texas  113,  2  S.  W.  Rep.  81;  Brown  v.  Rickard,  107  N.  C. 
639. 

2«Dand  v.  Kingscote,  6  Mees.  &  W.  174;  Sanborn  v.  Hoyt,  24  Me. 
118;  Pettee  v.  Hawes,  13  Pick.  322;  Allen  V.  Scott,  21  Pick.  25;  Noble 
V.  111.  Cent.  R.  R.  Co.,  Ill  111.  437;  McBrown  v.  Dalton,  70  Cal.  89,  11 
Pac.  Rep.  583. 

27  Winston  V.  Johnson,  42  Minn.  398,  45  N.  W.  Rep.  958. 

28  Kimball  v.  Withington,  141  Mass.  376. 

29Burwell  t?.  Snow,  107  N.  C.  82;  Price  v.  King,  44  Kan.  639. 
886 


CH.    XXIII.]  COMPONENT  PARTS   OF   A  DEE©.  §    609 

though  properly  constituting  an  independent  clause  in  a  deed, 
is  not  absolutely  necessary.  The  estate  granted  may  be  limit- 
ed in  the  premises,  and  the  habendum  altogether  omitted.^" 
And  so  unimportant  is  the  habendum,  that  if  it  is  repugnant 
to  the  limitations  appearing  in  the  premises  it  will  have  no 
effect;  an  absolutely  repugnant  habendum  always  yields  to 
the  terms  of  the  premises.^^  But  if  by  any  fair  and  reason- 
able construction  the  premises  and  habendum,  may  be  recon- 
ciled so  that  both  can  stand,  then  effect  will  be  given  to  both. 
If,  therefore,  the  limitation  in  the  premises  is  in  general  terms, 
as  to  A.  and  his  heirs  generally,  and  the  habendum  limits  the 
estate  to  A.  and  the  heirs  of  his  body,  since  the  habendum  is 
not  necessarily  contradictory  of  the  premises,  it  will  have  its 
proper  effect,  and  the  estate  granted  will  be  an  estate-tail.^'' 
But  if  the  premises  contain  a  specific  limitation,  and  is  fol- 
lowed by  a  more  general  limitation  in  the  habendum,  the  latter 
limitation  cannot  enlarge  the  estate  granted  by  the  premises.^' 
It  has  however  been  held  that  a  fee  simple  has  been  con- 
veyed, where  the  premises  granted  the  land  to  A.  and  her 
children  and  assigns  forever,  and  the  habendum  read  "  to  A. 

30  3  Washburn  on  Real  Prop.  366,  367,  436 ;  Co.  Lit.  6  a ;  Kenworthy 
T.  TuUis,  3  Ind.  96. 

31  Flagg  V.  Eames,  40  Vt.  23;  Nightingale  V.  Hidden,  7  R.  I.  118; 
Tyler  v.  Moore,  42  Pa.  St.  376 ;  Walters  v.  Breden,  70  Pa.  St.  237 ;  Ra1> 
liffe  V.  Marrs,  87  Ky.  26;  Smith  v.  Smith  (Mich.),  40  N.  W.  Rep.  21; 
Nightingale  r.  Hidden,  7  R.  I.  118;  Walters  v.  Breden,  70  Pa.  St.  237; 
4  Cruise,  272;  Riggin  v.  Love,  72  HI.  553;  Carson  v.  McCaslin,  60  Ind. 
337. 

32  Berry  V.  Billings,  44  Me.  423 ;  Jamaica  Pond  v.  Chandler,  9  Allen 
168;  Ford  V.  Flint,  40  Vt.  382;  Moss  V.  Sheldon,  3  Watts  &  S.  162; 
Montgomery  V.  Sturdivant,  41  Cal.  290;  Jamaica  Pond  V.  Chandler,  9 
Allen  168 ;  Co.  Lit.  6a;  1  Wood  on  Conveyancing,  224 ;  Lee  v.  Tucker, 
55  Ga.  9;  Riggin  v.  Love,  72  111.  553;  3  Prest.  Abst.  Tit.  43.  See 
Carson  v.  McCaslin,  60  Ind.  334;  Jackson  v.  Ireland,  3  Wend  99;  Cor- 
bin  V.  riealey,  20  Pick.  514.     See  Utter  v.  Sidman,  172  Mo.  229. 

33Shep.  Touch.  76;  Nightingale  v.  Hidden,  7  R.  I.  118;  Walters  t?. 
Breden,  70  Pa.  St.  237;  3  Washburn  on  Real  Prop.  439;  Whitby  v. 
Duffy  (Pa.),  19  Atl.  Rep.  1065.  See,  Hall  v.  Wright  (Ky.),  87  S.  W. 
Rep.  1129. 

887 


§  610  COMPONENT  PARTS  OP  A  DEED,      |  PART  III. 

and  her  heirs  and  assigns  forever."'*  The  habendum  cannot 
serve  to  pass  any  other  parcels  of  land  than  those  which  are 
described  in  the  premises,  nor  to  change  the  grantees,  or  their 
interests,  so  as  to  make  them  tenants  in  severalty,  where  by 
the  premises  they  were  tenants  in  common,^'^  although  it  is 
probable  that  the  habendum  may  serve  to  change  the  char- 
acter of  a  joint  estate  from  a  joint-tenancy  to  a  tenancy  in 
common,  and  to  name  the  grantees,  where  their  names  were 
omitted  from  the  premises.'^  The  habendum  may  also  be 
made  to  qualify  and  limit  the  operation  of  the  premises  to  the 
intended  operation  of  the  habendum.^''  The  habendum  also 
contains  generally  the  declarations  of  the  uses  and  trusts, 
subject  to  which  the  grantee  is  to  hold  the  estate  conveyed. 
But  the  declaration  may  appear  in  any  other  part  of  the  deed 
and  be  equally  effective.'* 

§  610.  Reddendum. —  This  is  the  clause  which  contains  the 
reservations  and  follows  the  habendum.  The  subject  of  reser- 
vations, and  their  points  of  difference  from  exceptions,  have 
already  been  discussed.  The  reservation  may  be  of  rent,  or 
of  any  other  easement,  or  other  ifiterest,  or  estate  in  land."" 

s^Hines  v.  Mansfield,  96  Mo.  399. 

35  4  Cruise  Dig.  265;  Co.  Lit.  26  b,  Butler's  note,  154;  Greenwood  r. 
Tyler,  Cro.  Jac.  564;  Hafner  v.  Irwin,  3  Dev.  &.  B.  434.  See  Den  r. 
Helmes,  3  N.  J.  L.  1050;  Swazey  v.  Brooks,  34  Vt.  451;  McCurdy  v. 
Alpha  Mining  Co.,  3  Nev.  27.  "  Where  the  granting  clause  and  the 
habendum  of  a  deed  are  irreconcilable,  and  it  is  not  apparent  from 
the  other  parts  of  the  deed  which  the  grantee  intended  should  control^ 
the  granting  clause  will  prevail."  Hall  v.  Wright  (Ky.  1905),  87  S. 
Vf.  Rep.  1129,  27  Ky.  Law  Rep.  1185. 

3«  Tyler  v.  Moore,  42  Pa.  St.  388;  Irwin  V.  Longworth,  20  Ohio  581; 
Spyve  V.  Tonham,  3  East  115;  1  Wood  on  Conveyancing,  206,  212;  3 
Washburn  on  Real  Prop.  (4  ed.)  438.  Contra,  Bustard  v.  Coulter,  Cro. 
Eliz.  902,  903;  Berry  V.  Billings,  44  Me.  424;  Sumner  v.  Williams,  8 
Mast.   174. 

37  Moss  V.  Sheldon,  3  Watts  &  S.  162;  Tyler  v.  Moore,  42  Pa.  St.  374. 
But  it  can  never  extend  the  subject-matter  beyond  the  limitation  in  the 
premises.     Manning  v.  Smith,  6  Conn.  232. 

88  Nightingale  v.  Hidden,  7  R.  I.  118;  3  Washburn  on  Real  Prop.  440. 

39  See  ante.  See.  606. 
888 


CH.    XXIII.]  COMPONENT   PARTS   OF   A   DEED.  §    611 

§  611.  Conditions. —  The  reddendum  in  an  orderly  deed  is 
followed  by  the  condition,  if  one  is  annexed  to  the  estate 
granted.  What  are  valid  conditions,  and  what  is  their  legiti- 
mate effect  upon  the  estates,  to  which  they  are  attached,  have 
been  already  explained."*"  It  needs  only  to  be  added,  that 
mere  recitals  of  the  object  of  the  grant  do  not  constitute  con- 
ditions.*^ 

*<>  See  ante,  Sees.  200,  209. 

41  Kelley  v.  McBlain,  42  Kan.  764,  22  Pac.  Rep.  994 ;  Miller  v.  Board 
of  Supervisors  (Miss.),  7  So.  Rep.  429. 

889 


SECTION  III. 

COVENANTS  IN  DEEDS. 

Section  612.  General  statement. 

613.  Covenant  enlarging  the  estate. 

614.  Covenant  of  seisin  and  right  to  convey. 

615.  What  facts  constitute  a  breach. 

616.  Covenant  against  incumbrances. 

617.  What    circumstances    constitute    a    breach    of    covenant 

against  incumbrances. 

618.  Covenant  for  quiet  enjoyment. 

619.  Covenant  of  warranty. 

620.  The  character  of  the  covenant  of  warranty. 

621.  The  feudal  warranty. 

622.  Special  limited  covenants  of  title  —  Exceptions  to  opera- 

tion of  covenants. 

623.  Implied  covenants. 

624.  Who  may  maintain  actions  on  covenants  of  warranty. 

625.  Damages,  what  may  be  recovered. 

626.  What  covenants  run  with  the  land. 

627.  When  breach  of  covenant  works  a  forfeiture  of  estate. 

§  612.  General  statement. —  After  the  parts  of  a  deed,  al- 
ready explained,  are  usually  inserted  the  covenants,  including 
covenants  of  title.*^  As  a  general  proposition,  subject  to  the 
qualification  to  be  hereafter  mentioned,  if  the  deed  contained 
no  express  covenants  of  title  there  is  no  implied  warranty  of 
title,  and  the  grantee  is  without  remedy  against  the  grantor 
if  the  title  should  fail.*'  Covenants  of  title  are,  therefore, 
generally  used,  and  a  warranty  deed  is  generally  demanded. 
In  order  that  a  covenant  may  be  valid,  the  deed  in  which  it 
is  contained  must  be  valid.**  There  are  five  principal  cove- 
rs See  post,  Sec.  623. 

*3  3  Washburn  on  Real  Prop.  447 ;  Williams  on  Real  Prop.  443,  447. 
44  Co.  Lit.  386  a;  3  Washburn  on  Real  Prop.  447;  Scott  v.  Scott,  70 
Pa.  St.  248. 
890 


OH.    XXIII.]  COVENANTS   IN   DEEDS.  §    614 

nants,  usually  found  in  modern  conveyances,  viz. :  covenants 
of  seisin,  right  to  convey,  against  incumbrances,  for  quiet 
enjoyment,  and  warranty.  In  the  Western  and  Southern 
States  the  last  covenant  is  generally  the  only  one  employed. 
But  the  others  are  recognized  in  all  the  States,  and  in  the 
Northern  and  Middle  States,  except  Pennsylvania,  it  is  cus- 
tomary to  employ  most,  if  not  all,  of  the  covenants  above 
enumerated.*'^  Covenants  of  seisin  and  the  right  to  convey 
are  held  to  be  practically  synonymous,  and  may  be  discussed 
together.** 

§  613.  Covenant  enlarging  the  estate. —  Where  the  deed 
shows  specifically  what  is  the  quantity  of  estate  granted,  the 
covenants  cannot,  by  variation  in  the  description  of  the  estate, 
enlarge  it.  But  if  there  is  a  general  grant  without  special 
words  of  limitation,  a  general  covenant  of  warranty  to  the 
grantee  and  his  heirs  may  act  as  an  estoppel  in  passing  the 
inheritance  to  the  grantee,  although  words  of  limitation  are 
required  in  the  creation  of  a  fee,  and  there  are  none  in  the 
premises  or  the  habendum." 

§  614.  Covenants  of  seisin  and  right  to  convey. —  This  is  a 
general  covenant  that  the  grantor  is  lawfully  seised,  and  had 
a  right  to  convey  at  the  time  of  the  conveyance.  If  the 
grantor  is  not  then  possessed  of  the  legal  title,  and  is  not  in 
possession  of  the  premises,  the  covenant  is  broken  as  soon  as 
made,  and  the  grantee,  and  no  one  else,  may  at  once  bring  an 

<8  Williams  on  Real  Prop.  447,  Rawle'a  note ;  Colby  v.  Osgood,  29 
Barb.  339;  Foote  v.  Burnett,  10  Ohio  317;  Van  Wagner  v.  Van  Nostrand, 
19  Iowa  462;  Armstrong  v.  Darby,  26  Mo.  517. 

*«  Slater  v.  Rawson,  1  Mete.  455 ;  Raymond  v.  Raymond,  10  Gush. 
134;  Brandt  v.  Foster,  5  Iowa  294.  Contra,  Richardson  v.  Dorr,  6  Vt. 
21.  See,  for  covenants  under  N.  Y.  Statute,  Cassada  v.  Stable,  90  N. 
Y.  S.  533. 

*7  Ferrett  v.  Taylor,  9  Cranch  53 ;  Blanchard  v.  Brooks,  12  Pick.  87 ; 
Mills  V.  Catlin,  22  Vt.  104;  Adams  v.  Ross,  30  N.  J.  L.  509;  Winborne 
V.  Downing,  105  N.  C.  20;  Ricks  V.  Pulliam,  94  N.  C.  225.  But  see, 
Carrough  v.  Hamell   (Mo.  App.  1904),  84  S.  W.  Rep.  96. 

891 


§  614  COVENANTS  IN  DEEDS.  [PART  III. 

action  for  the  breach.**  If  the  grantor  has  possession  at  the 
time,  but  holds  adversely  to  the  owner  of  the  paramount  title, 
it  has  generally  been  held  that  the  mere  existence  of  an  out- 
standing title  does  not  constitute  a  breach  of  the  covenant 
But  whether  such  adverse  possession  and  defeasible  seisin  are 
a  suflficient  compliance  with  the  obligation  of  the  covenant, 
has  met  with  a  different  construction  by  the  different  courts. 
It  has  been  held  in  some,  perhaps  most  of  the  States,  that  the 
covenant  of  lawful  seisin  is  satisfied  by  the  possession  of 
actual  seisin  though  it  is  tortiously  acquired,  and  that  a  sub- 
sequent eviction  of  the  tenant  constitutes  no  breach  of  the 
covenant  of  seisin.*®  If  this  be  the  proper  construction,  then 
a  covenant  of  seisin,  or  of  lawful  seisin,  is  broken,  if  at  all, 
as  soon  as  it  is  made,  and,  in  conformity  with  the  general 
common-law  rule  in  respect  to  the  non-assignability  of  broken 
covenants,  cannot  pass  to  the  assignees  of  the  grantee.  If  the 
covenant  is  broken,  the  grantee  has  nothing  which  he  can 
convey.''"  But  it  is  maintained  by  the  courts  of  England,  and 
some  of  the  United  States,  that  a  covenant  of  lawful  seisin 
is  both  present  and  future  in  its  operation ;  that  if  the  grantor 
has  the  actual  seisin  it  is  not  immediately  broken,  but  is  sub- 
sequently broken  if  the  grantee  or  his  assigns  are  evicted  by 
the  assertion  of  the  paramount  title.     Being   future  in  its 

48  Pollard  r.  Dwight,  4  Cranch  430 ;  Bartholomew  v.  Candee,  14  Pick. 
170;  Greenby  v.  Wilcocks,  2  Johns.  Ij  Dickinson  V.  Hoomes,  8  Gratt. 
397;  Devore  v.  Sunderland,  17  Ohio  60. 

49  Greenby  v.  Wilcox,  2  Johns.  1;  Withy  v.  Munford,  5  Cow.  137; 
Beddoe  V.  Wadsworth,  21  Wend.  124;  Raymond  v.  Raymond,  10  Gush. 
134;  Wilson  V.  Widenham,  51  Me.  567;  Wilson  V.  Cochrane,  46  Pa.  St. 
229;  Bimey  v.  Hann,  3  A.  K.  Marsh.  324;  Wheaton  v.  East,  5  Yerg.  41; 
Richard  V.  Brent,  59  111.  45,  14  Am.  Rep.  1 ;  Salmon  v.  Vallejo,  41  Gal. 
481;  Wait  V.  Maxwell,  5  Pick.  217,  16  Am.  Dec.  391;  Griffin  V.  Fair- 
brother,  1  Fairf .  59 ;  Wheeler  v.  Hatch,  3  Fairf .  389 ;  Boothby  v.  Hatha- 
way, 20  Me.  255;  Cushman  V.  Blanchard,  2  Greenl.  268,  11  Am.  Dec. 
76;  Wilson  v.  Widenham,  51  Me.  567;  Ballard  v.  Child,  34  Me.  355; 
Backus  V.  McCoy,  3  Ohio  211,  17  Am.  Dec.  585;  Kirkendall  v.  Mitchell, 
3  McLean,  145. 

BORedwine  v.  Brown,  10  Ga.  311;  Ross  v.  Turner,  7  Ark.  132. 
892 


CH.    XXIII.]  COVENANTS    IN   DEEDS.  §    614 

operation,  it  is  held  in  those  States  to  pass  to  the  assignee  with 
a  grant  of  the  estate.'^^  The  failure  to  distinguish  between  a 
covenant  of  lawful  seisin  and  of  hidefeasihle  seisin  in  the 
earlier  cases  no  doubt  gave  rise  to  this  variance  of  judicial 
opinion.  The  better,  and  what  is  deemed  to  be  the  American, 
doctrine  is  that  the  covenant  of  lawful  seisin  does  not  cove- 
nant for  the  conveyance  of  an  indefeasible  estate,  and  is, 
therefore,  not  broken  by  a  subsequent  eviction  of  the  grantee. 
To  hold  that  the  covenant  of  seisin  means  an  indefeasible 
seisin  would  give  to  that  covenant  the  same  extensive  opera- 
tion as  the  covenant  of  warranty.  Everywhere  in  the  United 
States,  if  the  grantor  expressly  or  impliedly  covenants  that 
he  is  seised  of  an  indefeasible  estate,  it  is  a  future  covenant 
and  runs  with  the  land.  Any  one  who  holds  under  the  cove- 
nantee may  sue  on  the  covenant,  whenever  he  has  been  evicted 
by  the  paramount  title.**^ 

51  Kingdon  v.  Nottle,  1  Maule  &  S.  355 ;  Martin  v.  Baker,  5  Blackf. 
232;  Coleman  V.  Lyman,  42  Ind.  289;  Great  Western,  etc.,  Co.,  v.  Saas, 
24  Ohio  St.  542;  Schofield  V.  Homestead  Co.,  32  Iowa  317,  7  Am.  Rep. 
197;  Mills  V.  Catlin,  22  Vt.  106;  Kineaid  V.  Brittain,  5  Sneed  119;  Pol- 
lard V.  Dwight,  4  Cranch  430;  McCarty  v.  Leggett,  3  Hill  134;  Greenby 
V.  Wilcocks,  2  Johns.  1,  3  Am.  Dec.  379;  Brandt  v.  Foster,  5  Clarke 
287;  Abbott  V.  Allen,  14  Johns.  248;  Fitch  v.  Baldwin,  17  Johns.  161; 
Fitzhugh  .V.  Coghan,  2  Marsh.  J.  J.  430,  19  Am.  Dec.  140;  Coit  V.  Me- 
Reynolds,  2  Rob.  (N.  Y.)  655;  Martin  V.  Baker,  5  Blackfr232;  Thomas 
V.  Perry,  1  Peters  C.  C.  57;  Woods  v.  North,  6  Humph.  409,  44  Am. 
Dec.  312.  See  Lindsey  v.  Veasy,  62  Ala.  421 ;  Matteson  v.  Vaughn,  38 
Mich.  373.  "  At  common  law  an  assignee  of  the  covenantee  could  not 
maintain  an  action  of  covenant,  as  privity  of  contract  does  not  exist, 
and  privity  of  estate  alone  is  not  sufficient  to  sustain  the  action.  This 
rule  was  changed  in  England  by  St.  32  Henry  VIII,  c.  10,  and  in  Ohio, 
while  the  statute  of  Henry  VIII  has  not  been  adopted,  yet  the  same 
object  is  accomplished  by  the  Code  of  Civil  Procedure,  which  authorizes 
suit  by  the  party  beneficially  interested,  and  hence  empowers  the  as- 
signee of  a  covenant  to  sue  in  his  own  name."  Broadwell  v.  Banks 
(U.  S.  C.  C,  Mo.,  1905),  134  Fed.  Rep.  470. 

02  Garfield  v.  Williams,  2  Vt.  328;  Smith  v.  Strong,  14  Pick.  123; 
Raymond  v.  Raymond,  10  Cush.  134;  Abbott  v.  Allen,  14  Johns.  248; 
Stanard  V.  Eldridge,  16  Johns.  254;  Wilson  V.  Forbes,  2  Dev.  30;  Kin- 
eaid V.  Brittain,  5  Sneed  123;  Allen  r.  Kennedy.  91  Mo.  324,  2  S.  W. 
Rep.  142.     See,  also,  Broadwell  r.  Banks,  134  Fed.  Rep.  470. 

803 


-§  615  '  COVENANTS  IN  DEEDS.  [PART  m. 

§  615.  What  facts  constitute  a  breach. —  The  covenant  of 
seisin  is  defined  to  be  an  assurance  that  he  has  the  very  estate, 
both  in  quantity  and  quality,  which  he  professes  to  convey.'*^ 
So  if  the  grantor  expressly  conveys  only  the  lands,  "whereof 
he  was  seised  on"  a  certain  day,  the  covenant  of  seisin  is 
not  broken  if  other  lands  fall  under  the  general  description, 
of  which  he  did  not  have  the  seisin."**  Therefore,  any  out- 
standing right  or  title  which  diminishes  the  quality  or  quan- 
tity of  the  technical  seisin  will  be  a  breach  of  the  covenant. 
It  will  be  broken  if  the  estate  is  less  in  duration  or  quantity 
than  what  is  described."*'  So,  also,  if  the  estate  described  is 
not,  to  any  extent,  the  property  of  the  grantor.^"  The  cove- 
nant is  also  broken  where  the  land  conveyed  has  upon  it 
fences,  buildings,  and  other  erections  belonging  to  other  per- 
sons, if  there  is  no  restraining  clause  in  the  deed.^^  But,  on 
the  other  hand,  easements,  the  exercise  of  which  do  not  affect 
the  technical  seisin  of  the  grantee,  such  as  a  right  of  way,  a 
public  highway,  or  railroad,  will  not  constitute  a  breach  of  the 
covenant.^*     An  outstanding  judgment,  mortgage,  or  right  of 

53  Howell  V.  Richards,  11  East  641;  Pecare  r.  Chouteau,  13  Mo.  527. 

B*  Thomas  v.  Perry,  Pet  C.  Ct.  49. 

05  Downer  v.  Smith,  38  Vt.  468;  Lindley  r.  Dakin,  13  Ind.  388;  Phipps 
V.  Tarpley,  24  Miss.  597;  Kellogg  f.  Malin,  50  Mo.  496;  Wilson  v. 
Forbes,  2  Dev!  35;  Wilder  v.  Ireland,  8  Jones  L.  90;  Sedgwick  v.  Hol- 
lenback,  7  Johns.  376;  Wheeler  v.  Hatch,  12  Me.  389;  Comstock  v. 
Comstock,  23  Conn.  352.  See,  Chenault  V.  Thomas  (Ky.  1904),  83  S. 
W.  Rep.   109. 

68  Wheelcock  v.  Thayer,  16  Pick.  68 ;  Basford  r.  Pearson,  9  Allen 
389;  Bacon  v.  Lincoln,  4  Cush.  210;  Morrison  v.  McArthur,  43  Me.  567; 
Koepke  V.  Winterfield   (Wis.  1902),  92  N.  \M.  Rep.  437. 

67Mott  I'.  Palmer,  1  N.  Y.  564;  Tifft  V.  Horton,  53  N.  Y.  377;  Powers 
f.  Dennison,  30  Vt.  752;  Van  Wagner  v.  Van  Nostrand,  19  Iowa  427. 
See,  Righter  V.  Winters  (N.  J.  Ch.  1905),  59  Atl.  Rep.  770. 

58  Whitbeck  f.  Cook,  15  Johns.  483;  Mills  i'.  Catlin,  22  Vt.  98;  Lewis 
V.  Jones,  1  Pa.  St.  336;  Fitzhugh  v.  Croghan,  2  J.  J.  Marsh.  429;  Kel- 
logg f.  Malin,  50  Mo.  496,  11  Am.  Rep.  426.  But  it  has  been  held  to  be 
broken  by  an  outstanding  right  to  use  the  water  of  a  spring.  Lamb  v. 
Danforth,  59  Me.  324;  Clark  v.  Sonroe,  38  Vt.  469.  And  by  a  right  to 
restrain  the  damming  of  water.  Traster  v.  Nelson,  29  Ind.  96;  Hall  f. 
Gale,  14  Wis.  55. 
894 


CH.    XXIII.]  COVENANTS   IN   DEEDS.  §    • 

dower,  does  not  constitute  a  "breach  of  the  covenant,  an  J  i.i 
the  case  of  a  mortgage,  it  does  not  matter  whether  the  mort- 
gage is  construed  to  be  a  conveyance  or  only  a  lien.'^®  But 
if  the  grantee  is  himself  seised,  he  will  be  estopped  from 
setting  up  his  seisin  in  an  action  for  the  breach  of  the  cove- 
nant of  seisin.®** 

§  616.  Covenants  against  incnmbrances. —  This  covenant  is 
intended  to  provide  security  against  the  assertion  of  "every 
right  to,  or  interest  in  the  land,  which  may  subsist  in  third 
persons,  not  consistent  with  the  passing  of  the  fee  by  the  con- 
veyance."  ®^  The  same  contrariety  of  opinion  exists  as  to  the 
character  of  covenants  against  incumbrances  as  was  discov- 
ered in  regard  to  the  character  of  covenants  of  seisin,  viz. : 
whether  the  covenant  is  one  in  prcesenti,  broken,  if  at  all,  as 
soon  as  it  is  made,  and,  therefore,  does  not  pass  to  the  grantee 's 
assigns;  or  whether  it  is  a  future  covenant,  and,  therefore, 
enforcible  by  whoever  is  injured  by  the  incumbrance.  The 
generally  prevailing  doctrine  in  this  country  is,  that  it  is  a 
covenant  in  prcesenti,  and  does  not  run  with  the  land.*^  But 
in  some  of  the  States  of  this  country  it  is  held  to  be  a  cove- 
so  Sed^vick  V.  Hollenback,  7  Johns.  376;  Stanard  v.  EldridjEje.  16 
Johns.  254;  Lewis  v.  T^ewis,  5  Rich.  L.  12;  Massey  V.  Craine,  1  Mc- 
Cord  489;  Reasoner  v.  Edmundson,  5  Ind.  394.  But  see  Voorhis  V.  For- 
sythe,  4  Biss.  409. 

00  Fitch  17.  Baldwin,  17  Johns.  161;  Furness  v.  Williams,  11   111.  229. 

01  2  Greenl.  on  Ev.,  Sec.  242 ;  Gary  v.  Daniels,  8  Mete.  482 ;  Bronson 
V.  Coffin,  108  Mass.  175;  Mitchell  v.  Warner,  5  Conn.  527.  "A  cove- 
nant against  incumbrances  is  broken  when  made,  if  incumbrances  exist 
when  the  deed  is  delivered."  Dahl  v.  Stakke  (N.  D.  1903),  96  N.  W. 
Rep.  353. 

02  Clark  v.  Swift,  3  Mete.  392;  Thayer  v.  Clemence,  22  Pick.  490; 
Whitney  tJ.  Dinmore,  6  Cush.  127;  Runnels  v.  Webster,  59  Me.  488;  Russ 
V.  Perry,  49  N.  H.  547;  Garrison  r.  Sanford,  12  N.  J.  L.  261;  Funk  t'. 
Voneida,  11  Serg.  &  R.  109;  Frink  r.  Bellis,  33  Ind.  135;  Guerin  V. 
Smith,  62  Mich.  369,  28  N.  W.  Rep.  906.  See  Richard  v.  Bent,  59  111. 
38,  14  Am.  Rep.  1.  "  A  covenant  against  incumbrances  in  a  deed  does 
not  run  with  the  land."  Brass  V.  Vandecar  (Neb.  1903),  96  N.  W. 
Rep.  1035.     See,  Dahl  V.  Stakke  (N.  D.),  96  N.  W.  Rep.  353. 

895 


§  616  COVENANTS  IN  DEEDS.  [PART  III. 

nant  in  futuro,  and,  therefore,  one  running  with  the  land. 
The  covenant  is  broken  when  the  outstanding  right  is  en- 
forced.®^ Probably  this  variance  of  opinion,  as  in  the  case 
of  covenants  of  seisin,  originated  in  a  failure  to  note  care- 
fully the  distinction  between  a  covenant  that  the  estate  is  free 
from  incumbrances,  and  a  covenant  that  the  grantee  shall 
enjoy  the  estate  free  from  incumbrances.  The  latter  is  prac- 
tically a  covenant  for  quiet  enjoyment,  and  being  future  in 
character,  passes  with  the  land  to  the  grantee's  assigns."* 
The  grantee  or  his  assignee  may  recover  whatever  loss  he  may 
have  sustained  by  the  enforcement  of  the  incumbrance,  and 
where  the  covenant  takes  the  form  of  an  obligation  to  dis- 
charge incumbrances,  the  right  of  action  accrues  immediately 
upon  the  covenantor's  failure  to  perform."''  If  it  be  an 
ordinary  covenant  against  incumbrances,  the  grantee  can  only 
obtain  nominal  damages,  unless  he  can  show  that  he  has  suf- 
fered an  actual  loss.  If  the  incumbrance  be  a  mortgage  or 
other  future  claim,  the  damages  will  be  nominal,  unless  the 
mortgage  or  other  lien  is  enforced  before  the  action  on  the 
covenant  is  instituted.  But  if  the  incumbrance  is  a  pre- 
existing easement,  substantial  damages  may  be  recovered  at 
any  time.®' 

63  Foote  r.  Burnett,  10  Ohio  317.  See  Sprague  v.  Baker,  17  Mass. 
586;  MoCrady  i:  Brisbane,  1  Nott.  &  M.  104.  In  some  of  the  States, 
although  the  courts  take  the  position  that  the  covenant  against  incum- 
brance is  a  covenant  in  prcesenti,  they  hold  that  it  runs  with  the  land, 
and  will  support  an  action  by  the  second  or  third  grantee  under  the 
covenantee.  Kradler  V.  Sharp,  36  111.  236;  Richard  v.  Bent,  59  111.  38, 
14  Am.  Rep.  1 ;  Winningham  v.  Pennock,  36  Mo.  App.  688. 

64  Rawle  Gov.  92 ;  Lethbridge  v.  Mytton,  2  B.  &  Ad.  772 ;  Hall  v. 
Deane,  13  Johns.  105;  Greene  V.  Creighton,  7  R.  I.  1 ;  Hutchins  v. 
Moody,  30  Vt.  658;  Carter  v.  Denman,  23  N.  J.  L.  273;  Grice  v.  Scar- 
borough, 2  Spears  649;  Anderson  v.  Knox,  20  Ala.  156.  See,  Sibley  f. 
Hutchinson    (X.  H.  1903),  55  Atl.  Rep.  .547. 

65  3  Washburn  on  Real  Prop.  464 ;  Gardner  v.  Niles,  16  Me.  280 ;  Jen- 
nings 15.  Morton,  35  Me.  309;  Booth  f.  Starr,  1  Conn.  249;  Lathrop  V. 
Atwood,  21  Conn.  123;  Hogan's  Exrs.  v.  Calvert,  21  Ala.  199. 

66  Whitney  v.  Dinsmore,  6  Cush.  124;  Churchill  v.  Hunt,  3  Denio  321; 
Ardesco  Oil  Co.  V.  N.  A.  Mining  Co.,  66  Pa.  St.  375;  Richard  v.  Bent, 

896 


CH.    XXIII.]  COVENANTS   IN    DEEDS.  §    617 

§  617.  What  circumstances  constitute  a  breach  of  covenant 
against  incumbrances. —  The  following  may  be  mentioned  as 
the  more  prominent  examples  of  incumbrances,  the  existence 
of  which  will  constitute  a  breach  of  the  covenant,  supplement- 
ing them  by  the  statement  that  there  are  others,  and  that 
every  outstanding  right  which  comes  under  the  definition  of  an 
incumbrance  above  given  would  be  a  breach  of  the  covenant : 
An  inchoate  right  of  dower ;  ^''  a  judgment  lien ;  ^^  an  out- 
standing mortgage ;  ®^  taxes  and  assessments,  when  ascertained 
and  determined ;  '^'^  an  outstanding  lease  in  possession ;  '^  con- 
ditions and  covenants,  restricting  the  use  of  premises.''^     And 

60  111.  38,  14  Am.  Rep.  1.  "A  purchaser  of  property  cannot  recover  as 
for  breach  of  warranty  as  to  the  amount  due  on  a  mortgage  thereon, 
foreclosure  not  having  been  attempted,  and  he  not  having  been  dis- 
turbed in  his  possession."     Inderlied  r.  Honeywell,  84  N.  Y.  S.  333. 

67  Shearer  v.  Ranger,  22  Pick.  447;  Jenks  V.  Ward,  4  Mete.  412; 
Fletcher  v.  State  Bank,  37  N.  H.  397;  McAlpine  v.  WoodrulT,  11  Ohio 
St.  120.  But  see  Bigelow  v.  Hubbard,  97  Mass.  198;  Bostwick  V.  Wil- 
liams, 36  111.  69. 

«8  Jenkins  v.  Hopkins,  8  Pick.  346;  Hall  r.  Dean,  13  Johns.  105.  Sec, 
Revenel  r.  Ingram  (N.  C.  1902),  42  S.  E    Rep.  967. 

C9  Bean  r.  Mayo,  5  Me.  94;  Freeman  r.  Foster.  .'55  Me.  508;  Brooks  v. 
Moody,  25  Ark.  4.52;  Lively  v.  Rice,  150  Mass.  171,  22  N.  E.  Rep.  888; 
Gow  V.  Allen  (Mo.  1905).  87  S.  W.  Rep.  590.  See,  also,  Harr  v. 
Shafcr   (W.  Va.  1903),  43  S.  E.  Rep.  89. 

70Rundell  r.  Lakey,  40  N.  Y.  514;  Barlow  v.  St.  Nicholas  Bank,  63 
N.  Y.  399;  Cochrane  v.  Guild,  106  Mass.  29;  Hill  V.  Bacon,  110  Mass. 
C83;  Pierce  v.  Brew,  43  Vt.  292;  Long  v.  Moler,  5  Ohio  St.  271;  Almy 
r.  Hunt,  48  111.  45;  Cadmus  t".  Fagan,  47  N.  J.  L.  549;  People  v.  Gilon, 
24  Abb.  N.  C.  125;  9  N.  Y.  S.  563;  Hartshorn  V.  Cleveland  (N.  J.),  9 
Atl.  Rep.  974;  Harper  V.  Dowdney,  47  Hun  227.  But  see  Hartshorn 
v.  Cleveland,  supra;  Cemowsky  v.  Fitch  (Iowa  1903).  96  N.  W.  Rep. 
754;  Patterson  V.  Cappan  (Wis.  1905),  102  N.  W.  Rep.  1083;  Cain  V. 
Fisher   (W.  Va.),  50  S.  E.  Rep.  752. 

-71  Gale  V.  Edwards,  52  Me.  360;  Batchelder  v.  Sturgis,  3  Cush.  201; 
W>ld  V.  Traip,  14  Gray  330;  Porter  v.  Bradley,  7  R.  I.  538;  Cross  t?. 
Noble,  67  Pa.  St.  77;  Grice  v.  Scarborough,  2  Spears  649.  "An  unex- 
pired term  or  lease,  which  prevents  the  grantee  in  a  deed  from  recover- 
ing possession  of  the  land  described  therein,  is  an  incumbrance."  Brass 
V.  Vandecar  (Neb.  1903),  96  N.  W.  Rep.  1035. 

T2 Plymouth  V.  Carver,  16  Pick.  183;  Parish  v.  Whitney,  3  Gray  516; 

67  897 


§  618  COVENANTS  IN  DEEDS.  [PART  III. 

it  may  be  stated  that  pre-existing  easements  upon  the  land 
will  constitute  breaches  of  the  covenant  against  incumbrances. 
Among  them  may  be  mentioned  railroads,  private  rights  of 
way,  rights  to  artificial  water-courses,  to  cut  trees,  to  mine, 
to  maintain  dams  and  aqueducts,  etc.'^^  Although  it  has  been 
denied  in  New  York,  Pennsylvania  and  Wisconsin,''*  the  pre- 
vailing doctrine  is  that  the  existence  of  a  public  highway  over 
the  land  is  a  breach  of  the  covenant,  even  though  the  grantee 
knew  of  its  existence.''"  Any  one  of  these  circumstances  will 
constitute  a  breach  of  the  covenant,  even  though  the  grantee 
is  aware  of  its  existence  when  he  took  the  deed  and  paid  the 
consideration.'® 

§  618.  Covenant  for  quiet  enjoyment. —  This  covenant  is 
*'an  assurance  against  the  consequences  of  a  defective  title, 
and  of  any  disturbances  thereupon.""  The  covenant  for 
quiet  enjoyment  is  in  common  use  in  England,  and  in  the 
United  States  it  is  commonly  met  with  in  leases.  But  in  the 
ordinary  conveyance  of  freeholds  it  is  almost  altogether  super- 

Bronson  r.  Coffin.  108  Mass.  175;  Burbank  r.  Pillsbury,  48  N.  H.  475; 
Foster  v.  Foster,  62  N.  H.  46. 

TsSpurr  V.  Andrews,  6  Allen  420;  Prescott  v.  White,  21  Pick.  341; 
Lamb  v.  Danforth,  59  Me.  322,  8  Am.  Rep.  426 ;  Brooks  r.  Curtis,  50  N. 
Y.  639,  10  Am.  Rep.  545;  Smith  v.  Sprague,  40  Vt.  310;  Wilson  v. 
Cochrane,  46  Pa.  St.  233;  Kutz  v.  McCune,  22  Wis.  628;  Burk  v.  Hill, 

48  Ind.  52,  17  Am.  Rep.  731;  Barlow  v.  McKinley,  24  Iowa  70;  Beach 
V.  Miller,  51  111.  206,  2  Am.  Rep.  290;  Kellogg  f.  Malin,  50  Mo.  496, 
11  Am.  Rep.  426. 

T4Whitbeck  v.  Cook,  15  Johns.  483;  Patterson  V.  Arthur,  9  Watts 
152;  Wilson  V.  Cochrane,  46  Pa.  St.  229;  Kutz  v.  McCune,  22  Wis.  628. 

75  Haynes  v.  Young,  36  Me.  557 ;  Lamb  v.  Danforth,  59  Me.  322,  8  Am. 
Rep.  426;  Parish  V.  Whitney,  3  Gray  516;  Burk  v.  Hill,  48  Ind.  52,  17 
Am.  Rep.  731;  Beach  V.  Miller,  51  111.  206,  2  Am.  Rep.  290;  Kellogg  t?. 
Malin,  50  Mo.  496,  11  Am.  Rep.  426. 

ToHoovey  V.  Newton,  7  Pick.  29;  Harlow  v.  Thomas,  15  Pick.  68; 
Funk  V.  Voneida,  11  Serg.  &  R.  112;  Snyder  V.  Lane,  10  Ind.  424;  Beach 
r.  Miller,  51  111.  206,  2  Am.  Rep.  290;  Kincaid  v.  Brittain,  5  Sneed  119. 
Contra,  Hutz  v.  McCune,  22  Wis.  628.     See,  Allen  v.  Taylor  (Ga.  1905), 

49  S.  E.  Rep.  799. 

'THowells  V.  Richards,  11  East  633. 
898 


CH.    XXIII.]  COVENANTS   IN   DEEDS.  §    619 

ceded  by  the  covenant  of  warranty,  from  which  it  cannot  be 
materially  distinguished.'^*  The  operation  of  the  two  cove- 
nants being  almost  identical,  an  exhaustive  statement  will  not 
be  needed  here.  It  suffices  to  say,  that  nothing  but  actual  or 
constructive  eviction,  by  the  assertion  of  the  paramount  title, 
will  constitute  a  breach  of  this  covenant.''* 

§  619.  Covenant  of  warranty. —  As  has  been  stated  in  the 
preceding  paragraph,  covenants  for  quiet  enjoyment  and  of 
warranty  are  practically  identical  in  their  operation.  An 
attempt  has  been  made  to  distinguish  them  by  the  statement 
that  the  former  relates  to  the  possession  and  the  covenant 
is  broken  by  an  eviction  of  lawful  right;  while  the  covenant 
of  warranty  relates  to  the  title,  and  requires  the  eviction  to 
be  by  paramount  title  as  well  as  by  lawful  right,  in  order  to 
constitute  a  breach.""  But  since  an  eviction  can  be  lawful 
only  under  a  paramount  title,  it  is  difficult  to  see  in  what  this 
siipposed  difference  lies.  The  same  acts  which  will  constitute 
a  breach  of  one  covenant  will  be  a  breach  of  the  other  also. 
In  order  that  the  covenants  may  be  broken,  there  must  be  an 
actual  or  constructive  eviction  of  the  whole  or  a  part  of  the 
premises.*^     But  the  grantee  need  not  resist  the  claim  of  the 

TSRawle   Gov.    125.  ^ 

■79  Smith  V.  Shepard,  15  Pick.  147 ;  Russ  v.  Steele,  40  Vt.  315 ;  Cow- 
drey  V.  Coit,  44  N.  Y.  382,  4  Am.  Rep.  690 ;  Ross  V.  Dysart,  33  Pa.  St. 
452;  Hand  v.  Armstrong,  34  Ga.  232;  Murphy  v.  Price,  48  Mo.  250; 
Johnson  t'.  Nyce,  17  Ohio  66;  Clark  v.  Lineberger,  44  Ind.  223;  Pence 
V.  Duval,  9  B.  Mon.  49;  Thomas  v.  Stickle,  32  Iowa  76;  McGary  V. 
Hastings,  39  Cal.  360,  2  Am.  Rep.  456;  Scrivner  V.  Smith,  100  N.  Y,  471 ; 
53  Am.  Rep.  224;  Hayes  V.  Ferguson,  15  Lea  1;  Morgan  v.  Henderson, 
2  Wash.  367;  McAlester  V.  Landers,  70  Cal.  79,  11  Pac.  Rep.  505.  See 
ante,  Sees.  144,  152,  153. 

80  Fowler  v.  Poling,  6  Barb.  165;  Wheeler  v.  Wayne  Co.  (111.),  24 
N.  E.  Rep.  625.  "A  judgment  against  a  grantee  of  land  for  possession 
thereof  is  not  sufficient  to  constitute  a  breach  of  a  covenant  of  warranty; 
an  actual  ouster,  or  a  disturbance  of  possession  equivalent  to  an  ouster, 
being  necessary.'     Ravenel  V.  Ingram   (N.  C.  1902),  42  S.  E.  Rep.  967. 

81  West  r.  Stewart,  7  Pa.  St.  122;  Bostwick  v.  Williams,  36  111.  69; 
Bayer  v.  Schultze,  54  N.  Y.  Super.  Ct.  212;  Barry  v.  Guild,  28  111.  App. 

899 


§  619  COVENANTS  IN  DEEDS.  [PART  III. 

contestant  until  he  has  been  evicted  by  process  of  law.  He 
may  voluntarily  yield  the  possession  upon  demand  of  the 
owner  of  the  paramount  title,^-  or  purchase  the  outstanding 
title  from  the  adverse  claimant.^^  But  he  does  this  at  his 
peril,  and  the  burden  of  proof  in  a  subsequent  action  on  the 
covenant  lies  on  him  to  show,  that  the  title  to  which  he  yielded 
possession  was  really  the  paramount  title.***  A  judgment  in 
ejectment  is  a  breach  of  the  covenant,  and  the  grantee  need 
not  wait  to  be  actually  evicted.*"^  But  in  all  these  cases  the 
covenant  is  not  broken  by  eviction,  unless  under  a  lawful  and 
paramount  title.**  And  there  will  be  no  breach  of  the  cove- 
nant, if  land  is  confiscated  in  the  exercise  of  the  right  of  emi- 
nent domain.*^  It  matters  not  what  may  be  the  nature  of  the 
paramount  claim.     If  it  is  paramount,  and  the  enforcement 

39.  In  South  Carolina  and  elsewhere  the  existence  of  a  paramount 
title  in  a  third  person  is  sufficient,  without  eviction,  to  constitute  a 
breach  of  the  covenant.  Biggus  v.  Bradley,  1  McCord  500;  Mackey  V. 
Collins,  2  Nott  &  M.  186;  Clapp  v.  Herdman,  25  111.  App.  509. 

82  Knepper  v.  Kurtz,  58  Pa.  St.  484 ;  Clarke  v.  McAnulty,  3  Serg.  &  R. 
364;  Oilman  v.  Haven,  11  Cush.  330;  Greenvault  v.  Davis,  4  Hill  643; 
Kellogg  V.  Piatt,  33  N.  J.  828;  Claycomb  v.  Munger,  51  111.  376;  Mc- 
Gary  v.  Hastings,  39  Cal.  360,  2  Am.  Rep.  456;  Lambert  V.  Estes,  99 
Mo.  604,  13  S.  W.  Rep.  284;  Holliday  v.  Menifee,  30  Mo.  App.  207. 
Contra,  Ferris  V.  Harshea,  Mart.  &  Y.  52. 

ssEversole  V.  Early  (Iowa),  44  N.  W.  Rep.  897;  Petrie  V.  Folz,  54  N. 
Y.  Super.  223. 

84  Stone  V.  Hooker,  9  Cow.  154;  Smith  v.  Shepard,  15  Pick.  147; 
Clark  V.  McAnulty,  3  Serg.  &  R.  364;  Crance  v.  Collenbaugh,  47  Ind. 
256;  Lambert  v.  Estes,  99  Mo.  604,  13  S.  W.  Rep.  284. 

85  Loughran  v.  Ross,  45  N.  Y.  792 ;  Cowdrey  v.  Coit,  44  N.  Y.  382, 
4  Am.  Rep.  690;  Noonan  v.  Lee,  2  Black  499;  Gleason  v.  Smith,  41  Vt. 
293;  Kincaid  v.  Brittain,  5  Sneed  124;  Hale  v.  New  Orleans,  13  La.  An. 
499 ;  Collier  v.  Cowger,  52  Ark.  322,  ^  12  S.  W.  Rep.  702 ;  Brown  v. 
Allen,  10  N.  Y.  S.  714.  "  A  judgment  establishing  a  paramount  title 
is  the  legal  equivalent  of  an  eviction,  and  a  satisfaction  thereof  perfects 
the  cause  of  action  against  the  warrantor  of  the  title."  McCrillis  v. 
Thomas  (Mo.  App.  1905),  85  S.  W.  Rep.  673. 

8«  Gleason  v.  Smith,  41  Vt.  296.  See  Memmert  v.  McKean,  112  Pa.  St. 
.315. 

87  Brown  v.  Jackson,  3  Wheat.  452;  Blanchard  v.  Brooks,  12  Pick. 
47;  Sweet  v.  Brown,  12  Mete.  175;  Raymond  v.  Raymond,  10  Cush.  132; 
900 


CH.   XXIII.]  COVENANTS  IN  DEEDS.  §   620 

of  it  will  take  a  portion,  or  the  whole  of  the  land  conveyed, 
or  will  diminish  the  value  of  it  by  restricting  the  enjoyment 
of  it,  the  assertion  of  the  claim  will  be  a  breach  of  the  cove- 
nant.  Therefore,  an  outstanding  right  to  an  easement,  con- 
ditions restraining  the  use  of  the  land,  a  mortgage  or  other 
lien,  a  wife's  or  widow's  dower,  and  the  like,  will  constitute 
a  breach  of  the  covenant  of  warranty,  when  they  are  en- 
forced.®^ But  if  the  covenant  is  signed  by  two  ar  three  joint 
tenants  or  tenants  in  common,  it  is  not  broken  by  the  assertion 
of  a  paramount  title  to  an  undivided  third  by  the  purchaser 
from  the  third  co-tenant,  where  the  third  co-tenant  had  been 
expected  to  join  in  the  conveyance  but  had  refused. ^^  The 
covenant  of  each  covenantor  is  held  in  such  case  to  be  several. 

§  620.  The  character  of  the  covenant  of  warranty. —  The 
covenant  of  warranty  in  its  present  character  is  a  mod- 
ern covenant  of  title,  and  is  an  adaptation  of  an  old  English 
covenant  to  American  wants.  It  is  now  the  most  common 
covenant  of  title,  and  the  only  one  in  general  use.  This  is  a 
personal  obligation,  binding  the  warrantor  and  his  personal 
representatives,  to  warrant  and  defend  the  title  of  the  cove- 
nantee against  adverse  claims,  and  binds  his  heirs  and  devisees 
only  when  they  are  expressly  mentioned,  and  then  only  to  the 

Peck  r.  Jones,  70  Pa.  St.  83;  Adams  v.  Ross,  30  X.  J.  L.  510;  Doe  v. 
Dowdall,  3  Hovist.  380;  Kimball  v.  Temple,  2.5  Cal.  4.52. 

88  Lamb  r.  Danforth,  59  Me.  324,  8  Am.  Rep.  426 ;  Haynes  V.  Young» 

36  Me.  561;  Day  v.  Adams,  42  Vt.  510;  Harlow  v.  Thomas,  15  Pick.  66; 
White  r.-^Vhitney,  3  Mete.  81;  Estabrook  v.  Smith,  6  GLray  572;  Cow- 
dry  V.  Coit,  44  N.  Y.  382,  4  Am.  Rep.  690.    But  see  Hendricks  v.  Stark, 

37  N,  Y.  106;  .Janes  v.  Jenkins,  34  Md.  1,  6  Am.  Rep,  300;  Hill  f;. 
Bacon,  110  Mass.  388;  Flynn  v.  Williams,  1  Ired.  L.  .509;  Soiitherland 
V.  Stout,  68  N.  C.  446;  Moore  v.  Vail,  17  111.  185.  But  see  Memmert 
«.  McKeen,  112  Pa.  St.  315.  But  an  incumbrance,  which  the  grantee 
undertakes  to  pay,  will  not  work  a  breach  of  the  covenant.  Stebbins 
f.  Hall,  29  Barb.  524;  Belmont  v.  Coman,  2  N.  Y.  438;  Gage  v.  Brew- 
ster, 31  N.  Y.  221;  Trotter  v.  Hughes,  2  Vt.  74;  Allen  v.  Lee,  1  Ind. 
58;  Pitman  r.  Conner,  27  Ind.  337.  See,  Sears  v.  Broody  (Neb.  1902), 
92  N.  W.  Rep.  2U. 

80  Redding  r.  Lfinb  (Mich.),  45  N.  W.  Rep.  997. 

901 


§  621  COVENANTS  IN  DEEDS.  [PART  III. 

extent  of  the  assets  received  by  them  from  the  warrantor. 
And  as  a  personal  covenant,  it  may  be  barred  by  the  Statute 
of  Limitations.""  The  right  of  action  is  not  affected  by  a 
failure  to  record  the  conveyance  and  covenant."^  If  the  cove- 
nant is  broken,  as  will  be  more  fully  explained  in  a  subse- 
quent paragraph,  the  covenantee  is  entitled  to  an  action  for 
damages  against  the  covenantor.®^  But  a  different  remedy 
was  provided  in  the  case  of 

§  621.  The  feudal  warranty. —  Of  which  the  modern  war- 
ranty is  a  descendant.  The  feudal  warranty  grew  out  of  the 
relation  of  lord  and  vassal.  Upon  receiving  the  homage  of  the 
vassal  the  lord  pledged  himself  to  warrant  and  defend  the 
title  to  the  vassal's  lands,  and  provide  him  with  others  of 
equal  value  if  he  were  ousted  of  his  lands  by  a  paramount 
title.  If  the  vassal  or  tenant  was  evicted  he  could  call  upon 
the  lord  for  som«  more  lands,  as  compensation  for  those 
which  he  had  lost.  But  there  was  no  action  for  damages.®^ 
The  ancient  feudal  warranty  has  long  since  become  obsolete, 
and  has  been  replaced  by  the  personal  covenant  above  de- 
scribed."* In  only  one  respect  does  the  modern  covenant  bear 
any  very  close  and  striking  resemblance  to  the  feudal  war- 
ranty ;  and  that  is,  in  its  operation  as  an  estoppel,  to  bind  an 
after-acquired  title  in  the  hands  of  the  warrantor  and  privies, 
and  prevent  its  enforcement  against  the  grantee.  Wherever 
a  grantor  undertakes  to  convey  an  estate  to  which  he  has  no 
title,  if  the  deed  contains  a  covenant  of  warranty,  he  is  es- 
topped from  setting  up  an  adverse  title  which  he  has  subse- 

»0Cole  V.  Raymond,  9  Gray  17;  Holden  r.  Fletcher,  6  Curtis  235; 
Townsend  v.  Morris,  6  Cow.  126;  Athens  v.  Nale,  25  111.  198;  Bostwick 
V.  Williams,  36  111.  70;  Wheeler  v.  Wayne  Co.  (111.),  24  N.  E.  Rep. 
625;  Sine  f.  Fox,  33  W.  Va.  521,  11  S.  E.  Rep.  218. 

91  Boyer  v.  Amet,  41  L.  An.  721,  6  So.  Rep.  734. 

82  See  post,   Sec.  625. 

03  3  Washburn  on  Real  Prop.  468. 

»4Co.  Lit.  384  a,  Butler's  note  332;  Townsend  v.  Morris,  6  Cow.  126; 
Caldwell  v.  Kirkpatrick,  6  Ala.  60;  4  Kent's  Com.  472;  3  Washburn  on 
Real  Prop.  468.  469. 
902 


CH.    XXm.]  COVENANTS   IN   DEEDS.  §    622 

quently  acquired.  And  this  is  the  case,  even  though  the 
grantee  has  by  his  deed  acquired  neither  title  nor  possession. 
The  grantee  may  maintain  ejectment  against  the  grantor  so 
soon  as  he  has  acquired  the  title  and  possession.  Or,  if  the 
grantor  has  only  acquired  the  title  and  the  land  is  in  posses- 
sion of  a  third  person,  he  may  maintain  an  equitable  suit  for 
a  conveyance  of  the  newly  acquired  title."''  The  heirs  are 
bound  by  the  covenant  of  warranty  as  an  estoppel,  in  respect 
to  the  lands  acquired  by  descent  from  the  ancestor  who  war- 
ranted, but  are  not  estopped  from  setting  up  an  adverse  title 
acquired  by  purchase,  although  they  will  be  liable  in  an  action 
on  the  covenant  to  the  extent  of  the  property  received  by  them 
from  the  ancestor."" 

~^  622.  Special  and  limited  covenants  of  title  —  Exceptions  to 
operation  of  covenant. —  So  far  only  general  covenants  of 
warranty  have  been  referred  to;  that  is,  covenants  in  which 
the  grantor  covenants  to  warrant  and  defend  the  title  against 
the  lawful  adverse  claims  of  all  persons  whomsoever.  But 
the  covenant  need  not  always  be  general.  It  may  be  specially 
limited  to  the  actions  and  claims  of  certain  persons.  Thus,  a 
covenant  against  all  persons  claiming  by,  through,  or  under 
the  grantor  is  a  special  covenant,  and  a  paramount  title 
against  the  grantor,  not  created  by  himself,  is  no  breach  of 
the  covenant.  And  if  the  grantor,  after  conveying  with 
special  warranty,  in  which  he  only  covenants  against  any  de- 
fects in  the  title  resulting  from  his  past  transactions,  acquires 
the  paramount  title,  he  may  set  it  up  against  his  grantees  and 
assigns.     He  is  not  estopped  by  this  special  warranty."^     In 

osTerrett  V.  Taylor,  9  Cranch  53;  White  v.  Patten,  24  Pick.  324; 
Jackson  v.  Murray,  12  Johns.  201;  Jackson  v.  Stevens,  13  Johns.  316; 
Baxter  V.  Bradbury,  20  Me.  260;  Cotton  v.  Ward,  3  B.  Mon.  304;  King 
V.  Gilson,  32  111.  353;  Hope  v.  Stone,  10  Minn.  141.  See,  also,  ante, 
Sees.  511,  515. 

»"  Oliver  v.  Piatt,  3  How.  412;  Bates  v.  Norcross,  17  Pick.  14;  Cole 
r.  Raymond,  9  Gray  217;  Torrey  v.  Minor,  1  Smed.  &  M.  Ch.  489. 

"7  Davenport  v.  Lamb,  13  Wall.  418;  Jackson  V.  Peck,  4  Wend.  300; 

903 


§  622  COVENANTS  IN  DEEDS.  [PART  UI. 

the  same  manner  the  operation  of  the  covenant  of  warranty 
may  be  limited  by  the  description  of  the  subject-matter  of  the 
conveyance.  Thus,  if  a  deed  purports  to  convey  in  terms  the 
right,  title  and  interest  of  the  grantor  to  the  land  described, 
instead  of  conveying  in  terms  the  land  itself,  a  general  cov- 
enant of  warranty  will  be  limited  to  that  right  or  interest, 
and  will  not  be  broken  by  the  enforcement  of  a  paramount 
title  outstanding  against  the  grantor  at  the  time  of  the  con- 
veyance.®* But  this  position  is  assailed,  and  not  without 
good  grounds,  by  other  authorities.®®  Mr.  Washburn  says> 
**  Nor  is  it  easy  to  see  what  the  office  or  purpose  of  a  covenant 
of  warranty  can  be  when  whatever  is  granted  infallibly  passes, 
and  can  never  be  lawfully  diverted  by  any  future  lawful  act 
or  right  of  any  one.  The  grantor  cannot  reclaim  or  disturb 
what  he  has  expressly  granted ;  nor  could  any  one  acquire  any 
right  to  disturb  his  grantee  by  any  deed  which  the  grantor 
might  subsequently  make. ' '  ^  Exceptions  can  be  and  are 
often  made  to  the  operation  of  the  other  covenants,  of  seisin 
and  against  incumbrances.^  Another  important  question  con- 
nected with  the  present  subject,  and  one  involving  at  times 
considerable  doubt,  is  whether  an  exception  in  the  operation 
of  one  of  two  or  more  covenants  in  a  deed  will  be  extended  to 

Jackson  v.  Winslow,  9  Cow.  13;  Comstock  v.  Smith,  1.3  Pick.  116; 
Trull  D.  Eastman,  3  Mete.  124. 

98  Brown  v.  Jackson,  3  Wheat.  452 ;  Van  Rensselaer  V.  Kearney,  1 1 
How.  325;  Sweet  v.  Brown,  12  Mete.  175;  Raymond  v.  Raymond,  10 
Cush.  132;  Hoxie  v.  Finney,  16  Gray  332;  Blodgett  V.  Hildreth,  103 
Mass.  488 ;  Bates  v.  Foster,  59  Me.  155 ;  Freeman  v.  Foster,  55  Me.  508 ; 
Williamson  v.  Test,  24  Iowa,  139;  White  v.  Brocaw,  14  Ohio  St.  344; 
Adams  v.  Ross,  30  N.  J.  L.  510. 

99Loomis  V.  Bedel,  11  N.  H.  74;  Mills  v.  Catlin,  22  Vt.  104;  Rowe  v. 
Heath,  23  Texas  614.  The  statutory  general  covenant  arising  from  the 
use  of  the  words  "  grant,  bargain  and  sell,"  is  held  to  be  limited,  in 
Missouri,  by  the  special  covenant  "  against  the  lawful  claims  and  de- 
mands of  the  grantor  and  those  under  whom  he  claims."  Miller  v. 
Bayless,  74  S.  W.  Rep.  648. 

1  3  Washburn  on  Real  Prop.  477. 

2  Lively  v.  Rice,  150  Mass.  171,  22  N.  E.  888;  Keller  V.  Ashford,  133 
U.  S.  610;  King  v.  Kilbride,  58  Conn.  109,  19  Atl.  Rep.  519. 

904 


CH.    XXIII.]  COVENANTS   IN    DEEDS.  §    (j_  J 

others,  so  as  to  restrict  their  operation.  Thus,  if  a  deed  con- 
tains a  covenant  against  incumbrances,  except  as  to  a  certain 
mortgage,  followed  by  a  general  covenant  of  warranty,  will 
that  exception  apply  to  the  warranty,  so  that  foreclosure  under 
that  mortgage  will  not  constitute  a  breach  of  the  covenant  of 
warranty?  This  question  is  always  determined  by  ascertain- 
ing the  declared  or  implied  intention  of  the  grantor.  If  the 
two  covenants  are  given  in  the  same  connection,  and  from 
that  close  connection  it  can  be  implied  that  the  parties  in- 
tended the  exception  to  apply  to  both  covenants,  both  will  be 
treated  as  special  covenants.  While,  on  the  contrary,  the 
latter  covenant  will  be  general  and  unaffected  by  the  excep- 
tion, if  there  does  not  appear  in  the  deed  to  be  any  intimate 
connection  between  the  two  covenants  and  the  exception.  In 
Ho  wells  V.  Richards  the  court  say:  "  He  (the  grantor)  might 
from  motives  of  prudence,  be  unwilling  to  subject  himself  to 
a  suit  for  the  existence  of  an  incumbrance,  which  he  is  willing 
to  covenant  shall  never  be  suffered  to  disturb -his  grantee," 
Where  the  exception  expressly  refers  to  the  covenant  of  seisin 
or  against  incumbrances,  the  presumption  is  very  strong  that 
it  does  not  apply  to  the  covenants  for  quiet  enjoyment  or  of 
warranty,' 

§  623.  Implied  covenants. —  At  common  law  the  operative 
word  "give"  in  a  deed  of  feoffment  raised  by  implication 
of  law  a  covenant  of  warranty  during  the  life  of  the  grantor.* 
And  so  also  there  is  an  implied  warranty  in  the  old  technical 
conveyance  of  exchange.^    So  also  are  there  implied  covenants 

sHowells  V.  Richards,  11  East  634;  Smith  v.  Compton,  3  B.  &  Ad. 
198;  Estabrook  v.  Smith,  6  Gray  572;  Cornell  v.  Jackson,  3  Cush.  606; 
Funk  V.  Voneida,  11  Serg.  &  R.  109;  Rowe  v.  Heath,  23  Texas  614; 
King  V.  Kilbride,  58  Conn.  109,  19  Atl.  Rep.  519. 

♦  Kent  V.  Welch,  7  Johns.  258;  Frost  v.  Raymond,  2  Caines  188. 

5  Dean  v.  Shelly,  57  Pa.  St.  427 ;  Bixler  v.  Sayler,  68  Pa.  St.  148.  But 
this  was  the  case  only  with  the  technical  conveyance,  called  exchange. 
There  was  no  implied  covenant  of  title,  if  the  exchange  was  effected  by 
means  of  mutual  deeds  of  bargain  and  sale.  Gamble  v.  McClure,  69 
Pa.  St.  284. 

905 


§  623  COVENANTS  IN  DEEDS.  [PART  III. 

in  leases.*  But,  as  a  general  rule,  in  the  conveyance  of  free- 
hold estates  in  this  country  there  are  no  implied  covenants, 
since  the  deeds  in  common  use  are  those  which  operate  under 
the  Statute  of  Uses,  and  they  do  not  raise  covenants  by  im- 
plication.^ But  in  a  number  of  the  States,  notably  Alabama, 
Arkansas,  California,  Delaware,  Illinois,  Iowa,  Mississippi, 
Missouri,  Pennsylvania  and  Texas,  statutes  have  been  enacted 
whereby  the  "operative  words,"  "grant,  bargain  and  sell," 
imply  general  covenants  of  seisin,  against  incumbrances,  and 
of  warranty  or  quiet  enjoyment.  The  statutes  vary  some- 
what as  to  details,  but  are  similar  in  general  effect.^  Whether 
these  statutory  covenants  are  restrained  in  their  operation  by 
the  assertion  of  a  special  express  covenant,  is  not  clearly  de- 
termined. There  can,  of  course,  be  in  a  deed  both  express 
and  implied  covenants,  and  both  can  stand  if  they  are  con- 
sistent. But  if  they  are  inconsistent,  the  natural  rule  would 
be  that  the  implied  covenant  would  yield  to  the  express  cove- 
nant.^ And  although  this  rule  seems  to  be  supported  by  the 
authorities  in  the  abstract,  it  is  difficult  at  times  to  reconcile 
their  decisions  in  the  particular  case  with  the  rule  above 
stated.^**     The  safest  course,   in  making  a  conveyance  with 

«  See  ante,  Sees.  144,  147. 

7  Allen  V.  Sayward,  5  Me.  227 ;  Bates  v.  Foster,  59  Me.  157 ;  Sanford 
V.  Travers,  40  N.  Y.  140;  Ricket  V.  Dickens,  1  Murph.  343;  De  Wolf  v. 
Hayden,  24  111.  529;  Walk.  Am.  Law,  381;  3  Washburn  on  Real  Prop. 
489. 

8  4  Kent's  Com.  473;  3  Washburn  on  Real  Prop.  489,  490;  Gratz  t?. 
Ewalt,  2  Binn.  95;  Funk  v.  Voneida,  11  Serg.  &  R.  109;  Latnam  r. 
Morgan,  1  Smed.  &  M.  Ch.  611;  Chambers  V.  Smith,  23  Mo.  174;  Brown 
V.  Tomlinson,  2  Greene  (Iowa)  527;  King  v.  Gilson,  32  111.  353.  See, 
Miller  v.  Bayless    (Mo.   1903),  74   S.  W.   Rep.  648;   Bullitt  v.  Caryell 

(Texas   1905),  85  S.  W.  Rep.  482. 

»Frontin  V.  Small,  2  Ld.  Raym.  419;  Merrill  v.  Frame,  4  Taunt.  329; 
Line  v.  Stevenson,  5  Bing.  N.  C.  183;  Schlencker  V.  Moxsy,  3  B.  &  C. 
792;  Dennett  v.  Atherton,  L.  R.  7  Q,  B.  316.  See,  Miller  v.  Bayless,  74 
S.  W.  Rep.  648. 

10  See,  Hawk  v.  McCullough,  21  111.  221;  Alexander  v.  Schreiber,  10 
Mo.  460;  Funk  V.  Voneida,  11  Serg.  &  R.  109;  Brown  v.  Tomlinson,  2 
Greene  (Iowa),  which  seems  to  oppose  the  doctrine  that  the  express 
906 


CH.    XXIII. ]i  COVENANTS    IN    DEEDS.  §    624 

special  covenants,  is  to  use  different  operative  words  from 
those  which  by  statute  imply  covenants  of  title.  Thus,  it  has 
been  held  under  the  Missouri  statute  that  covenants  are  not 
implied  in  a  deed  where  the  grantor  "bargains,  sells,  re- 
leases, quitclaims,  and  conveys. "  ^^  "^ 

§  624.  Who  may  maintain  actions  on  covenants  of  war- 
ranty.—  Like  covenants  of  quiet  enjoyment,  until  a  breach 
has  been  committed,  a  covenant  of  warranty  runs  with  the 
land  into  the  hands  of  the  assignee  and  heirs,  and  may  be 
sued  upon  by  the  assignee  or  heir  who  is  in  possession  when 
the  breach  occurs,  whether  the  alienation  is  voluntary  or  in- 
voluntary. After  a  breach  there  can  be  no  assignment  at 
common  law,  and  it  is  still  universally  true  that  the  covenant 
then  ceases  to  run  with  the  land.^-  But  in  order  that  a  cove- 
nant may  run  with  the  land  to  assignees,  the  grantee  must 
by  the  conveyance  acquire  the  actual  or  constructive  seisin. 
If  at  the  time  of  the  conveyance  the  grantor  had  neither  title 
nor  seisin,  nothing  passes  by  the  deed,  and  the  covenant  re- 
mains in  the  grantee,  and  cannot  be  enforced  by  an  assignee." 

covenant  will  exclude  the  implied  covenant,  while  Weems  v.  McCaughan, 
7  Smed.  &  M.  422,  supports  the  rule. 

11  Gibson  v.  Chouteau,  39  Mo.  566;  Valle  v.  Clemens,  18  Mo.  486. 

izHurd  V.  Curtis,  19  Pick.  459;  Slater  r.  Rawson,  1  Mete.  450; 
White  V.  Whitney,  Mete.  81;  Withy  v.  Mumford,  5  Cow.  137;  Ford  v. 
Walsworth,  19  Wend.  334;  Moore  v.  Merrill,  17  N.  H.  81;  Dickinson  v. 
Hoomes,  8  Gratt.  353;  Lawrence  v.  Senter,  4  Sneed  52;  Brown  v.  Metz, 
33  111.  339;  Devin  v.  Hendershott,  32  Iowa  192;  Preiss  v.  LePoidevin, 
19  Abb.  N.  C.  123;  Allen  v.  Kennedy,  91  Mo.  324,  2  S.  W.  Rep.  142. 
"  A  covenant  in  a  deed  *  that  they  are  free  from  all  incumbrances '  does 
not  run  with  the  land,  so  as  to  invest  a  remote  grantee  thereof  with  a 
right  of  action  against  the  assignor."  Waters'  Estate  v.  Bagley  (Neb. 
1902),  92  N.  W.  Rep.  637. 

13  Slater  v,  Rawson,  1  Mete.  450;  Bartholomew  v.  Candee,  14  Pick. 
167;  Beddoe  v.  Wadsworth,  21  Wend.  120;  Overfield  v.  Christie,  7  Serg. 
&  R.  177;  Dickinson  v.  Hoomes,  8  Gratt.  353;  Fitzhugh  v.  Croghan,  2 
J.  J.  Marsh.  429.  But  see  Wead  v.  Larkin,  54  111.  489;  Van  Court 
V.  Moore,  26  Mo.  92;  Allen  V.  Kennedy.  91  Mo.  324,  2  S.  W.  Rep,  142. 
See,  Miller  r.  Bayless   (Mo.  1903),  74  S.  W.  Rep.  648. 

907 


§  624  COVENANTS  IN  DEEDS.  [PART  III. 

For  actual  adverse  possession  under  a  paramount  title  at  th^ 
time  of  conveyance  is  itself  a  breach  of  the  covenant."  This 
lack  of  seisin  does  not  prevent  the  covenant  from  operating 
as  an  estoppel  upon  the  subsequently  acquired  title.^^  The 
covenant  of  warranty  can  be  and  is  impliedly  apportioned 
between  the  assignees  by  a  conveyance  of  parts  or  portions  of 
the  land,  to  which  the  covenant  is  attached,  to  different 
grantees.  They  each  have  a  several  and  independent  action 
upon  the  covenant  in  respect  to  their  portion  of  the  land.^* 
The  assignee  in  possession  at  the  time  of  the  breach  is  gen- 
erally the  only  person  who  can  maintain  an  action  upon  the 
covenant.^^  When  his  immediate  grantor  also  warranted  the 
land  to  him,  the  assignee  may  bring  suit  on  either  or  both  of 
the  covenants,  but  of  course  can  have  but  one  recovery.^^  But 
where  there  are  successive  covenants  of  warranty,  given  by 
successive  grantors,  under  certain  circumstances  an  exception 
arises  to  the  general  rule  just  stated,  that  the  assignee  in  pos- 
session is  the  only  person  who  can  maintain  an  action  for  the 
breach  of  the  covenant.  Thus,  if  the  assignee  brings  suit,  as 
he  may,  against  any  one  of  the  covenantors  but  the  first  or 
earliest,  and  recovers  of  him,  this  covenantor  is  remitted  to 
his  right  to  be  indemnified  by  the  prior  covenantors,  and  may 
maintain  action  upon  their  covenants.  But  such  cove- 
nantor can  only  establish  his  right  to  institute  the  suit  by 
showing  that  the  claims  of  the  subsequent  assignees  have 
been  satisfied  in  full.^®     And  in  order  that  the  prior  cove- 

14  Moore  v.  Vail,   17   111.   185. 

isMcCasker  v.  McEvery,  9  R.  I.  528;  Wead  f.  Larkin,  54  111.  489; 
Van  Court  v.  Moore,  26  Mo.  92. 

16  3  Washburn  on  Real  Prop.  470 ;  Kane  V.  Sanger,  14  Johns.  89 ; 
Dickinson  r.  Hoomes,  8  Gratt.  353. 

17  Bickford  v.  Page,  2  Mass.  455;  Wheeler  v.  Sohier,  3  Cush.  219; 
Kane  r.  Sanger,  4  Johns.  89;  Ford  v.  Walsworth,  19  Wend.  334; 
Thompson  r.  Sanders,  5  B.  Mon.  357;  Libby  V.  Hutchinson  (N.  H. 
1903),  56  Atl.  Rep.  547. 

18  Withy  V.  Mumford,  5  Cow.  137;  Markland  i".  Crump,  1  Dev.  &  B. 
95. 

19  Withy  V.  Mumford,  5  Cow.  137;   Suydam  v.  Jones,  10  Wend.  185; 

908 


CH.    XXIII.]  COVENANTS   IN   DEEDS.  §    625 

nantor  may  be  bound  by  the  judgment  against  the  interme- 
diate covenantor,  it  is  now  generally  recognized  that  the  latter 
may  vouch  in  his  prior  covenantors,  and  if  they  fail  to  defend 
the  title  and  eviction  follows,  they  cannot  in  the  subsequent 
suit  against  themselves  set  up  the  defense  that  the  eviction 
was  not  under  a  paramount  title. ^°  The  notice  of  the  pend- 
ency of  the  suit,  in  order  to  be  effectual  in  binding  the  prior 
covenantors,  must  be  certain  and  unequivocal.  But  it  need 
not  be  made  a  matter  of  record.  A  verbal  or  written  notice 
dehors  the  court,  or  the  voluntary  appearance  of  the  prior 
covenantor  in  the  suit  will  be  sufficient.  ^^ 

§  625.  Damages,  what,  may  be  recovered. —  If  the  action  is 
on  the  covenant  of  seisin,  and  the  covenant  is  satisfied  by  the 
transfer  of  the  actual,  though  tortious,  seisin,  and  broken,  if 
at  all,  by  the  want  of  seisin  at  the  time  of  conveyance,  the 
measure  of  damages  is  the  consideration  paid,  if  the  con- 
sideration can  be  ascertained,  and  if  not,  the  value  of  the  land 
at  the  time  of  conveyance.  And  in  determining  the  consider- 
ation, parol  evidence  is  admissible  to  contradict  and  control 
the  statement  of  consideration  in  the  deed.^^     If  the  grantor 

Thompson  v.  Shattuck,  2  Mete.  618;  Wheeler  v.  Sohier,  3  Cush.  222; 
Markland  v.  Crump,  1  Dev.  &  B.  94;  Thompson  v.  Sanders,  5  B.  Mon. 
357. 

20  Chamberlain  v.  Preble,  11  Allen  373;  Boston  v.  Worthington,  10 
Gray  498;  Merritt  v.  Morse,  108  Mass.  276;  Andrews  v.  Gillespie,  47 
N.  Y.  487;  Cooper  v.  Watson,  10  Wend.  205;  Littleton  i\  Richardson, 
34  N.  H.  187;  Smith  v.  Sprague,  40  Vt.  43;  Hines  v.  Allen,  34  Conn. 
195 ;  Chapman  v.  Holmes,  10  N.  J.  L.  20 ;  Paul  v.  Witman,  3  Watts  & 
S.  409;  Martin  v.  Cowles,  2  Dev.  &  B.  101;  Gregg  v.  Richardson,  25 
Ga.  570;  St.  Louis  v.  Bissell,  46  Mo.  157;  McConnell  v.  Downs,  48  111. 
271;  Claycomb  V.  Munger,  51  111.  377;  Somers  v.  Schmidt,  24  Wis.  417, 
1  Am.  Rep.   191. 

21  Chamberlain  v.  Preble,  11  Allen  373;  Littleton  v.  Richardson,  34 
N.  H.  187;  Miner  v.  Clark,  15  Wend.  427;  Andrews  t;.  Gillespie,  47  N. 
Y.  487;  Paul  v.  Witman,  3  Watts  &  S.  410;  Crisfield  v.  Storr,  36  Md. 
129;  Somers  v.  Schmidt,  24  Wis.  417,  1  Am.  Rep.  191. 

22  Bingham  v.  Weiderwax,  1  N.  Y.  614 ;  Morris  v.  Phelps,  5  Johns.  49 ; 
Tucker  v.  Clarke,  2   Sandf.  Ch.  96;    Smith   t;.   Strong,   14   Pick.    128; 

909     . 


§  625  COVENANTS  IN  DEEDS.  [PART  III. 

subsequently  acquires  the  paramount  title  before  his  granttv 
has  been  evicted  by  the  adverse  holder  of  the  title,  inasmuch 
as  the  grantee  acquires  in  certain  cases  the  benefit  of  that  title 
under  the  doctrine  of  estoppel,  the  grantee  can  then  obtain 
only  nominal  damages.  But  full  damages  are  recoverable,  if 
eviction  has  taken  place  before  the  grantor's  acquisition  of 
the  superior  title.  ^'  And  so  also,  if  the  covenant  of  seisin  be 
construed  as  covenanting  for  an  indefeasible  seisin,  and  the 
grantor  at  the  time  of  the  conveyance  has  a  tortious  seisin, 
only  nominal  damages  may  be  recovered,  unless  the  grantee 
has  been  actually  evicted,  or  has  incurred  expense  in  pur- 
chasing the  paramount  title,  when  in  one  case  the  considera- 
tion, and  in  the  second  case  the  expenses,  will  be  the  measure 
of  damages,  as  in  suits  on  the  covenant  against  incum- 
brances.^* In  the  action  on  the  covenant  against  incum- 
brances the  measure  of  damages  varies  with  circumstances. 
If  the  covenant  is  merely  broken  by  the  existence  of  the  in- 
cumbrances, and  the  grantee  remains  undisturbed  in  his  pos- 
session, as  would  be  the  case  with  an  outstanding  mortgage, 
nominal  damages  can  alone  be  recovered.-^  But  if  the  in- 
cumbrance is  of  a  permanent  nature,  as  an  existing  easement, 
and  the  enjoyment  of  the  land  is  diminished  by  the  exercise 
of  the  easement,  the  measure  of  damages  will  be  the  loss  in 

Hodges  V.  Thayer,  110  Mass.  28G;  Cornell  v.  Jackson,  3  Cush.  506; 
Lee  V.  Dean,  3  Whart.  331;  Farmers'  Bank  v.  Glenn,  68  N.  C.  35;  Cox 
V.  Strode,  2  Bibb  277;  Lacey  v.  Marnan,  37  Ind.  168;  Kincaid  V.  Brit- 
tain,  5  Sneed  123;  Rich  v.  Johnson,  2  Pinney  88;  Lambert  V.  Estes,  99 
Mo.  604,  13  S.  W.  Rep.  284. 

23  Baxter  v.  Bradbury,  20  Me.  260 ;  Blanchard  r.  Ellis,  1  Gray  195 ; 
King  V.  Gilson,  32  111.  356.  "  The  measure  of  damages  for  a  breach  of 
a  covenant  of  warranty  of  title  is  the  consideration  money  lost  to  the 
buyer,  and  not  the  value  of  the  property,  less  any  unpaid  considera- 
tion." West  Coast  Mfg.  &  Inv.  Co.  v.  West  Coast  Imp.  Co.  (Wash. 
1903),  72  Pac.  Rep.  455. 

24  Whiting  V.  Dewey,  15  Pick.  428 ;  Norman  v.  Winch,  65  Iowa  263 ; 
Conrad  v.  Druids  Grand  Grove,  60  Wis.  258;  Holladay  v.  Menefee,  30 
Mo.  App.  207.    See,  Newbury  v.  Lucas  (Iowa),  101  N.  W.  Rep.  730. 

25Wyman  v.  Ballard,   12  Mass.   304;   Tufts   V.  Adams,  8  Pick.  547; 
Funk  V.  Voneida,  11  Serg.  &  R.  112, 
910 


CH.    XXIII.]  COVENANTS   IN   DEEDS.  §    625 

the  value  of  the  property,  which  is  occasioned  by  the  enforce- 
ment and  exercise  of  the  easement.^"  If  the  incumbrance  be 
an  outstanding  mortgage,  or  an  attachment  or  execution  or 
municipal  assessment,  the  purchaser  need  not  wait  for  the 
enforcement  of  these  liens ;  he  may  proceed  at  once  to  satisfy  ' 
them,  and  then  recover  of  the  grantor  on  his  covenant  against 
incumbrances  the  expenses  incurred  in  extinguishing  the 
mortgage  or  removing  the  attachment,-^  provided  the  sum  so 
paid  does  not  exceed  the  purchase  price  of  the  land :  or  if  he 
is  evicted  before  suit  is  brought  on  the  covenant,  he  may  re- 
cover the  consideration  paid  with  interest.-*  And  where  dam- 
ages are  recovered  in  satisfaction  of  the  breach  of  the  cove- 
nant of  seisin,  or  against  incumbrances,  by  an  actual  eviction, 
the  grantor  is  remitted  to  his  title  to  the  land,  and  the  grantee 
is  estopped  from  claiming  any  rights  in  the  same  under  his 
deed.^*  The  courts,  although  uniform  in  their  decisions  as 
to  the  measure  of  damages  in  actions  upon  the  covenants  of 
seisin  and  against  incumbrances,  are  divided  as  to  the  proper 
rule  to  be  applied  to  the  covenants  for  quiet  enjoyment  and 
of  warranty.  The  majority  of  the  courts,  following  the  prin- 
ciple of  the  ancient  feudal  warranty,  hold  that  the  true 
measure  of  damages  is  the  consideration  paid,  and  interest  to 
date  of  eviction  or  of  the  judgment.     Such  is  the  rule  in 

2«Hayne8t>.  Young,  36  Me.  557;  Lamb  r.  Danforth,  59  Me.  322,  8 
Am.  Kep.  426;  Harlow  v.  Thomas,  15  Pick.  66;  Batchelder  v.  Sturgis,  3 
Cush.  301;  Foster  V.  Foster,  62  N.  H.  46;  Smith  v.  Davis  (Kan.),  24 
Pac.  Rep.  428.     See.  McBride  v.  Burns   (Texas),  88  S.  W.  Rep.  394. 

27  Delavergne  v.  Morris,  7  Johns.  358 ;  Estabrook  v.  Smith,  6  Gray 
572;  Johnson  v.  Collins,  115  Mass.  892;  Funk  v.  Voneida,  11  Serg.  & 
R.  113;  Stambaugh  v.  Smith,  23  Ohio  St.  584;  Richard  f.  Bent,  59  111. 
38,  14  Am.  Rep.  1 ;  Eaton  v.  Lyman,  30  Wis.  41 ;  Petrie  v.  Folz,  54  N. 
Y.  Super.  223;  Hartshorn  v.  Cleveland  (N.  J.),  19  Atl.  Rep.  974;  Col- 
lier V.  Cowger,  52  Ark.  322,  12  S.  W.  Rep.  702;  Bradshaw  r.  Crosby 
(Mass.),  24  N.  E.  Rep.  47.  See  McCrillis  v.  Thomas  (Mo.  1905),  85 
S.  W.  Rep.  673. 

28  Chapel  V.  Bull,  17  Mass.  213;  Blanchard  v.  Ellis,  1  Gray  195; 
Lambert  v.  Estes,  99  Mo.  604,  13  S.  W.  Rep.  284. 

29  Porter  v.  Hill,  9  Mass.  34;  Blanchard  t>.  Ellis,  1  Gray  195;  Kin- 
caid  V.  Brittain,  6  Sneed  124. 

911 


§  626  COVENANTS  IN  DEEDS.  [PART  III. 

England,  the  United  States  courts,  and  in  Arkansas,  Cali- 
fornia, Georgia,  Indiana,  Iowa,  Kentucky,  Missouri,  Mary- 
land, Nevada,  New  Hampshire,  New  Jersey,  New  York,  North 
Carolina,  Ohio,  Pennsylvania,  Tennessee,  Virginia  and  Wis- 
consin.^" But  in  Connecticut,  Vermont,  Maine  and  Massa- 
chusetts the  covenant  is  treated  as  one  of  indemnity,  and  the 
measure  of  damages  is  taken  to  be  the  value  of  the  land  at 
the  time  of  eviction.^^  If  the  outstanding  title  is  bought  in, 
the  price  paid  for  the  same  is  the  true  measure  of  damages 
for  the  breach  of  the  warranty.^-  In  the  case  of  breach  of 
any  one  of  the  covenants  of  title,  the  covenantee  can  recover 
as  damages  all  costs  which  are  assessed  against  the  covenantee 
as  defendant  of  the  title  to  the  land.^"*  But  he  cannot  re- 
cover the  costs  of  a  suit  which  resulted  in  his  favor.^^ 

§  626.  What  covenants  run  with  the  land. —  In  order  that  a 
covenant  may  run  with  the  land,  and  bind  the  assignees,  it 
must  bear  an  intimate  relation  with  and  concern  the  estates  or 
lands  conveyed.  It  runs  with  the  land,  so  as  to  bind  the  cove- 
nantor's assignees,  when  the  performance  of  it  is  expressly 

80  Foster  v.  Thompson,  41  N.  H.  379;  Lewis  v.  Campbell,  8  Taunt. 
715;  Mack  v.  Patchin,  42  N.  Y.  167,  1  Am.  Rep.  506;  MeGarry  v. 
Hastings,  39  Cal.  360;  Crisfield  v.  Storr,  36  Md.  150;  Terry  v.  Diaben- 
statt,  68  Pa.  St.  400;  Hopkins  f.  Lee,  4  Wheat.  118;  Williams  v.  Beek- 
man,  2  Dev.  483;  Penrr  v.  Duval,  9  B.  Men.  49;  Lambert  v.  Estes,  99 
Mo.  604,  13  S.  W.  Rep.  ?84;  Boyer  v.  Amet,  41  La.  An.  721,  6  So.  Rep. 
734;  Collier  v.  Cowger.  52  Ark.  322,  12  S.  W.  Rep.  702;  McGuffey  v. 
Humes,  85  Tenn.  26,  1  -S.  W.  Rep.  506.  Interest  is  not  recoverable  if 
a  judgment  for  mesne  profits  has  not  been  recovered  of  the  covenantee. 
Collier  v.  Cowgill,  52  Ark.  322,  12  S.  W.  Rep.  702. 

81  Lamb  v.  Danforth,  5P  Me.  322,  8  Am.  Rep.  426 ;  Downer  V.  Smith, 
38  Vt.  464;  Horsford  v.  Wright,  Kirby  3;  Smith  v.  Strong,  14  Pick. 
128 ;  Bledsoe  v.  Beiler,  66  '^exas  437,  1  S.  W.  Rep.  164. 

82Petrie  v.  Folz,  544  N.  V.  Super.  Ct.  223;  Clapp  v.  Herdman,  25  111. 
App.  509. 

33McAlester  v.  Landers,  T-O  Cal.  79,  11  Pac.  Rep.  505. 

84  Smith  V.  Parsons,  33  \».  Va.  644,  11  S.  E.  Rep.  68.     "Attorney's 
fees  paid  in  defense  of  the  title  cannot  be  recovered  as  a  part  of  the 
damages  in  an  action  for  br»»Hch  of  warranty."     Cates  v.  Field    (Tex. 
Civ.  App.  1905),  85  S.  W.  Re]».  62. 
912 


CH.    XXm.]  COVENANTS   IN   DEEDS.  §    626 

or  by  implication  made  a  charge  upon  the  land.*"'  On  the 
other  hand,  the  covenants  will  run  with  the  land  so  as  to  be 
enforceable  by  the  successive  assignees  of  the  land,  when  the 
performance  of  the  covenant  affects  the  value  of  the  land. 
Thus,  covenants  for  quiet  enjoyment,  and  of  warranty,  run 
with  the  land.^^  So  also  a  covenant  that  the  grantor  shall 
not  erect  and  maintain  structures  upon  an  adjoining  lot,  or 
erect  another  mill-site  on  some  stream.^^  In  order  that  a 
covenant  may  run  with  the  land  there  must  be  a  privity  of 

35  Thus,  for  example,  covenants  of  rent,  or  for  the  payment  of  any 
other  sum  which  is  made  a  charge  upon  the  land.  Hurst  f.  Rodney, 
1  Wash.  375;  Sandwith  v.  De  Silver,  1  Browne  (Pa.)  221;  Astor  v. 
Miller,  2  Paige  68;  Van  Rensselaer  v.  Dennison.  35  N.  Y.  393;  Worth- 
ington  V.  Hewes,  19  Ohio  St.  67;  Thomas  v.  Von  KapflF,  6  Gill  &  J. 
372;  Conduit  v.  Ross,  102  Ind.  166;  Martin  v.  Martin  (Kan.),  24  Pac. 
Rep.  418.  See  ante,  Sec.  147.  Covenants,  not  to  use  the  land,  or  only 
to  use  it,  in  the  specified  manner.  Barron  r.  Richards,  3  Edw.  Ch. 
96;  s.  c.  8  Paige  351;  St.  Andrews  Church  Appeal.  67  Pa.  St.  512;  Win- 
field  V.  Henning,  21  N.  J.  L.  188;  Jeter  v.  Glenn,  9  Rich,  L.  374; 
Thomas  v.  Poole,  7  Gray  83 ;  Clement  f .  Burtis  ( N.  Y. ) ,  24  N.  E.  Rep. 
1013;  Graves  v.  Deterling,  120  N.  Y.  447,  24  N.  E.  655.  See  ante,  Sec. 
433.  A  covenant  to  maintain  fences,  or  other  structures,  or  to  permit 
the  enjoyment  of  any  other  easement.  Bronson  V.  Coffin,  108  Mass. 
•175;  DuflFy  v.  N.  Y.,  etc.,  R.  R.,  2  Hill  496;  Brewer  V.  Marshall,  18  N. 
J.  Eq.  337;  Norfleet  v.  Cromwell,  64  N.  C.  1;  Walsh  r.  Barton,  24  Ohio 
St.  28 ;  Nye  V.  Hoyle,  120  N.  Y.  195,  24  N.  E.  Rep.  1 ;  Pittsburg,  etc., 
R.  R.  Co.  V.  Reno,  22  111.  App.  470;  s.  c.  123  111.  273,  14  N.  E.  Rep.  195; 
Midland  Ry.  Co.  v.  Fisher  (Ind.),  24  N.  E.  Rep.  756.  758;  Avery  V. 
N.  Y.  Cent.,  etc.,  R.  R.  Co.  (N.  Y.),  24  N.  E.  Rep.  20.  24.  Covenant 
for  improvements.  Bailey  v.  Richardson,  66  Cal.  416.  But  an  execu- 
tory covenant  to  erect  a  party-wall  will  not  run  with  the  land,  so  as 
to  bind  the  assignees  of  the  covenantor.  Cole  r.  Hushes,  54  N.  Y.  444, 
13  Am.  Rep.  611.     See  Miller  f.  Noonan,  83  Mo.  343. 

3«  Wilder  v.  Davenport,  58  Vt.  642.  But  see,  Cemousky  v.  Fitch 
(Iowa  1903),  96  N.  W.  Rep.  754. 

37  Trustees  of  Watertown  v.  Cowen,  4  Paige  510;  Norman  v.  Wells, 
17  Wend.  136;  Dailey  v.  Beck,  Bright  107;  Brew  f.  Van  Denman,  6 
Heisk.  433.  To  the  same  effect  see  Norcross  v.  James,  140  Mass.  188; 
Maxon  v.  Lane,  102  Ind.  364;  Lewis  i?.  Ely,  92  N.  Y.  S.  705,  100  App. 
Div.  252. 

58  913 


§  627  COVENANTS  IN  DEEDS.  [PART  III. 

estate  between  the  covenantor  and  covenantee.'*  And  it  can 
only  be  assigned  with  the  land.'*  Where  the  land  consists  of 
several  parcels,  or  the  land  is  divided  up  into  parcels,  and 
they  are  conveyed  to  different  grantees,  the  covenant  is  di- 
vided up  among  them,  and  each  may  sue  or  be  sued  on  his 
portion  of  the  covenant.*" 

§  627.  When  breach  of  covenant  works  a  forfeiture  of  estate. 

—  The  breach  of  a  covenant  running  with  the  land  will  not  of 
itself  work  a  forfeiture  of  the  estate,  to  which  it  is  annexed. 
The  breach  only  gives  rise  to  a  personal  action  for  damages  on 
the  covenant,  or  an  equitable  action  for  its  enforcement. 
But  it  may  by  express  limitation  be  made  to  operate  as  a  con- 
dition as  well  as  a  covenant.  In  such  a  case,  the  breach  of  the 
covenant  is  a  breach  of  a  condition  subsequent,  and  the 
grantor  may  re-enter.  Where  the  forms  of  expression  usual 
in  the  creation  of  a  condition,  such  as  "on  condition,"  "pro- 
vided always,"  and  the  like,  are  employed,  nothing  further  is 
needed  to  give  the  covenant  the  character  and  force  of  a  con- 
dition. But  generally,  if  other  words  are  used,  it  is  neces- 
sary that  the  covenant  should  contain  a  clause  of  forfeiture, 
or  the  reservation  of  a  right  of  entry  upon  the  breach  of  the 
covenant,  in  order  that  the  breach  may  work  a  forfeiture  of 
the  estate.*^ 

38  Morse  v.  Aldrich,  19  Pick.  449;   Cole  V.  Hughes,  54  N.  Y.  444,  13 
Am.  Eep.  61 1 ;  Kirkpatrick  v.  Peshine,  24  N.  J.  Eq.  20G. 

3»  Wilson  V.  Wiedenham,  51  Me.  566;  Randolph  V.  Kinney,  3  Rand. 
394 ;  Nesbit  v.  Brown,  1  Dev.  Eq.  30 ;  Martin  v.  Gordon,  24  Ga.  533. 

40Astor  V.  Miller,  2  Paige  68;  Johnson  v.  Blydenburg,  31  N.  Y.  427. 

^iRawson  v.  Uxbridge,  7  Allen  125;  Chapin  v.  Harris,  8  Allen  594; 
Ayer  17.  Emery,  14  Allen  69;  Packard  v.  Ames,  10  Gray  325;  Moore  V. 
Pitts,  53  N.  Y.  85;  Walters  v.  Breden,  70  Pa.  St.  235;  Supervisors,  etc., 
V.  Patterson,  56  111.  119;  Board,  etc.,  V.  Trustees,  etc.,  63  111.  204.  See 
Parsons  v.  Miller,  18  Wend.  564;  Emerson  v.  Simpson,  43  N.  H.  475; 
Sharon  Iron  Co.  v.  Erie,  41  Pa.  St.  341 ;  Gadberry  v.  Sheppard,  27  Miss. 
203.  See,  also,  ante,  Sec.  201,  n.  For  conditional  grant  of  public  lands, 
by  Congress  for  railroad  purposes,  see,  Oregon  R.  R.  v.  Quigley  ( Idaho 
1905),  80  Pac.  Rep.  401. 
914 


CHAPTER  XXIV. 

TITLE  BY  DEVISE. 

Section  628.  Definition  and  historical  outliae. 

629.  By  what  law  are  devises  governed. 

630.  The  requisites  of  a  valid  will. 

631.  A  suflBcient  writing. 

632.  What  signing  is  necessary.  . 

633.  Proper  attestation,  what  is, 

634.  Who  are  competent  witnesses. 

635.  Who  may  prepare  the  will  —  Holographs. 

636.  What  property  may  be  devised. 

637.  A  competent  testator,  who  is. 

638.  \yho  may  be  devisees  —  What  assent  necessary. 
';                639.  Devisee  incapacitated  by  murder  of  testator. 

640.  Devisee  and   devise  must  be  clearly  defined  —  Parol  evi- 
dence. 
'  641.  Devisees  of  charitable  uses. 

642.  Lapsed  devises  —  What  becomes  of  them. 

643.  Revocation  of  wills. 

644.  Joint  or  mutual  wills.  ■ 

645.  Revocation  by  destruction  of  will. 

646.  Effect  of  alterations  of  will  after  execution. 

647.  Revocation  by  marriage  and  issue. 

648.  Revocation  by  alteration  or  exchange  of  property. 

649.  Revocation  by  subsequent  will  "or  codicil.  i 

650.  Defective  will  confirmed  by  codicil. 

651.  Contingent  wills. 

652.  Probate  of  will, 

653.  Agreements  as  to  testamentary  disposition  of  property. 

§  628.  Definition  and  historical  outline. —  A  title  by  devise 
is  that  title  to  lands  which  is  created  by  will.  The  term 
"devise"  is  properly  applicab.e  only  to  real  estate.  The 
transfer  by  will  of  personal  property,  or  of  chattel  interests. 
in  real  property,  is  called  a  bequest.  A  will  is  an  instrument 
of  conveyance,  by  which  the  testator  undertakes  to  direct 

915 


§    C2S  TITLE   BY   DEVISE.  [PART    111. 

the  disposition  of  his  property  after  his  death.^  It  has  al- 
ways been  possible  at  common  law  to  make  a  testamentary  dis- 
position of  personal  property.  Under  the  Saxon  laws  lands 
were  devisable  as  freely  as  they  were  alienable ;  but  upon  the 
Conquest  of  England  by  the  Normans,  the  same  policy  which 
dictated  the  deprivation  of  the  right  of  alienation  called  for 
the  abolition  of  the  right  to  dispose  of  lands  by  will.  Ac- 
cordii>gly,  lands  could  not,  after  the  Norman  Conquest,  be 
devised.  But  upon  the  introduction  of  the  'doctrine  of  uses 
means*  were  discovered,  whereby  such  a  disposition  could  be 
made  It  will  be  remembered  that,  in  formulating  the  law  of 
use&,  courts  of  equity  only  adopted  those  rules  governing 
legal  estates  which  were  conformable  to  the  policy  of  the 
court  in  respect  to  uses.  Hence  they  declared  that  uses  were 
devisable,  although  the  legal  estates  which  supported  them 
were  not.  When  the  Statute  of  Uses  was  passed,  the  use  be- 
came united  to  the  legal  estate,  and  this  mode  of  devising 
lands  was  taken  away.  But  in  connection  with  uses  there 
had  been  developed  the  doctrine  of  powers,  whereby  one  could 
convey  lands  to  the  use  of  whomever  the  grantor  should  ap- 
point by  will.  The  appointee  would  take,  not  by  force  of 
the  vtill,  but  under  the  deed  of  conveyance.-  And  after  the 
passage  of  the  Statute  of  Uses,  as  soon  as  he  was  appointed 
by  the  will  of  the  grantor,  the  use  thereby  created  and  vest- 
ing in  him  was  immediately  executed  by  the  statute,  and  he 
acquired  the  legal  estate  as  effectually  as  if  the  lands  could 
have  been  devised  directly  to  him.  Mr.  Washburn  states  that 
the  effect  of  the  Statute  of  Uses  "was  to  destroy  the  power 
of  devising  lands  by  the  way  of  uses;  and  they  accordingly 
became  undevisable,  and  remained  so  until  the  Statute  of 
Wills." '  This  is  true,  so  far  as  the  power  to  devise  a  vested 
use  is  concerned.     But  a  power  of  appointment  by  will  was 

iBunyan  v.  Bigelow    (Conn.    1905),  60  Atl.  Rep.  266;  In  re  Davis 
Will,  02  N.  Y.  S.  968,  45  Misc.  554.  ^ 

2  See  ante,  Sec.  403. 
8  3  Washburn  on  Real  Prop.  501,  502. 
916 


CH,   XXIV.]  TITLE   BY   DEVISE.  §    629 

not  affected  by  the  statute.  The  use  created  by  the  exercise 
of  the  power  is  contingent  until  the  power  is  exercised,  and 
hence  the  statute  could  not  operate  upon  it,  so  as  to  destroy 
the  power  to  make  a  devise  in  this  way.  At  any  rate,  such  a 
disposition  could  be  made  before  the  Statute  of  Uses,  and  it 
has  universally  been  recognized  as  an  effective  mode  of  dispo- 
sition since  the  Statute  of  Wills,  and  independent  of  the 
latter  statute.  Furthermore,  no  reason  has  been,  or  can  be, 
assigned  why  it  was  not  just  as  effective  between  the  enact- 
ments of  the  Statute  of  Uses  and  the  Statute  of  .Wills,  which 
was  enacted  in  the  32  and  34  Hen.  VIII,  which  expressly  en- 
abled the  proprietors  of  lands  to  dispose  of  their  legal  estates, 
without  resorting  to  the  indirect  mode  of  creating  a  power  of 
appointment.  The  effect  of  the  Statute  of  Wills,  and  of 
similar  ones  passed  in  the  different  States  of  the  American 
Union,  constitutes  the  subject  of  this  chapter. 

§  629.  By  what  law  are  devises  governed. —  Like  all  other 
legal  questions  arising  in  respect  to  the  rights  in,  or  issuing 
out  of,  lands,  the  legality  and  effect  of  devises  are  governed 
by  the  law  of  the  place  where  the  land  is  situated,  the  lex  loci 
rei  sit(B.  In  determining,  therefore,  the  validity  of  a  will  of 
real  property,  the  place  where  the  will  happens  to  be  made 
is  of  no  importance.  The  provisions  of  the  lex  loci  rei  alone 
govern.*  And  if  an  invalid  will  is  executed  before  the  enact- 
ment of  a  law  which  makes  such  wills  valid,  and  the  testator 
dies  subsequent  to  such  enactment,  the  latest  enactment  will 

♦  Story  Confl.  Laws,  Sec.  474;  4  Kent's  Com.  51.3;  1  Redf.  on  Wills 
.387;  Kerr  v.  Moon,  9  Wheat.  56.5;  U.  S.  V.  Crosby,  7  Cranch  II .=5; 
Basoom  v.  Albertson,  34  N.  Y.  584;  Morrison  V.  Campbell,  2  Rand.  200; 
Halman  V.  Hopkins,  27  Texas  .38 ;  Swearingen  V.  Morris,  14  Ohio  St. 
424;  Johnson  v.  Copeland,  35  Ala.  .521;  Richards  r.  Miller,  62  111. 
417;  Cornelison  t*.  Browning,  10  B.  Mon.  425;  Morris  v.  Harris,  15 
Cal.  226;  Castens  V.  Murray  (Ga.  1905),  50  S.  E.  Rep.  131;  Succession 
of  Haslintz  (La.),  38  So.  Rep.  174;  Coy  v.  Goze  (Tex.),  84  S.  W.  Rep. 
441;  Haggart  V.  Ranney    (Ark.),  84  S.  W.  Rep.  703. 

917 


§    631  TITLr.   BY    DEVISE.  [PART   III. 

govern  the  validity  of  the  will.'*  But  in  respect  to  the  inter- 
pretation of  a  will,  since  the  object  of  all  efforts  at  interpre- 
tation is  to  ascertain  the  intention  of  the  testator,  it  seems  to 
be  the  established  rule  that  the  law  of  the  domicile  in  force 
at  the  making  of  the  will  will  govern,  unless  the  testator  ap- 
pears to  have  had  the  provisions  of  the  lex  loci  in  mind.* 
The  lex  loci  rei  sitcB  governs  chattel  interests  in  lands  as  well 
as  in  real  estate.  Leaseholds  are,  therefore,  governed  by  that 
law.^ 

§  630.  The  requisites  of  a  valid  will. —  The  following  may 
be  mentioned  as  the  principal  requisites  of  a  will:  A  suf- 
ficient writing,  proper  attestation,  subject-matter,  a  compe- 
tent testator,  a  competent  devisee. 

§  631.  A  sufficient  writing.— The  statute  32  Hen.  VIII 
empowers  the  holders  of  lands  to  dispose  of  them  by  their  last 
will  and  testament  in  writing.  No  particular  form  of  instru- 
ment is  prescribed,  and  none  is  required,  provided  the  words 
and  forms  of  expression  used  sufficiently  indicate  the  inten- 
tion to  make  a  will,  and  describe  clearly  the  property  upon 
which  the  will  is  to  operate  and  the  person  to  whom  it  shall 
go.*  A  will  is  valid,  if  properly  signed  and  attested,  al- 
though it  is  written  in  a  language  which  the  testator  did  not 
understand."     Words   of   transfer   are   of   course   needed   in 

BLearned's  Estate,  70  Cal.  140,  11  Pac.  Rep.  587;  Yocum  v.  Porter, 
134  Fed.  Rep.  205. 

6  2  Greenl.  on  Ev.,  Sec.  671;  Story  on  Confl.,  Sec.  479  h.  But  see, 
Brigham  V.  Bert  Hospital   (Mass.  1904),  134  Fed  Rep.  513. 

7  Thompson  v.  Adv.-Gen.,  12  Cl.  &  Fin.  (H.  L.  Cas.  1)  ;  Freke  v.  Car- 
berry,  L.  R.  16  Eq.  461. 

8  Knox's  Appeal,  131  Pa.  St.  220,  18  Atl.  Rep.  1021;  Fellman'a  Admr. 
V.  Landis,  131  Pa.  St.  573,  18  Atl.  Rep.  941.  "The  form  of  the  at- 
testing clause  of  a  will  is  not  material;  the  signature  of  the  witnesses 
being  all  that  is  necessary  under  Burns'  Ann.  St.  Ind.  1901,  Sec.  2746." 
Barricklow  V.  Stewart  (Ind.  1904),  72  N.  E.  Rep.  128. 

9  Walter's  Will,  64  Wis.  487,  54  Am.  Rep.  640.  In  re  Graham's  Will, 
109  N.  Y.  S.  122.     It  is  not  essential  that  the  witnesses  should  under- 

918 


CH.   XXIV.  J  TITLE   BY   DEVISE.  §    631 

order  to  indicate  the  intention  of  disposing  of  the  property. 
But  while  it  is  proper  and  customary  to  employ  the  verbs 
"devise,"  in  the  case  of  real  property,  "bequeath"  in  the 
case  of  personal  property,  and  "give"  in  the  case  of  either 
kind  of  property,  yet  these  words  have  no  technical  signifi- 
cation, and  any  other  words  of  transfer,  such  as  that  the 
property  shall  "go"  or  "be  divided  among,"  certain  persons 
will  be  equally  effective.^"  And  it  has  been  held  to  be  a  good 
devise  by  implication,  in  the  absence  of  any  words  of  direct 
transfer  or  gift,  where  the  will  makes  no  other  disposition  of 
the  property,  and  provides  by  a  codicil  for  a  limitation  over, 
on  failure  of  issue  of  his  children,  of  the  estate  "above  de- 
vised to  them."^^  Indeed,  an  instrument  in  the  form  of  a 
deed,  has  been  held  to  operate  as  a  will.^^  The  same  instru- 
ment may  be  held  to  be  partly  a  deed  and  in  other  respects  a 
will."  The  presumption,  however,  is  against  an  instrument, 
in  form  a  deed,  operating  as  a  will.  Where  it  appears  to 
have  been  the  intention  that  the  instrument  shall  operate  as 
a  deed,  it  cannot  take  effect  as  a  will,  although  it  may  be  ab- 
solutely void  as  a  deed.  And  it  is  incumbent  upon  the  party 
claiming  under  the  instrument  to  show  that  it  was  executed 
animo  testandO*     The  intention  may  be  ascertained  either, 

stand  the  contents  of  the  will.  Roche  v.  Nason,  93  N.  Y.  S.  565.  For 
will  of  a  German,  written  in  English,  see,  Gerbrich  v.  Freitag,  213  111. 
652,  73  N.  E.  Rep.  338. 

lOKeaney  v.  Keaney   (Md.),  18  Atl.  Rep.   1105. 

11  Ferguson  f.  Thomasson    (Ky.),  9  S.   W.   Rep.  714. 

12  Manly  V.  Lakin,  1  Hagg.  130;  Henderson  V.  Farbridge,  1  Russ.  479; 
Frederick's  Appeal,  52  Pa.  St.  338;  Wagner  f.  McDonald,  2  Harr.  & 
J.  346;  Ingram  V.  Porter,  4  McCord  198;  Wheeler  v.  Durant,  3  Rich. 
Eq.  452;  Hall  V.  Bragg,  28  Ga.  330;  Gillham  v.  Mustin,  42  Ala.  365; 
Wall  V.  Wall,  30  Miss.  91;  Allison  v.  Allison,  4  Hawks  141;  Stevenson 
V.  Huddlestone,  13  B.  Mon.  299;  Millican  v.  Millican,  24  Texas  426; 
Burlington  University  v.  Barrett,  22  Iowa  60;  In  re  Lantenschloger's 
Estate  (Mich.),  45  N.  W.  Rep.  147. 

13  Jacks  V.  Henderson,  1  Desau.  543;  Watkins  v.  Dean,  10  Yerg.  321; 
Taylor  v.  Kelly,  31  Ala.  59. 

"Combs  V.  Jolly,  3  N.  J.  Eq.  r.2r) ;  Collins  r.  Townley,  21  N.  J.  Eq. 
553;    Rohrer  v.   Stehman,    1    V.'.iltr,   -IIJ;    To;'d"s   Will,   2   Walts  &    S. 

Uli) 


§   631  TITLE  BY   DEVISE.  [PART   III. 

when  it  is  expressed  on  the  face  of  the  instrument,  from 
the  undertaking  to  dispose  of  property,  after  death,  in  such 
a  manner  that  the  instrument  cannot  take  effect  as  a  deed,  or 
by  parol  evidence,  where  there  is  no*  expression  of  intent,  and 
it  is  doubtful  on  the  face  of  the  instrument  in  what  manner 
the  donor  intended  the  instrument  to  operate.  The  admissi- 
bility of  parol  evidence  may  be  a  disputed  point;  and,  cer- 
tainly where  it  is  possible,  the  intention  must  be  gathered 
from  the  contents  of  the  whole  instrument."  It  is  not  neces- 
sary that  the  M'ill  or  any  part  of  it  should  be  actually  writ- 
ten. Printing,  engraving  and  lithographing  are  held  to  be 
equivalent  to  writing,  and  to  satisfy  the  requirement  of  the 
Statute  of  Frauds.^"  It  is,  likewise,  not  necessary  that  the 
will  be  written  in  ink.  A  valid  will  may  be  written  in  pen- 
cil.^^  But  where  the  will  is  written  partly  in  ink,  partly  in 
pencil,  and  partly  printed,  and  the  writing  in  ink  made  sense 
with  the  printed  matter,  and  appeared  to  be  a  complete  will 

145;  Frew  v.  Clark,  80  Pa.  St.  170;  Fort  v.  Fort,  3  Dev.  L.  19;  Luke  v. 
Dyches,  2  Strobh.  Eq.  3.53;  Brunson  v.  King,  2  Hill  (S.  C.)  Ch.  483; 
Allison  V.  Allison,  4  Hawks  141;  Phipps  v.  Hope,  16  Ohio  St.  58G.  See 
Beebe  v.  McKenzie  (Oreg.),  24  Pac.  Rep.  236;  White  v.  Hopkins,  80 
Ga.  154;  Anderson  v.  Brown,  72  Ga.  713;  Peake  V.  Jenkins,  80  Va. 
293:  Seals  f.  Pierce,  83  Ga.  787,  10  S.  E.  Hep.  589;  Diefendorf  v. 
Dicfendorf,  8  N.  Y.  S.  617;  Chavez  v.  Chavez  (Texas),  13  S.  W.  Rep. 
1018.  '•  The  primary  distinction  between  wills  and  declarations  of 
trust  is  that  a  will  takes  effect  in  the  future,  while  the  declaration  of 
trust  takes  effect  in  prcesenti,  during  the  life  of  the  settlor."  Robb  V. 
Washington  and  Jefferson  College,  93  N.  Y.  S.  92. 

15  See  McGee  V.  McCants,  1  McCord  517;  Tappan  f.  Diblois,  45  Me. 
122;  Wright  v.  Barrett,  13  Pick.  41;  Lythe -r.  Beveridge,  58  X.  Y. 
592;  Provost  r.  Provost,  27  N.  J.  Eq.  296;  Barker's  Appeal.  72  Pa.  St. 
420 ;  Bowly  r.  Lamont,  3  Harr.  &  J.  4 ;  Paiker  v.  Wasley,  9  Graft.  477 ; 
Gillis  f.. Harris,  6  Jones  Eq.  267;  Sorsby  v.  Vance,  36  Miss.  564;  Jack- 
son f.  Hoover,  26  Ind.  511;  Johnson  r.  M.  E.  Church,  4  Iowa  180.  See 
McLain  v.  Garrison    (Tex.   1905),  88  S.  W.  Rep.  484. 

iG  Crenshaw  v.  Foster,  9  Pick.  312;  Temple  v.  Mead,  4  Vt.  535.- 
"Kell  V.  Charmer,  23  Beav.  195;  Lucas  r,  James,  7  Hare  419;  Myers 
V.  Vanderbilt,  84  Pa.   St.   510;   Philbrick   r.   Spangler,    15  La.  An.  46 1 
Itnox's  Appeal,  131  Pa.  St.  220,  18  Atl.  Rep.  1020. 

920 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    632 

/ 

without  the  aid  of  the  pencil  writing,  it  was  held  that  the 
writing  in  pencil  constituted  no  part  of  the  will.^" 

§  632.  What  signing  is  necessary. —  The  English  Statute  of 
Wills  only  required  that  the  will  should  be  in  writing,  and 
did  not  make  it  necessary  for  the  testator  to  sign  or  to  sea' 
the  instrument.  And,  although  it  may  be  customary  in  some 
localities  to  seal  a  will,  it  has  never  been  considered  a  requisite 
to  the  validity  of  the  will,  and  is  not  necessary  except  in  Ver- 
mont and  New  Hampshire.^"  But  the  Statute  of  Frauds  of 
Chas.  II,  and  the  American  Statutes  of  Wills  generally,  pro- 
vide that  the  will  shall  be  signed  or  subscribed  by  the  testa- 
tor. If  the  statute  requires  it  to  be  signed,  the  signature  of 
the  testator  in  any  part  of  the  instrument  will  be  a  sufficient 
signing.  But  if  the  statute  requires  it  to  be  subscribed,  the 
testator  must  sign  his  name  at  the  bottom  or  end  of  the  will.-** 
If  the  testator  is  unable  to  write  he  may  make  his  mark,  and 
this  mark  alone  will  be  a  proper  signing  of  the  will,  although 
it  is  customary  for  some  one,  usually  an  attesting  witness,  to 
write  his  name  around  or  about  the  mark.-^  In  Missouri,  if 
the  name  is  written  by  some  one,  it  must  be  an  attesting  wit- 
ness, and  the  attestation  clause  must  contain  a  statement  that 
the  testator's  name  was  signed  at  his  request.--  In  the  same 
manner  some  one  may  guide  his  hand  in  writing  his  name 

1"  /n  re  Adams,  L.  R.  2  P.  &  D.  367.  See,  also,  Bryan  v.  Bigelow 
(Conn.),  60  Atl.  Rep.  266. 

i»3  Washburn  on  Real  Prop.  507.  See  Piatt  f.  McCullough,  1  Mc- 
Lean 69;  Williams  V.  Burnett,  Wright  53;  Padficld  v.  Padfield,  72  111. 
322.  For  abolition  of  necessity  of  private  seals  in  Missouri,  see  Sess. 
Laws,  1891,  p.  248. 

20  Warwick  v.  Warwick  (Va.),  10  S.  E.  Rep.  843;  In  re  Dagler's 
Will,  47  Hun  127;  Frazier's  Estate,  8  Pa.  Co.  Ct.  306.  See,  In  re 
Seaman's  Est.  (Cal.  1905),  80  Pac.  Rep.  700;  Irwin  v.  Jackes  (Ohio), 
73  N.  E.  Rep.  683. 

21  Taylor  v.  Dening,  3  Nev.  &  P.  228;  s.  c.  nom.  Baker  v.  Dening,  8 
Ad.  Ell.  94;  Stevens  v.  Van  Cleve,  4  Wash.  C.  Ct.  262;  Van  Hanswyck 
f.  Wiese,  44  Barb.  494;  Jackson  v.  Jackson,  39  N.  Y.  153;  Maine  v. 
Ryder,  84  Pa.  St.  217;  St.  Louis  Hospital  V.  Williams,  19  Mo.  609. 

22McGee  v.  Porter,  14  Mo,  611;  Northcutt  v.  Northcutt.  20  Mo.  266. 

921 


§    633  TITLE   BY    DEVISE.  [PART   III. 

or  making  his  mark,  when  he  is  too  weak  from  disease  to 
write  without  assistance,  and  he  requests  such  assistance.^* 
The  courts  go  still  further  and  hold  that  where  the  testator, 
through  his  feebleness,  is  unable  to  handle  the  pen,  he  may 
request  another  to  sign  his  name  for  him,  and  such  signature 
will  be  a  good  signing  of  the  will,  without  any  mark  by  the 
testator." 

§  633.  Proper  attestation,  what  is. —  The  English  Statute  of 
Frauds  required  the  execution  of  the  will  to  be  attested  and 
subscribed  by  three  or  four  competent  and  credible  witnesses. 
This  general  provision  is  adopted  in  all  the  States,  but  the 
number  of  witnesses  required  varies.  In  Connecticut,  Dis- 
trict of  Columbia,  Florida,  Georgia,  Maine,  Maryland,  Massa- 
chusetts, Mississippi,  New  Hampshire,  New  Mexico,  South 
Carolina  and  Vermont,  three  witnesses  are  required ;  while  two 
are  sufficient  in  Alabama,  Arkansas,  California,  Colorado, 
Dakota,  Delaware,  Idaho,  Illinois,  Indiana,  Iowa,  Kansas, 
Kentucky,  Michigan,  Minnesota,  Missouri,  Montana,  Ne- 
braska, Nevada,  New  Jersey,  New  York,  North  Carolina, 
Ohio,  Oregon,  Rhode  Island,  Tennessee,  Texas,  Utah,  Vir- 
ginia, West  Virginia,  and  Wisconsin.^'*  Witnesses  to  a  will 
are  required  to  do  more  than  witnesses  to  a  deed.     The  latter 

23  Wilson  V.  Beddard,   12  Sim.  28;   Sprague  v.  Luther,  8  R.  I.  252 
Nickerson  V.  Buck,  12  Cush,  332;  Jackson  v.  Van  Duysen,  5  Johns.  144 
Chaffee  v.  Baptist  M.  C,  10  Paige  Ch.  85;  Cozzen's  Will,  61  Pa.  St.  196 
Ray  V.  Hill,  3   Strobh.   297;    Upchurch  v.   Upchurch,   16  B.  Mon.    102. 
"  The  validity  of  a  will  duly  signed  at  its  close  is  not  affected  by  the 
fact  that  a  codicil  thereto  is  not  signed."     Ward  v.  Putnam  (Ky.  1905), 
85  S.  W.  Rep.  179,  27  Ky.  Law  Rep.  367. 

24  Assay  v.  Hoover,  5  Pa.  St.  21;  Main  v.  Ryder,  34  Pa.  St.  217; 
Robins  v.  Coryell,  27  Barb.  550;  Rosser  v.  Franklin,  6  Gratt.  2;  Arm- 
strong V.  Armstrong,  29  Ala,  538;  Simpson  v.  Simpson,  27  Mo.  288; 
Will  of  Jenkins,  43  Wis.  610;  Poole  v.  Buffum,  3  Oreg.  438. 

25  1  Jarm.  Wills  ( 5  Am.  ed. )  198,  Am.  note.  "  A  will  with  only 
two  witnesses  is  absolutely  void  as  a  muniment  of  title  to  realty  in 
this  State,  and  a  judgment  of  probate  cannot  give  it  any  validity." 
Janes  v.  Dougherty  (Ga.  1905),  50  S.  E.  Rep.  954.  See  also  McLain  v. 
Garrison,  88  S.  W.  Rep.  414. 

922 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    633 

are  only  called  upon  to  witness  the  execution  of  the  deed. 
But  witnesses  to  a  will  are  made  judges  of  the  competency 
of  the  testator,  and  in  any  subsequent  litigation  over  the  will, 
involving  the  question  of  the  capacity  of  the  testator,  they 
are  in  effect  expert  witnesses,  and  can  give  their  opinion  of 
the  testator's  mental  capacity.^*  It  is,  therefore,  generally 
held  that  the  testator  must  publish  his  will,  i.  e.,  declare  to 
the  witnesses  that  the  instrument  before  them  is  his  last  will 
and  testament,  and  without  some  such  declaration  the  will 
will  be  void."  To  make  a  valid  publication,  the  will  must  at 
the  time  be  complete  in  all  its  parts.^*  Although  the  testator 
need  not  sign  in  the  presence  of  the  witnesses,^®  they  must 

20  1  Greenl.  on  Ev.,  Sec.  440;  Field's  Appeal,  36  Cofin.  277;  White- 
nack  V.  Stryker,  2  N.  J.  Eq.  9;  Heyward  v.  Hazard,  1  Bay  335;  Roche 
r.  Nason,  93  N.  Y.  S.  305;  Gessell  r.  Bougher  (Md.  1905),  60  Atl.  Rep. 
481.  "  In  a  will  contest  on  the  ground  of  want  of  testamentary  ca- 
pacity, opinions  as  to  testator's  capacity  at  a  time  prior  to  the  execu- 
tion of  the  will  are  competent."  In  re  Glass'  Estate  (Iowa  1905),  103 
N.  W.  Rep.  1013;  Glass  f.  Glass,  Id. 

27  See   Cilley   v.   Cilley,   34   Me.    162;    Ela   v.  Edwards,   16  Gray  91; 
Brinckerhoff  v.   Remsen,  26   Wend.  325;    Rutherford  v.   Rutherford,    1 
Denio  33;  Gilbert  v.  Knox,  52  N.  Y.  125;  Transue  v.  Brown,  31  Pa.  St 
92;  Compton  r.  Mitton,  12  N.  J.  L.  70;  Sutton  v.  Sutton,  5  Harr.  459 
Beane  v.  Yerby,   12  Gratt.  239;  Verdier  v.  Verdier,  8  Rich.   135;   Up 
church    V.   Upchurch,    16   B.   Mon.    102;    Brown   r.  McAllister,   34    Ind 
375;  Dickie  V.  Carter,  42  111.  376;   Buntin  v.  Johnson,  28  La.  An.  796 
Porteus  f.  Holm,  4  Dem.  14;  In  re  Dqje's  Will,  56  Hun  169,  9  N.  Y.  S 
396;   Luper  v.  Wertz    (Or.),  23  Pac.  Rep.  850.     In  Georgia  and  Penn 
sylvania    there   .seems   to   be   no   necessity   of   a    publication.     Webb    v. 
Fleming,  30  Ga.  808 ;  Loy  v.  Kennedy,  1  Watts  &  S.  396.     But  see  Tran- 
sue t*.  Brown,  supra. 

28  Barnes  v.  Syester,  14  Md.  507;  Waller  v.  Waller,  1  Gratt.  454; 
Jones  V.  Jones,  3  Mete.  (Ky.)  266;  Chisholm's  Heirs  v.  Ben,  7  B. 
Mon.  408. 

29  Provided  he  acknowledges  his  signature  and  requests  them  to  at- 
test it.  Smith  V.  Codron,  2  Ves.  455;  Tilden  v.  Tilden,  13  Gray  103; 
Mickerson  v.  Buck,  12  Gush.  332;  Adams  v.  Field,  21  Vt.  256;  Tarrant 
V.  Ware,  25  N.  Y.  425;  Baskin  v.  Baskin,  36  N.  Y.  416;  Will  of  Als- 
paugh,  23  N.  J.  Eq.  507;  Rosser  v.  Franklin,  6  Gratt.  1;  Tucker  v. 
Oxner,  12  Rich.  L.  141;  Thompson  v.  Davitte,  59  Ga.  472;  Upchurch 
V.  Upchurch,  16  B.  Mon.  102;  Allison  v.  Allison,  46  111.  61;   Welch  v. 

923 


§    633  TITLE   BY   DEVISE.  [PART   III. 

dgn  in  his  presence.^"  What  is  a  sufficient  "presence"  is 
governed  largely  by  the  circumstances.  In  determining  this 
question,  there  are  only  two  elements  to  be  considered: 
First,  were  the  witnesses  at  the  time  of  signing  so  situated 
that  the  testator  could  see  them ;  and  secondly,  was  he  in  a 
conscious  state.  It  is  not  necessary  that  the  testator  should 
actually  see  the  signing,  if  he  was  in  a  position  to  see  it  if 
he  wanted  to.^^  Not  only  is  this  true,  but  if  the  testator  is 
blind,  the  will  will  be  properly  attested  if  the  witnesses  when 
signing  were  in  such  a  position,  that  the  testator  could  have 
seen  them  if  he  had  had  his  sight.^^  And  it  is  not  even  nec- 
essary that  the  testator  should  be  in  the  same  room  with  the 
witnesses.  Attestation  in  a  different  room,  although  pre- 
sumptively bad,  will  be  good  if  the  testator  could  see  the  per- 
formance of  the  act  of  attestation.^^     And  in  some  of  the 

Adams,  63  N.  H.  344;  In  re  Van  Geison's  Will,  47  Hun  5;  In  re  Sim- 
mons' Will,  7  N.  Y.  S.  352.  The  fact  that  testator  does  not  see  the 
witnesses  will  not  avoid  the  will.  Healey  i'.  Bartlett  (N.  H.  1904), 
69  Atl.  Rep.  617. 

30  Roberts  r.  Welch,  46  Vt.  164;  Tappan  r.  Davidson,  27  N.  J.  Eq. 
459;  Parramore  v.  Taylor,  11  Gratt.  220;  Watson  i".  Hipes,  32  Miss. 
451;  Cravens  v.  Falconer,  28  Mo.  19.  Contra,  Lyon  ?'.  Smith,  11  Barb. 
124;  Carroll  V.  Norton,  3  Bradf.  291;  Abraham  v.  Wilkins,  17  Ark.  292. 
"  A  paper  not  attested  by  two  witnesses  in  the  presence  of  the  testa- 
trix is  not  a  will."     Stanley  v.  Moss,  114  111.  App.  612. 

31  Boldry  v.  Parris,  2  Cush.  433 ;  Edelen  v.  Hardy,  7  Harr.  &  J.  1 
Nock  V.  Nock,  10  Gratt.  106;  Bynum  v.  Bynum,  11  Ired.  L.  632 
Reynolds  v.  Reynolds,  1  Speers  253;  Wright  v.  Lewis,  5  Rich.  212 
Lamb  v.  Girtman,  33  Ga.  289;  Rucker  V.  Lambdin,  12  Smed.  &  M.  230 
Watson  V.  Pipes,  32  Miss.  451;  Howard's  Will,  5  B.  Mon.  199;  Ambree 
V.  Weishaas,  74  HI.  109;  Walker  V.  Walker  (Miss.),  7  So.  Rep.  491. 
See  Healey  v.  Bartlett  (N.  H.  1904),  59  Atl.  Rep.  617. 

32  In  re  Piercy,  1  Robt.  278 ;  Lewis  v.  Lewis,  6  Serg.  &  R.  489 ;  Weir 
V.  Fitzgerald,  2  Bradf.  42;  Reynolds  V.  Reynolds,  1  Speers  253. 

33  Newton  v.  Clarke,  3  Curt.  320;  Lamb  f.  Girtman,  33  Ga.  289.  See 
also  Sprague  v.  Luther,  8  R.  I.  252;  Neil  v.  Neil,  1  Leigh  6;  Russell 
V.  Falls,  3  Harr.  and  McH.  457;  Graham  v.  Graham,  10  Ired.  L.  219; 
Howard's  Will,  5  B.  Mon.  199;  Ambree  v.  Weishaar,  74  111.  109;  Galla- 
gher V.  Kilkeary,  29  111.  App.  415.  In  one  case  attestation  in  a  differ- 
ent house  was  held  to  be  sufficient,  the  testator  being  in  a  position  to 

924 


CH,    XXIV.]  TITLE   BY   DEVISE.  §    633 

States  it  is  also  required  that  the  witnesses  shall  sign  in  the 
presence  of  each  other.^*  But  the  general  rule  is  that  they 
may  sign  at  different  times,  and  not  in  the  presence  of  each 
other,  provided  they  all  sign  in  the  presence  of  the  testator. •''* 
It  is  usual  for  the  will  to  contain  an  attestation  clause,  con- 
taining a  declaration  of  all  the  acts  done  in  compliance  with 
the  statute,  and  which  are  necessary  to  the  valid  execution  of 
a  will.  No  particular  form,  expression  or  words  are  necessary 
to  constitute  an  attestation,  and  even  if  the  attestation  clause 
is  omitted  altogether  the  will  will  be  good,  for  the  meaning 
of  the  witnesses'  signatures  may  be  established  by  parol  evi- 
dence.^" But  it  is  always  advisable  to  insert  a  full  and  com- 
plete attestation  clause,  for  the  declarations  in  the  clause  as 
to  the  proper  execution  of  the  will  raise  a  presumption  that 
the  will  was  properly  executed,  and  throws  the  burden  of 
proof  to  the  contrary  upon  the  party  contesting  the  will.^^ 
Generally  the  witnesses  must  sign  below  the  attestation  clause 
at  the  end  of  the  will,  and  in  New  York  and  Kentucky  this 
is  required  by  statute.'*  But  the  common  law  does  not  re- 
quire the  witnesses  to  sign  in  any  particular  place.'**     If  the 

see  the  act.     Casson  v.  Dode,  1  Bro.  C.  C.  99.     See  Cook  v.  Winchester 
(Mich.),  46  N.  W.  Rep.  106. 

3*Blanchard  V.  Blanchard,  32  Vt.  62. 

ssGaylor's  Appeal,  43  Conn.  82;  Flinn  v.  Owen,  58  111.  Ill;  HoflF- 
nian  v.  Hoffman,  26  Ala.  535;  Welch  v.  Adams,  63  N.  H.  344;  John- 
son V.  Johnson,  106  Ind.  475,  55  Am.  Rep.  762;  Grubbs  v.  Marshall 
(Ky.),  13  S.  W.  Rep.  447;  Pow  tucket  v.  Ballou,  15  R.  I.  58.  See 
Roche  V.  Nason,  93  N.  Y.  S.  565;  Standley  v.  Moss,  114  111.  App.  612. 

8«  Hands  v,  James,  Comyn  531 ;  Brice  v.  Smith,  Willes  1 ;  Hitch  v. 
Wells,  10  Beav.  84;  Fry's  Will,  2  R.  I.  88;  Cla  v.  Edwards,  16  Gray 
91;  Chaffee  v.  Baptist  M.  C,  10  Paige  85;  Leaycraft  v.  Simmons,  3 
Bradf.  35.  See  contra,  Griffith  v.  Griffith,  5  B.  Mon.  511.  And  see,  gen- 
erally, Osborn  v.  Cook,  11  Cush.  352;  Jackson  v.  Jackson,  39  N.  Y.  153; 
Fatheree  V.  Lawrence,  33  Miss.  685.  See  Bannicklow  v.  Stewart  (Ind. 
1904),  72  N.  E.  Rep.  128. 

S7  Tappen  v.  Davidson,  27  N.  J.  Eq.  459.  See  Roche  v.  Nason,  93  N. 
Y.  S.  565. 

^  «8  Coffin  V.  Coffin,  23  N.  Y.  9 ;  Peck  v.  Cary,  27  N.  Y.  9. 
'  89 /«   re  Chamney,   1    Robt.   757;    Roberts  v.   Phillips,  4   Ell.   &   Bl. 

925 


§    634  TITLE  BY    DEVISE.  [PART   III. 

will  has  not  been  properly  attested  it  is,  of  course,  inoper^ 
ative.  But  where  a  codicil  is  subsequently  executed,  properly 
attested,  confirming  the  prior  defective  will  expressly  or  by 
implication,  it  will  cure  the  defect,  and  make  the  will  oper- 
ative from  the  date  of  the  codicil.*" 

§  634.  Who  are  competent  witnesses. —  Some  of  the  State 
statutes  require  the  witnesses  to  be  credible,  and  the  others 
that  they  shall  be  competent.  But  the  two  words  in  this  con- 
nection are  used  synonymously,  and  the  same  general  rules 
govern  in  all  the  States.*^  The  meaning  of  this  requirement 
is  that  the  witnesses  must  be  circumstanced,  that  their  testi- 
mony in  a  court  of  justice  will  be  competent  to  establish  the 
validity  of  the  will.  The  three  principal  causes  of  incompe- 
tency are  mental  imbecility,  arising  either  from  insanity  or 
tender  age,  the  commission  of  crime,  and  the  possession  of  an 
interest  in  the  operation  of  the  will.  The  first  two  causes  are 
governed  by  the  general  rules  of  evidence,  and  are  explained 
in  all  treatises  upon  the  law  of  evidence,  and  will  need  no 
special  elucidation  here.  The  most  common  cause  of  in- 
competency in  respect  to  wills  is  that  of  interest.  The  com- 
mon-law or  old  English  statutory  rule  is  that  if  a  witness 
to  the  will  is  interested  in  it  as  a  legatee  or  devisee,  the  will 
is  void.*^  But  now  in  most  of  the  States  it  is  provided  by 
statute  that  in  such  cases  the  will  will  be  good,  but  the  devise 
or  legacy  to  the  witness  will  be  void.  In  some  of  the  States 
the  devise  is  declared  absolutely  void,*^  but  generally  the  de- 

450;  Murray  v.  Murphy,  39  Miss.  214.  Franks  v.  Chapman,  64  Texas 
159. 

*o  Anderson  V.  Anderson,  L.  R.  13  Eq.  381 ;  Mooers  V.  White,  6  Johns. 
Ch.  360;  Van  Cortlandt  v.  Kip,  1  Hill  590;  Harvey  V.  Chouteau,  14  Mo. 
587.  See  post,  Sec.  649.  And  see,  Ward  v.  Putnam  (Ky.  1905),  85  S. 
W.  Eep.  179. 

*i/n  re  Noble's  Estate,  22  111.  App.  535;  Standley  v.  Moss,  114  111. 
App.  612. 

■tzGiddings  V.  Turgeon,  58  Vt.  706;  Elliott  V.  Brent,  6  Mackey  98.     • 

<3  Such  is  the  law  in  Rhode  Island,  New  York,  New  Jersey,  North 
926 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    631 

vise  is  void  only  when  there  is  not  a  sufficient  number  of  wit- 
nesses without  the  disqualified  witness.**  In  others  of  the 
States  there  is  this  farther  qualification,  that  where  the 
devisee  receives  no  more  by  the  will  than  he  would  have 
been  entitled  to  as  heir  if  the  testator  had  died  intestate,  he 
is  a  competent  witness.  This  rule  is  either  laid  down  by  stat- 
ute, or  is  a  consequence  of  the  rule  that  where  a  devisee  is 
heir  at  law  of  the  testator,  and  is  not  benefited  by  the  will, 
he  takes  as  heir  and  not  as  devisee.*^  It  is  held  in  some  of 
the  States  that  a  witness,  incompetent  on  account  of  interest, 
may  become  competent  by  making  an  assignment  or  release  of 
his  interest.*®  Not  only  is  the  witness  incompetent  where  he 
is  himself  a  devisee,  but  he  or  she  is  likewise  incompetent 
where  his  wife  or  her  husband,  respectively,  is  a  devisee.*'"' 
But,  although  a  different  rule  is  "observed  in  some  of  the 
States,**  it  is  generally  held  that  an  executor  or  trustee  is  not 

Carolina,  South  Carolina,  Georgia,  Indiana,  Ohio  and  Oregon.  1  Jar. 
on  Wills   (5  Am.  ed.),  189  Am.  note. 

**  This  is  the  rule  in  Massachusetts,  Michigan,  Missouri,  Minnesota, 
New  Hampshire,  Nebraska,  Virginia,  Vermont,  Wisconsin,  Kentucky, 
Kansas,  Iowa,  Illinois,  Dakota,  Connecticut,  Colorado,  California,  West 
Virginia  and  Arkansas.  1  Jar.  on  Wills  (5  Am.  ed.)  189,  Am.  note. 
In  New  York  the  same  rule  has  been  adopted  by  the  courts.  Crom- 
well V.  Woolly,  1  Abb.  Pr.  442.  See  O'Brien  v.  Banfield,  213  111.  428, 
72  N.  E.  Rep.  1090.  A  witness  to  a  will  is  not  disqualified  merely  by 
reason  of  the  fact  that  such  will  appoints  him  as  executor  thereof. 
Standley  V.  Moss,  114  111.  App.  612. 

45  Jackson  v.  Denniston,  4  Johns.  311;  Starr  v.  Starr,  2  Root  363; 
Fortune  v.  Buck,  23  Conn.  1 ;  Ackless  v.  Seekright,  Breese  76 ;  Croft  v. 
Croft,  4  Gratt.  103;  Cannon  v.  Setzler,  6  Rich.  471;  Rucker  v.  Lamb- 
din,  12  Smed.  &  M.  230. 

<«Kern  V.  Soxman,  16  Serg.  &  R.  315;  Hans  v.  Palmer,  21  Pa.  St. 
296;  Deakin  v.  Hollis,  7  Gill  &  J.  311;  Shaffer  v.  Corbett,  3  Harr.  & 
McH.  513;  Mixon  v.  Armstrong,  38  Texas  296.  Contra,  Allison  v.  Alli- 
son, 4  Hawks.  141. 

♦TWinslow  17.  Kimball,  25  Me.  493;  Sullivan  v.  Sullivan,  106  Mass. 
474;  Jackson  v.  Woods,  1  Johns.  163;  Huie  v.  Gunter,  3  Jones  L.  441; 
Brayfield  v.  Brayfleld,  3  Harr.  &  J.  208. 

48  Gilbert  v.  Gilbert,  23  Ala.  529 ;  Davis  v.  Rogers,  .1  Houst.  44.  But 
see  Hawley  v.  Brown,  1  Root  494;  Vansant  v.  Boileau,  1  Binn.  444; 
Gunter  v.  Gunter,  3  Jones  L.  441;  Filson  v.  Filson,  3  Strobh.  288. 

927 


§    635  TITLE   BY   DEVISE.  [PART    III. 

thereby  incapacitated  from  acting  as  a  witness  to  the  will 
which  appoints  him.*®  If  the  witness  is  competent  at  the 
time  of  the  attestation,  it  will  not  invalidate  the  attestation  if 
he  subsequently  becomes  incompetent  from  any  cause.  He  is 
only  required  to  be  competent  when  he  attests  the  will.'"  A 
codicil,  being  nothing  more  than  a  supplementary  will,  in 
order  to  be  valid,  requires  the  same  formality  of  attestation.'^ 

§  635.  Who  may  prepare  the  will  —  Holographs. —  As  a 
general  proposition,  there  is  no  restriction  as  to  the  person 
who  may  prepare  and  write  the  will,  and  the  same  may  be 
written  either  by  the  testator  or  some  other  person  at  his 
request.  When  the  will  is  in  the  testator's  own  hand- 
writing it  is  called  a  holograph,  and  in  Arkansas,  Ken- 
tucky, Tennessee,  Texas^  Virginia,  North  Carolina,  Missis- 
sippi and  Louisiana  it  is  provided  by  statute  that  no 
witnesses  are  required  to  attest  such  wills.'^  A  will  drawn 
up  by  the  devisee  will,  nevertheless,  be  good.  But  a  suspicion 
is  cast  upon  the  validity  of  the  will,  and  it  requires  stronger 
evidence  in  such  cases  to  rebut  the  charge  of  undue  influence. 
If  the  testator  is  of  feeble  mind  at  the  time,  and  is  notoriously 
under  the  influence  of  this  devisee,  the  will  would  in  ordinary 

49Milay  v.  Wiley,  46  Me.  230;  Wyman  v.  Symmes,  10  Allen  1.53; 
Richardson  V.  Richardson,  35  Vt.  238;  Stewart  v.  Harriman,  56  N.  H. 
25;  Frew  v.  Clark,  80  Pa.  St.  170;  Overton  v.  Overton,  4  Dev.  &  B.  197; 
Noble  V.  Burnett,  10  Rich.  505;  Kelly  v.  Miller,  39  Miss.  17;  Orndoff 
f.  Hummer,  12  B.  Mon.  619.     See  Standley  v.  Moss,  114  111.  App.  612. 

50  Patten  v.  Tallman,  27  Me.  17;  Amory  V.  Fellowes,  5  Mass.  219; 
McLean  V.  Barnard,  1  Root  462;  Higgins  v.  Carlton,  28  Md.  115; 
Deakins  v.  HoUis,  7  Gill  &  J.  311;  Gill's  Will,  2  Dana  447;  Rucker  V. 
Lambdin,  12  Smed.  &  M.  230;  Mixon  v.  Armstrong,  38  Texas  296. 

Bi  Garcia  y  Perea  v.  Barela    (N.  M.),  23  Pac.  Rep.  766. 

52  1  Jar.  on  Wills  ( 5  Am.  ed )  200,  Am.  note.  See  Harrison  v.  Bur- 
gess, 1  Hawks  384;  Brown  V.  Beaver,  3  Jones  L.  516;  Succession  of 
Ehrenberg,  21  La.  An.  280;  Hannah  v.  Peak,  2  B.  Mon.  133;  Hocker  V. 
Hoeker,  4  Gratt.  277;  Crutcher  v.  Crutcher,  11  Humph.  377;  Anderson 
V.  Pryor,  10  Smed.  &  M.  620;  Brown  V.  Eaton,  91  N.  C.  26;  Skerrett's 
Estate,  67  Cal.  58.  See  McLain  v.  Garrison  (Texas  1905),  88  S.  W. 
Ren.  484. 

928 


CH.    XXIV.]  TITLE  BY   DEVISE.  §    636 

eases  be  overthrown,  unless  the  strongest  proof  of  fair  deal- 
ing was  established  in  support  of  the  will." 

§  636.  What  property  may  be  devised. —  It  may  be  stated  as 
a  general  proposition  that  every  interest  in  lands,  except  a 
mere  possibility,  may  be  the  subject  of  devise.  This  would 
include  incorporeal  as  well  as  corporeal  hereditaments,  estates 
in  expectancy,  contingent  remainders,  where  the  contingency 
does  not  rest  upon  the  uncertainty  of  the  remainder-man,  and 
possibilities  coupled  with  an  interest,  such  as  a  right  of  entry 
to  defeat  an  estate  upon  condition,  where  it  is  attached  to 
some  reversionary  interest."**  In  Massachusetts  a  right  of 
entry  in  an  estate  upon  condition  may  be  devised,  wliether 
the  grantor  has  a  reversionary  interest  or  not.  And  the  right 
will  sometimes  pass  to  the  devisee  under  a  residuary  devise 
without  special  mention.''  It  was  once  the  English  law,  and 
at  an  early  day  the  law  in  this  country,  that  the  will  could 
only  convey  the  real  property  owned  by  the  testator  at  the 
time  when  the  will  was  executed.  But  now  in  England  and 
in  most  of  the  States  this  rule  has  been  changed  by  statute,  so 

ssBarr  v.  Buttin,  1  Curt.  637;  Ingraham  v.  Wyatt,  1  Hagg.  388; 
Taylor  v.  Gardiner,  35  N.  Y.  559 ;  Day  v.  Day,  3  N.  J.  Eq.  549 ;  Harvey 
V.  Sullens,  46  Mo.  147;  Sterling  v.  Sterling,  64  Md.  138.  "An  olo- 
graphic will  was  merely  a  memorandum  of  testator's  property,  dated 
at  the  top,  and  followed  by  a  clause  disposing  of  the  same.  Held, 
that  it  was  immaterial  whether  the  date  at  the  top  was  the  date  of 
the  will,  or  the  date  on  which  testator  was  the  owner  of  the  specified 
property."     In  re  Clisby's  Estate   (Cal.  1904),  78  Pac.  Rep.  964. 

6*2  Washburn  on  Real  Prop.  562;  3  Washburn  on  Real  Prop.  522, 
523;  4  Kent's  Com.  511,  513;  Hayden  v.  Stoughton,  5  Pick.  528;  Aus- 
tin V.  Cambridgeport  Parish,  21  Pick,  215;  Steele  v.  Cook,  1  Mete.  281; 
Den  V.  Manners,  20  N.  J.  L.  142;  Southard  v.  Central  R.  R.  Co.,  26  N. 
J.  L.  13;  Kean  v.  Roe,  2  Harr.  112.  For  devise  of  rents  not  in  exist- 
ence at  date  of  will,  as  a  specific  legacy,  see  Manlove  v.  Gant,  2  Tenn. 
Ch.  App.  410. 

SB  Hayden  v.  Stoughton,  6  Pick.  528 ;  Austin  v.  Cambridgeport  Parish, 
21  Pick.  216. 

59  929 


§    637  TITLE   BY    DEVISE.  [PART    III. 

that  a  residuary  or  general  devise  will  convey  whatever  prop- 
erty the  testator  owned  at  the  time  of  his  death."® 

§  637.  A  competent  testator,  who  is. —  All  persons  are  com- 
petent to  dispose  of  their  property  by  will  who  do  not  come 
under  one  of  the  three  classes  of  persons  under  disability. 
The  three  classes  are  infants,  femes  covert,  and  persons  of  in- 
sane mind.  These  persons  are  expressly  excluded  by  the  old 
English  Statute  of  Wills,  and  they  are  either  expressly  ex- 
cluded by  the  American  Statutes,  or  by  implication,  unless 
the  statutes  expressly  direct  otherwise.  The  general  rule  in 
regard  to  infants  is  that  they  cannot  make  a  devise  of  real 
property  until  they  are  twenty-one  years  of  age.  But,  in 
some  of  the  States,  females  of  the  age  of  eighteen  are  by  stat- 
ute declared  to  be  competent  to  make  a  will."^  Although, 
under  the  English  Statute  of  Wills  and  the  earlier  American 
statutes,  a  married  woman  was  not  allowed  to  make  a  will  of 
her  property,  yet  her  property  could  be  settled  to  her  use  and 
to  the  use  of  her  appointee  by  will.  Her  appointee  would 
take  the  legal  estate  by  the  operation  of  the  Statute  of  Uses 
upon  her  appointment.  In  England,  and  in  all  the  States, 
she  could  make  a  will  of  equitable  estates  if  the  power  was 
expressly  reserved  to  her,  and  in  some  of  the  States,  as  well  as 
in  England,  it  was  not  necessary  to  reserve  the  power.  She 
possessed  it  as  a  natural  incident  of  her  separate  estate."^  In 
the  United  States  the  later  tendency  of  legislation  is  to  free 
married  women  from  all  disability  in  respect  to  the  manage- 
ment of  their  property.     In  some  States  there  is  the  broad 

36  3  Washburn  on  Real  Prop.  509.  This  is  the  statute  law  in  Ala- 
bama, California,  Colorado,  Connecticut,  Delaware,  Georgia,  Illinois, 
Indiana,  Iowa,  Kansas,  Kentucky,  Maine,  Maryland,  Massachusetts, 
Minnesota,  Mississippi,  Missouri,  Nebraska,  New  Jersey,  New  Hamp- 
shire, New  York,  North  Carolina,  Ohio,  Pennsylvania,  Rhode  Island, 
South  Carolina,  Tennessee,  Texas,  Vermont,  Virginia,  West  Virginia  and 
Wisconsin.  1  Jar.  on  Wills  (5  Am.  ed.)  602,  603,  Am.  note.  Hopper's 
Estate,  66  Cal.  80. 

67  Washburn  on  Real  Prop.  510;  Wells,  v.  Seely,  47  Hun.  109. 

B8  See  ante,  Sec.  348,  note. 
930 


CH.    XXIV.]  TITLE  BY   DEVISE.  §    637 

rule  of  law  established,  that  a  married  woman  shall  have  in 
respect  to  her  property  all  the  powers  of  disposition  and  man- 
agement of  a  single  woman.  Of  course,  in  those  States,  she 
can  make  a  will  of  her  legal  as  well  as  her  equitable  estates, 
and  bar  whatever  contingent  interests  her  husband  may  have 
in  her  property,  including  his  tenancy  by  the  curtesy."**  But 
in  some  of  those  States  where  she  has  not  an  absolute  estate 
in  her  real  property  she  cannot  make  a  will  which  will  bar 
her  husband's  curtesy,  but  in  every  other  way  her  will  will 
convey  a  good  title  to  the  devisee.*"  In  respect  to  what  degree 
of  sanity  is  necessary  to  make  a  competent  testator,  it  is  diffi- 
cult to  make  any  concise  and  comprehensive  statement  which 
will  apply  to  every  case  which  may  arise;  and  a  detailed 
presentation  of  the  law  would  require  more  space  than  could 
be  given  on  the  subject  in  an  elementary  treatise  on  real 
property.  The  ipquiry  in  all  such  cases^  is:  Had  the  testa- 
tor at  the  time  of  the  execution  of  the  will  sufficient  mental 
capacity  to  make  a  will,  not  whether  he  was  sane  or  insane."^ 
"He  must,  undoubtedly,  retain  sufficient  active,  memory  to 
collect  in  his  mind,  without  prompting,  particulars  or  ele- 
ments of  the  business  to  be  transacted,  and  to  hold  them  in 
his  mind  a  sufficent  length  of  time  to  perceive  at  least  their 
more  obvious  relations  to  each  other,  and  to  be  able  to  form 
some  rational  judgment  in  relation  to  these.  "°^     If  a  man 

59  Washburn  on  Real  Prop.  510.  See  Van  Wert  v.  Benedict,  I 
Bradf.  114;  Dickinson  v.  Dickinson,  61  Pa.  St.  401;  Johnson  V.  Sharp, 
4  Coldw.  45;  Mosser  v.  Mosser's  Exrs.,  32  Ala.  551;  In  re  Fuller,,  79 
III.  99.  But  see  Cooke's  Appeal,  132  Pa.  St.  533,  19  Atl.  Rep.  274.  See 
Patrick  v.  Morrow  (Colo.  1905),  81  Pac.  Rep.  242;  Dunn  v.  Stoners 
(W.  Va.),  51  S.  E.  Rep.  366;  McWhorter  v.  O'Neal  (Ga.  1905),  49  S.  E. 
Rep.  592. 

«o  Silsby  V.  Bullock,  10  Allen  94 ;  Burroughs  v.  Nutting,  105  Mass. 
228;  Vreeland  v.  Ryno,  26  N.  J.  Eq.  160;  Reals  v.  Storm,  26  N.  J.  Eq. 
372. 

«i'Forman'8  Will,  54  Barb.  274;  Hopper's  Will,  33  N.  Y.  619;  Parish 
Will  Case,  25  N.  Y.  9 ;  Brown  v.  Mitchell,  75  Texas  9,  12  S.  W.  Rep.  606 ; 
In  re  Voorhis,  9  N.  Y.  S.  201. 

«2Ch.  J,  Redfield  in  Converse  v.  Converse,  21  Vt.   170;  Jackson  v. 

931 


§    637  TITLE   BY   DEVISE.  [PART   III. 

has  sufficient  mental  capacity  to  manage  his  business,  he  is 
presumably  competent  to  make  a  will.  But  this  is  not  a  sure 
and  invariably  reliable  test.  A  man  may  be  perfectly  sane 
in  every  respect  except  one  point;  yet  if  his  mental  capacity 
to  make  that  particular  will  is  affected  by  the  monomania, 
the  will  will  be  void."*  Or,  on  the  other  hand,  one  may  be  in- 
sane on  every  other  matter,  and  rational  enough  to  make  a 
will ;  and  although  it  would  be  difficult  in  such  cases  to  estab- 
lish the  sanity  of  the  testator,  yet  if  it  was  proven,  the  va- 
lidity would  not  be  affected  by  the  testator's  insanity  on  other 
subjects."*  And  so,  if  the  testator  is  only  suffering  from  a 
monomania  which  has  no  bearing  upon  his  judgment  and  ca- 
pacity to  make  the  will,  the  validity  will  not  be  affected 
thereby.'"     Thus,  the  subsequent  suicide  of  the  testator  raises 

Hardin,  83  Mo.  175;  Rule  v.  Maupin,  84  Mo.  587;  Delany  v.  Salina,  34 
Kan.  532;  Bosley  v.  McGough,  115  111.  11;  Shaver  v.  McCarthy,  110  Pa. 
St.  339,  5  Atl.  Rep.  614;  Prather  t;.  McClelland,  76  Texas  674,  13  S.  W. 
Rep.  543. 

63  3  Washburn  on  Real  Prop.  512;  Hopper's  Will,  33  N.  Y.  619; 
Alexander's  Will,  27  N.  J.  Eq.  463;  Townshend  V.  Townshend,  7  Gill 
10;  Denson  V.  Beazley,  34  Texas  191;  Morse  v.  Scott,  4  Dem.  507; 
Prather  v.  McClelland,  76  Texas  574,  13  S.  W.  Rep.  543;  In  re  White's 
Will  (N.  Y.),  24  N.  E.  Rep.  935;  Williams'  Exr.  v.  William  (Ky.),  1.3 
S.  W.  Rep.  250.  See  Roche  v.  Nason,  93  N.  Y.  S.  565;  In  re  Clap- 
ham's  li;st.  (Neb.  1905),  103  N.  W.  Rep.  61;  In  re  Cowdry's  Will 
(Vt.),  60  Atl.  Rep.  141;  Johnson  V.  Farrell,  215  111.  542,  74  N.  E.  Rep. 
760;  In  re  Hawley's  Will,  91  N.  Y.  S.  1097.  "  A  person  may  have  de- 
lusions in  believing  that  he  has  communications  with  the  spirits  of 
deceased  persons,  but  unless  such  communications  control  the  disposi- 
tion of  his  property,  the  believer  in  them  is  not  incompetent  to  make  a 
will."     In  re  Randall,  59  Atl.  Rep.  552,  99  Me.  396. 

•■*  A  most  remarkable  case  is  that  of  Cartwright  v.  Cartwright,  I 
Phill.  90,  where  the  testatrix,  having  been  violently  insane  for  some 
time,  was  permitted  to  write  a  will,  and  her  hands  were  untied  for  that 
purpose.  The  will  was  so  extremely  rational  in  its  terms  and  provi- 
sions that  the  court  held  it  to  have  been  made  in  a  lucid  interval.  See 
Bitner  v.  Bitner,  65  Pa.  St.  347;  Lamb  v.  Lamb,  105  Ind.  456;  In  re 
Voorhis,  9  N.  Y.  S.  201;  In  re  Lockwood,  8  N.  Y.  S.  345. 

esCoghlan  V.  Coghlan,  1  Phlll.  120;  Weir's  Will,  9  Dana  434.  "An 
undue  prejudice  by  testator  based  on  some  reason  is  not  an  insane  de- 
932 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    638 

no  presumption  against  the  validity  of  the  will."'  Where  the 
will  is  properly  executed  and  probated,  the  burden  of  proof 
of  the  testator's  mental  condition  is  on  the  contestant  who 
must  rebut  the  presumption  in  favor  of  the  testator's  sanity."^ 
Somewhat  similar  to  the  effect  of  insanity  of  testator  on  the 
validity  of  the  will,  is  that  of  the  exertion  of  undue  influence 
over  the  testator  in  the  construction  of  his  will.  The  influ- 
ence must  be  something  more  than  powerful  or  overruling 
through  the  force  of  argument.  In  order  to  invalidate  the 
will,  it  must  either  rest  upon  fraudulent  misrepresentations 
or  it  must  amount  to  duress.'* 

§  638.  Who  may  be  devisees  —  What  assent  necessary. — 
Any  person  may  be  a  devisee,  including  married  women,  in- 
fants, and  corporations,  which  are  not  prohibited  from  taking 
real  estate  by  devise.  Except  in  Pennsylvania,  the  Statute 
of  Mortmain  has  never  been  recognized  in  this  country  as  the 
common  law.  But  in  New  York,  and  perhaps  in  other  States, 
corporations  can  take  by  devise  only  within  the  limits  pre- 

lusion."  Tn  re  Clapham's  Estate  (Neb.  1905),  103  N.  W.  Rep.  61;  In  re 
Randall,  99  Me.  396,  59  Atl.  Rep.  552. 

8«  Burrows  v.  Burrough,  1  Hagg.  109;  Brooks  v.  Barrett,  7  Pick.  94; 
Duffield  V.  Morrows,  2  Harr.  375;  Roche  v.  Nason,  93  N.  Y.  S.  565. 

07  Fee  V.  Taylor,  83  Ky.  259;  Pendlay  f.  Eaton,  130  111.  69,  22  N.  E. 
Rep.  853.     But  see  contra,  Jones  v.  Roberts,  37  Mo.  App.  163. 

68  See  Re  Pemberton,  40  N.  J.  Eq.  520;  Stirling  v.  Stirling,  64  Md. 
138;  Sunderland  v.  Hood,  84  Mo.  293;  Bridwell  v.  Swank,  84  Mo.  455; 
Bush  V.  Bush,  87  Mo.  480;  In  re  Moon's  Will,  8  N.  Y.  S.  86;  Bonse's 
Will,  18  111.  App.  433;  Parson&  V.  Parsons,  66  Iowa  754;  Schofield  v. 
Walker,  58  Mich.  96;  Armstrong  v.  Armstrong,  63  Wis.  162;  In  re 
Mitchell's  Estate,  43  Minn,  73,  44  N.  W.  Rep.  885;  Bledsoe's  Exr.  t\ 
Bledsoe  (Ky.),  1  S.  W.  Rep.  10;  Jones  v.  Roberts,  37  Mo.  App.  163;, 
Dumont  V.  Dumont,  46  N.  J.  Eq.  223,  19  Atl.  Rep.  467;  In  re  White's 
Will  (N.  Y.),  24  N.  E.  Rep.  935;  Kaul  V.  Brown  (R.  I.),  20  Atl. 
Rep.  10;  Grove  v.  Spiker  (Md.),  20  Atl.  Rep.  144;  In  re  Bishop's  Will, 
10  N.  Y.  S.  217;  Hartman  v.  Strickler,  82  Va.  225;  In  re  De  Baun's 
Est.,  9  N.  Y.  S.  807;  Struth  v.  Decker  (Md.),  59  Atl.  Rep.  727;  Suc- 
cession of  Morere  (La.),  38  So,  Rep.  436;  In  re  Owen's  Est.  (Neb.), 
103  N.  W.  Rep.  675. 

933 


§    638  TITLE  BY  DEVISE.  [PART   III. 

scribed  by  statute."  A  devise  in  prcesenti  takes  effect  imme- 
diately after  the  death  of  the  testator.  It  is  necessary  that 
the  devisee  should  then  be  in  esse,  in  order  that  he  may  take  at 
all.''"  This  is  the  general  rule,  but  two  notable  exceptions  are 
now  very  generally  recognized.  It  is  now  generally  held 
that  a  devise  to  an  unboi-n  child  en  ventra  sa  mere  will  be 
good,  and  the  vesting  will  be  postponed  until  its  birth.^^  A 
devise  to  an  unincorporated  society,  if  for  a  charitable  use, 
will  be  good  and  vest  in  the  society  when  it  is  subsequently 
incorporated.^^  But  no  one  can  be  made  a  devisee  against 
his  will.  The  title  only  vests  in  him  when  he  assents  to  it. 
The  law,  however,'  presumes  an  acceptance  in  ordinary  cases 
where  the  devise  is  a  beneficial  one.  And  it  seems  doubtful 
that  any  disclaimer,  short  of  a  deed  of  renunciation,  will  be 
sufficient  to  vest  the  title  in  the  heir  to  the  exclusion  of  a  sub- 
sequent claim  of  the  devisee.'^  But  this  presumptive  accept- 
ance of  the  devisee  will  not  be  sufficient  to  bind  the  devisee 
by  the  charges  and  conditions  upon  the  estate.  Generally 
some  affirmative  act,  such  as  entry  into  possession,  will  be  re- 

89  3  Washburn  on  Real  Prop.  512,  513. 

70  2  Washburn  on  Real  Prop.  685 ;  3  Washburn  on  Real  Prop.  530 ; 
Ex  parte  Fuller  v.  Story,  327;  Ives  v.  Allen,  13  Vt.  629;  Lofton  V. 
Murchiaon  (Ga.),  7  S.  E.  Rep.  322.  But  very  often  a  devise  to  a  per- 
son not  in  esse  will  be  construed  as  an  executory  devise,  if  sjich  a  con- 
struction does  not  appear  to  be  contrary  to  the  intention  of  the  testator. 
See  ante,  Sec.  388. 

71  Burdett  v.  Hopegood,  1  P.  Wm.  486;  Mogg  v.  Mogg,  1  Meriv.  654; 
Pratt  V.  Flamer,  5  Harr.  &  J.  10.  See  Amyat  v.  Dwarris  (Eng.)  73 
Law  J.  P.  C.  40,  90  Law  T.  102,  20  L.  T.  Rep.  268. 

T2  Bartlett  V.  King,  12  Mass.  536 ;  Zimmerman  v.  Anders,  6  Watta 
&  S.  218;  Zeisweiss  v.  James,  63  Pa.  St.  465;  Am.  Tract  Soc.  V.  At- 
water,  30  Ohio  St.  77;  Estate  of  Ticknor,  13  Mich.  44.  Contra,  White 
V.  Howard,  46  N.  Y.  144.  And  see  State  v.  Warren,  28  Md.  338;  Craig 
V.  Secrist,  .54  Ind.  419;  White  v.  Hale,  2  Coldw.  77;  Tilden  v.  Green, 
2  N.  Y.  S.  584.  See  also  post.  Sec.  641.  See  Colbert  v.  Speer  (D.  C. 
1904),  24  App.  D.  C.   187;  Mosher  v.  Whntesy,  Id.;  Speer  v.  Speer,  Id. 

73  Co.  Lit.  Ill  a;  4  Kent's  Com.  533;  Doe  v.  Smyth,  6  B.  &  C.  112; 
Wilkinson  v.  Leland,  2  Pet.  627;  Webster  v.  Gilman,  1  Story  499;  Ea 
parte  Fuller,  2  Story  327;  Tele  v.  Hardy,  6  Cow.  340;  Bryan  v.  Hyre,  I 
Rob.  (Va.)  94. 
934 


CH.    XXIV.],  TITLE   BY   DEVISE.  §    640 

quired  to  make  him  liable.  But  if  he  enters  into  possession 
of  the  estate,  he  takes  it  subject  to  all  the  conditions  and  bur- 
dens imposed  by  the  testator.^* 

§  639.  Devisee  incapacitated  by  murder  of  the  testator. — 
In  a  late  case  of  the  New  York  Court  of  Appeals,  it  has  been 
held  that  a  devisee  or  legatee  will  be  restrained  from  partici- 
pating in  the  provisions  of  the  will  where  he  is  guilty  of  the 
murder  of  the  testator.  The  loss  of  such  legacy  or  devise  is 
declared  to  be  a  penalty  or  forfeiture  imposed  by  the  law 
by  implication  for  the  crime  of  murder,  on  the  general 
ground  that  it  could  not  have  been  the  intention  of  the  law, 
and  it  is  certainly  against  good  morals,  to  permit  such  a  bene- 
ficiary to  pjTofit  by  his  crime.  "What  could  be  more  unrea- 
sonable than  to  suppose  that  it  was  the  legislative  intention 
in  the  general  law  passed  for  the  orderly,  peaceable  and  just 
devolution  of  property  that  they  should  have  operation  in 
favor  of  one  who  murdered  his  ancestor  that  he  might  speed- 
ily come  into  the  possession  of  his  estate?  Such  an  inten- 
tion is  inconceivable.  We  need  not,  therf ore,  be  much 
troubled  by  the  general  language  contained  in  the  laws. "  " 
Whatever  may  be  thought,  as  a  question  of  morality  or  as  a 
proposition  for  future  legislation,  of  the  justice  of  depriving 
such  a  beneficiary  from  all  benefit  under  the  will  as  a  pun- 
ishment for  the  murder  of  the  testator,  it  is  certainly  a  very 
remarkable  case  of  judicial  legislation  for  the  court  to  im- 
pose such  a  penalty,  when  the  criminal  law  or  the  law  of  wills 
does  not  contain  any  express  provision  to  that  effect. 

§  640.  Devisee  and  devise  must  be  clearly  defined  —  Parol 
evidence. —  No  particular  formality  is  required  to  be  observed 
in  defining  the  subject-matter  of  a  devise,  the  only  general 
rule  being,  that  the  matter  must  be  stated  in  language  suffi- 
ciently clear  to  enable  the  courts  to  ascertain  the  person  and 

1*  Perry  v.  Hale,  44  N.  H.  65. 

76  Opinion  by  J.  Earl,  Rigg  v.  Palmer,  116  N.  Y.  606. 

935 


§    640  TITLE   BY   DEVISE.  [PART   III. 

property  intended.  The  devise  will  not  be  void  from  un- 
certainty, as  long  as  the  property  devised  and  the  person  of 
the  devisee  can  be  identified  by  the  description  in  the  will.^" 
A  devise  of  the  income  of  certain  lands  operates  as  a  devise 
of  the  land,  and  vests  in  the  devisee  a  perfect  legal  title 
thereto."  Where  a  devise  is  made  to  the  "children"  of  one, 
the  ordinary  construction,  in  the  absence  of  circumstances 
pointing  to  a  different  intention,  is  that  only  the  immediate 
offspring  of  the  person  are  included  in  the  devise,  and  that 
the  child  of  a  deceased  child  cannot  take  under  it.^**  But 
where  there  are  statutes  which  provide  that  the  devise  upon 
the  death  of  the  devisee  shall  not  lapse  but  shall  vest  in  such 
devisee's  children,  this  rule  of  construction  must  give  way.^® 
And  the  same  result  is  reached  where  the  context  shows  that 
the  word  "children"  is  used  in  the  sense  of  issue.®"  The 
devise  may  be  limited  to  the  survivors  of  two  or  more.®^     And 

76  Trustees,  etc.,  v.  Hart,  4  Wheat.  1;  Smith  v.  Smith,  4  Paige  271; 
Hoge  V.  Hoge,  1  Watts  214;  Newell's  Appeal,  24  Pa.  St.  197;  Baldwin 
V.  Baldwin,  7  N.  J.  Eq.  211;  Calhoun  V.  Furgeson,  3  Rich.  Eq.  160;  Ala- 
bama Conference  V.  Price,  42  Ala.  39. 

77  Ryan  V.  Allen,  120  111.  648;  Seiber's  Appeal  (Pa.)  9  Atl.  Rep.  863; 
King  V.  Grat,  55  Conn.  166;  Bell  v.  Fowler,  55  Conn.  364;  Davidson  v. 
Bates,  111  Ind.  391;  Davidson  v.  Hutchins  (Ind.),  13  N.  E.  Rep.  106; 
Dodd  V.  Winship,  144  Mass.  461;  Davis  V.  Williams,  1  Pickle  646;  Post 
r.  Rivers,  40  N.  J.  Eq.  21;  Williams  v.  McKinney,  34  Kan.  514. 

78  7n  re  Goble's  Will,  10  N.  Y.  S.  Rep.  692;  Demill  v.  Reid,  71  Md. 
175;  Hunt's  Appeal,  25  N.  W.  C.  450;  Wood's  Appeal,  25  W.  N.  C.  464; 
Hayne  v.  Irvine,  25  S.  C.  289;  Campbell  v.  Clark,  64  N.  H.  328;  Pugh 
V.  Pugh,  105  Ind.  552.  So  a  devise  to  "  heirs  at  law  "  is  held  to  mean 
the  heirs  living  at  the  time  of  the  authorized  distribution.  Hostetter  v. 
State  (Ohio  1904),  26  Ohio  Cir.  Ct.  R.  702. 

79Wooley  V.  Paxton,  46  Ohio  St.  307;  Pond  v.  Allen,  15  R.  I.  171; 
Stockbridge  V.  Stockbridge,  145  Mass.  517;  Patchen  V.  Patchen,  49  Hun 
270;  Chenault's  Guardian  v.  Chenault's  Estate  (Ky.),  9  S.  W.  Rep.  775; 
Outcalt  V.  Outcalt,  42  N.  J.  Eq.  500. 

80 Miller  v.  Carlisle  (Ky.),  14  S.  W.  Rep.  75;  Cody  v.  Bunn's  Exr., 
46  N.  J.  Eq.  131;  Schedel,  In  re,  73  Cal.  594;  Hall  v.  Hall,  140  Mass. 
267. 

81  Davis  V.  Davis,  118  N.  Y.  411;  Eldridge  v.  Eldridge,  41  N.  J.  Eq. 
414. 

936 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    640 

while  the  ** children "  may  be  construed  to  mean  "heirs," 
where  such  appears  to  be  the  intention  of  the  testator  giving 
the  first  taker  an  estate  in  fee,  instead  of  a  life  estate,**  yet  the 
presumption  is  always  against  such  a  construction,  and  in 
favor  of  holding  the  words  to  be  one  of  purchase  instead  of 
limitation,  giving  to  the  children  a  remainder,  and  the  parent 
a  life  estate,*'  or  permitting  them  to  take  jointly  with  their 
parents.**  The  courts  always  endeavor  to  ascertain  the  inten- 
tion of  the  testator,  if  possible,  and  for  that  purpose  give  the 
widest  latitude  possible  to  the  construction  of  wills,  so  that 
any  misconception  of  the  force  and  meaning  of  words  will  not 
prevent  the  will  from  taking  effect  or  give  it  a  wrong  appli- 
cation. Thus,  it  is  often  necessary  to  substitute  one  word  for 
another  in  a  will,  in  order  to  carry  out  the  intention  of  the 
testator.  It  is  very  common  to  substitute  "and"  for  "or," 
and  vice  versa,  "all"  for  "any,"  and  the  like.  But  this  can 
only  be  done  where  the  intention  is  clearly  shown  on  the 
face  of  the  will  to  be  contrary  to  the  ordinary  meaning  of 
the  words  used.*"  It  has  also  been  held  proper  to  construe 
"heirs"  to  mean  children,  when  the  context  shows  that  the 
word  was  used  by  the  testator  in  that  sense.*"  So,  also,  it 
has  been  held  that  a  devise  to  S.  's  family  and  M.  may  be  con- 

82Lockwood'8  Appeal,  55  Conn.  157;  Smith  v.  Fox's  Admr.,  82  Va. 
763;   Mason  v.  Aramon,    117  Pa.  St.   127.     See  ante,  Sec.  322. 

83  Foster  v.  McKenna  (Pa.),  11  Atl.  Rep.  674;  McDonald  v.  Dunbar 
(Pa.),  12  Atl.  Rep.  553;  Jones  v.  Cable,   114  Pa.  St.  586;   Affolter  v. 

May,  115  Pa.  St.  54. 

84  Proctor  V.  Proctor,  141  Mass.  165. 

85  Story  Eq.  Jur.,  Sec.  179;  Johnson  v.  Simcock,  7  H.  &  Norm.  344; 
Jackson  v.  Blanchan,  6  Johns.  54 ;  Jackson  v.  Topping,  1  Wend.  396 ; 
Holcombe  v.  Luke,  25  N.  J.  L.  605;  Roe  v.  Vengut,  117  N.  Y.  204;  Gray 
V.  Missionary  Society  (N.  Y.),  2  N.  Y.  S.  878;  Massay  v.  Davenport,  23 
S.  C.  453. 

8«  Barton  v.  Tuttle,  62  N.  H.  558 ;  In  re  Session's  Estate,  70  Mich. 
297 ;  Wiggins  v.  Perkins,  64  N.  H.  36 ;  Lockwood's  Appeal,  55  Conn. 
157;  Anthony  v.  Anthony,  55  Conn.  256;  Ballentine  v.  Wood,  42  N.  J. 
Eq.  552;  Myrick  V.  Heard,  31  Fed.  Rep.  241;  Eldridge  v.  Eldridge,  41 
N.  J.  Eq.  414.  But  see  Reniston  v.  Adams,  80  Me.  290;  Fabens  v. 
Fabens,  141  Mass.  395;  Randolph  r.  Randolph,  40  N.  J.  Eq.  75. 

937 


§    640  TITLE   BY   DEVISE.  [PART   TIT. 

strued  to  give  one-half  of  the  property  to  M.  and  the  residue 
only  to  the  children  of  S.,  instead  of  making  M.  share  alike 
with  the  children  of  S.*^  But  if  the  words  "share  and  share 
alike"  had  been  inserted  in  the  clause  of  the  will,  this  con- 
struction would  not  have  been  sustained.^®  The  word  "fam- 
ily" is  generally  construed  to  mean  the  children  of  the  person 
named  and  his  wife,  if  there  be  one.*®  "Personal  representa- 
tives" can  be  construed  to  mean  "next  of  kin. ""°  And 
many  such  examples  of  elastic  construction  may  be  referred 
to.'^     It  is  the  general  rule,  subject  to  exceptions  to  be  men- 

87  Silsby  V.  Sawyer,  64  N.  H.  580. 

88 /w  re  Swinburne   (R.  I.),  14  Atl.  Rep.  850. 

89  Langmaid  v.  Hurd,  64  N.  H.  526 ;  Silsby  V.  Sawyer,  64  N.  H.  580. 

90  Da  vies  v.  Da  vies,  55  Conn.  319. 

91  Jenkins  v.  Jenkins,  64  N.  H.  407,  "  issue  "  means  legitimate  off- 
spring; Dexter  v.  Inches  (Mass.),  17  N.  E.  Rep.  551;  "issue"  including 
grandchildren ;  Russell  v.  Russell,  84  Ala.  48 ;  "  my  children  "  does  not 
include  a  child  legally  adopted ;  to  same  effect,  see  Session's  Estate 
(Mich.),  38  N.  W.  Rep.  249;  Reinders  v.  Koppelman,  94  Mo.  338;  God- 
dard  v.  Amory  (Mass.),  16  N.  E.  Rep.  725,  "my  nephews  and  nieces" 
does  not  include  the  wives  of  the  nephews  of  the  testator ;  Lockman  V. 
Hobbs,  98  N.  C.  541;  "heirs"  held  to  mean  children  and  to  exclude 
grandchildren;  Locke  V.  Locke  (N.  J.),  16  Atl.  Rep.  49;  "nearest  rela- 
tions "  means  brothers,  to  exclusion  of  nephews  and  nieces ;  Mayer  i". 
Hover  (Ga.),  7  S.  E.  Rep.  562,  "children  of  H.  &  M."  held  to  take 
per  stirpes  and  not  per  capita;  to  same  effect,  see  Shepard's  Heirs  r. 
Shepard's  Estate  (Vt.),  14  Atl.  Rep.  536;  Eyer  v.  Beck  (Mich.),  3S 
N.  W.  Rep.  20;  Frazer  v.  Dieton,  78  Ga.  474;  Lockwood's  Appeal,  5') 
Conn.  157;  Alston's  Appeal  (Pa.),  11  Atl.  Rep.  366;  Woodward  r. 
James,  14  Abb.  N.  C.  246;  Swinburne,  In  re  (R.  I.),  14  Atl.  Rep.  850; 
Cumming's  Exr.  v.  Cummings  (Mass.),  16  N.  E.  Rep.  401.  Contra, 
Campbell  v.  Clark,  64  N.  H.  328;  Dole  v.  Keyes,  143  Mason  237;  Hug- 
gins  V.  Huggins,  72  Ga.  825;  Kindro  v.  Johnston,  15  Lea  78;  McKel- 
vey  V.  McKelvey,  43  Ohio  St.  213;  De  Laurencel  r.  De  Broom,  67  Cal. 
362;  Avery  v.  Everett,  110  N.  Y.  317;  imprisonment  for  life  does  not 
amount  to  death,  in  a  limitation  over  on  the  death  of  first  taker; 
Simon's  Will;  In  re,  55  Conn.  239;  "family"  construed  to  include  wife 
and  daughter,  but  exclude  an  adult  son;  Weeks  v.  Cornwell,  104  N.  Y. 
325;  "legatees"  construed  to  mean  "devisees;"  Wilcox's  Appeal,  54 
Conn.  320 ;  limiting  the  meaning  "  the  above  named  devisees ;  "  to  the 
same  effect,  Brabham  V.  Crosland,  25  S.  C.  525;  Wyeth  v.  Stone,  144 
Mass.  441 ;  devise  of  one's  "  farm  "  held  to  include  outlying  tracts  of 

938 


CH.    XXIV.]  TITLE    BY    DEVISE.  §    640 

tioned  hereafter,  that  parol  evidence  is  not  admissible  to 
prove  the  intention  of  the  testator."^  The  explanatory  rule, 
which  has  been  recognized  as  the  prevailing  test  since  the  days 
of  Bacon,  is  that  parol  evidence  is  not  admissible  to  explain 
away  a  patent  ambiguity,  while  it  may  control  and  remove  a 
latent  ambiguity.  The  ambiguity  may  concern  the  person 
intended  to  take  or  the  thing  devised.  The  distinction  be- 
tween latent  and  patent  ambiguity,  in  respect  to  the  admissi- 
bility of  parol  evidence,  lies  in  a  rule  already  given,  that  the 
intention  must  be  gathered  from  the  will  itself.  If  it  is  a 
patent  ambiguity  the  will  does  not  express  any  certain  in- 
tention, and  it  is,  therefore,  void  from  uncertainty.  But  if 
the  ambiguity  is  latent,  i.  e.,  discovered  dehors  the  will,  there 
would  be  no  ambiguity  as  to  the  intention  of  the  testator  if 
the  investigation  was  confined  to  the  will  itself.  The  am- 
biguity, arising  from  extraneous  facts,  may  in  like  manner  be 

land,  commonly  known  as  a  part  of  it;  West  V.  Randle  (Ga.),  3  S.  E. 
Rep.  454,  "all  the  property"  limited  in  its  meaning  by  the  context; 
Stewart's  Estate,  74  Cal.  98,  devise  of  "  one-half  of  all  my  estate  "  to 
the  wife,  held  to  pass  to  her  only  the  one-half  of  the  community  prop- 
erty, which  if  wife  excluded  she  could  claim  without  a  devise.  "Grand- 
children cannot  take  under  bequest  in  a  will  to  children  as  a  class,  un- 
less there  is  something  in  the  will  to  indicate  such  an  intention." 
Lyon  V.  Baker  (Ga.  1905),  50  S.  E.  Rep.  44.  "The  use  in  a  will  of 
the  word  "  lawful,"  qualifying  the  word  "  heirs,"  is  not  sufficient  of 
itself  to  show  an  intention  not  to  use  the  word  "  heirs  "  in  its  ordinary 
legal  sense,  as  a  word  of  inheritance  or  of  limitation."  Wool  V.  Fleet- 
wood  (N.  C.   1904),  48  S.  E.  Rep.  785. 

»2  Farrar  v.  Ayres,  5  Pick.  407 ;  Barrett  v.  Wright,  13  Pick.  405 ; 
Jackson  V.  Lill,  11  Johns.  201;  White  v.  Hicks,  33  N.  Y.  383;  Dey  V. 
Dey,  19  N.  J.  Eq.  137;  Kelly  v.  Kelly,  25  Pa.  St.  460;  Mordecai  v.  Jones, 
«  Jones  Eq.  365;  Coffin  v.  Elliott,  9  Rich.  Eq.  244;  Willis  v.  Jenkins,  30 
Ga.  169;  Mitchell  v.  Walker,  17  B.  Mon.  61;  Fitzpatrick  v.  Fitzpatrick, 
36  Iowa  674;  Robinson  V.  Bishop,  23  Ark.  378;  Love  V.  Buchanan,  40 
Miss.  758.  This  holds  true  as  to  fatal  misdescriptions  of  the  land; 
parol  evidence  cannot  supply  the  true  description.  Ehrmann  v.  Hoskins, 
6  So.  Rep.  776  (Miss.);  Sturgis  v.  Work,  122  Ind.  134;  Morelock  v. 
Barnard  (Tenn.),  2  S.  W.  Rep.  32;  Whitesides  v.  Whitesides  (S.  C), 
5  S.  E.  Rep.  816;  Christy  v.  Badger,  72  Iowa  581;  Bowen  v.  Allen, 
113  III.  53;  8.  c.  55  Am.  Rep.  398. 

939 


§   641  TITLE  BY  DEVISE.  [PART  HI. 

explained  away  without  violating  the  rule  of  evidence,  that 
parol  evidence  is  not  admissible  to  contradict  a  writing.'^  It 
is  always  admissible  to  show  by  extraneous  evidence  that  cer- 
tain rights  are  appurtenant  to  the  land  devised,  and  hence 
they  too  pass  to  the  devisee,  although  not  specially  named  in 
the  will." 

§  641.  Devises  to  charitable  uses. —  A  notable  exception  to 
the  rule,  requiring  the  devisee  to  be  definitely  ascertained,  oc- 
curs in  the  case  of  devises  to  charitable  uses.  It  will  be  im- 
possible to  do  more  than  give  a  general  outline  of  this  most 
interesting  and  difficult  subject.  The  subject  has  been  dis- 
cussed and  treated  by  many  of  America's  inost  eminent 
jurists,  and  yet  it  does  not  seem  to  be  definitely  settled  in  all 
its  details,  no  uniform  rule  having  been  adopted  or  discovered 
which  would  be  reliable  and  applicable  in  all  the  States.®'^  It 
is  here  laid  down  that  gifts  to  charitable  uses  will  be  sus- 
tained, although  there  are  no  trustees  and  no  definite  bene- 
ficiaries, provided  the  general  intent  of  the  testator  can  be 
ascertained.  It  has  already  been  explained  ^®  that  courts  of 
equity  will  never  suffer  a  trust  to  fail  for  the  want  of  a  trus- 
tee. But  in  ordinary  trusts  the  cestui  que  trust  must  be 
definite  and  ascertained.  The  statute  of  43  Eliz.  ch.  4,  en- 
acted that  where  a  devise  was  made  to  a  charitable  use,  and 

93  Miller  v.  Travers,  8  Bing.  244;  The  Lady  Franklin,  8  Wall.  325; 
Shaw  V.  Shaw,  50  Me.  94;  Billings  v.  Billings,  10  Cush.  178;  Cabot  f. 
Windsor,  11  Allen,  346;  Pickering  v.  Pickering,  50  N.  H.  349;  Spencer 
t).  Higgins,  22  Conn.  521;  Mann  v.  Mann,  14  Johns.  1;  Hinneman  v. 
Rosenbeck,  39  N.  Y.  98 ;  Nicholls  V.  Williams,  22  N.  J.  Eq.  63 ;  Love  v. 
Buchanan,  40  Miss.  758;  Stephens  V.  Walker,  8  B.  Mon.  600;  Grimes  v. 
Harmon,  35  Ind.  246;  Fitzpatrick  v.  Fitzpatrick,  36  Iowa,  674.  See 
Smith  V.  Kimball,  62  N.  H.  606. 

9*  Nye  V.  Hoyle,  120  N.  Y.   195. 

95  The  subject  constitutes  more  properly  a  part  of  the  general  sub- 
jects of  Equity  Jurisprudence  and  Uses  and  Trusts,  and  to  standard 
works  on  these  subjects,  together  with  Prof.  Theo.  W.  Dwight's  argu- 
ment in  the  Rose  Will  Case,  published  in  book  form,  the  reader  is  re- 
ferred for  a  full  and  comprehensive  discussion  of  it. 

»«  See  ante.  Sec.  376. 
940 


CH.    XXIV.  J  TITLE   BY   DEVISE,  §    641 

no  trustee  was  appointed,  the  court  of  chancery  shall  have 
the  power  to  appoint  trustees,  who  shall  administer  the  trust 
in  conformity  with  the  testator's  wishes,  if  they  could  be 
definitely  ascertained  and  carried  out,  and  if  not,  then  as 
nearly  as  possible,  the  latter  provision  being  known  as  the 
cy  pres  doctrine.  It  has  always  been  a  matter  of  consider- 
able doubt  whether  the  provisions  of  this  statute  constituted 
a  part  of  the  American  jurisprudence,  but  the  general  impor- 
tance of  this  question  has  been  dissipated  by  the  almost 
unanimous  conclusion  of  the  courts,  that  the  statute  was 
only  remedial  and  confirmatory  of  the  power  which  the  court 
of  chancery  had  previously  possessed  and  exercised.®^  The 
uncertainty  which  in  private  trusts  would  invalidate  the  de- 
vise, but  which  could  be  cured  under  the  doctrine  of  char- 
itable uses,  may  refer  either  to  the  trustee,  to  the  beneficiary, 
or  to  the  object  of  the  devise.  In  all  charitable  uses  the  bene- 
ficiaries are  indefinite  and  uncertain,  usually  consisting  of  a 
class,  the  individuals  of  which  are  constantly  changing. 
Thus,  where  a  devise  is  made  to  a  university,  or  to  found 
one,  the  beneficiaries  are  the  students  who  from  time  to  time 
enter  its  halls.  But  it  is  a  general  rule  that  the  object  of 
charity,  and  the  class  of  persons  who  are  to  be  benefitted  by 
it,  should  be  sufficiently  described  as  to  be  capable  of  identifi- 

•TVidal  V.  Gerard,  2  Kow.  127;  Going  v.  Emery,  16  Pick.  107;  Bap- 
tist Ass.  V.  Hart,  4  Wheat.  1;  Witman  V.  Lex,  17  Serg.  &  R.  88;  Jack- 
son V.  Phillips,  14  Allen  577 ;  Burbank  v.  Whitney,  24  Pick.  152 ;  Potter 
V.  Thornton,  7  R.  I.  263;  Bell  Co.  v.  Alexander,  22  Texas  362;  Inglis 
V.  Trustees  of  Sailors'  Snug  Harbor,  3  Pet.  140.  Contra,  Bascom  v. 
Albertson,  34  N.  Y.  618.  But  whether  the  Court  of  Chancery  had 
original  jurisdiction,  or  it  was  conferred  upon  it  by  the  statute  of 
Elizabeth,  the  doctrine  of  Charitable  Uses  is  generally  recognized 
throughout  the  United  States.  See  Tappan  v.  Deblois,  45  Me.  122; 
Drew  V.  Wakefield,  54  Me.  295;  Atty.-Gen.  v.  Moore,  19  N.  J.  Eq.  503; 
Trustees,  etc.,  v.  Zanesville  C.  &  M.  Co.,  9  Ohio  203;  Gals  v.  Wilhite, 
2  Dana  170;  Griffin  v.  Graham,  1  Hawks  96;  Miller  v.  Chittenden,  2 
Iowa  315.  See,  also,  Bingham  v.  Peter  Bent  Bingham  Hospital,  134 
Fed.  Rep.  513;  Cadman  v.  Bingham  (Mass.  1905),  72  N.  E.  Rep.  1008. 

941 


§  641  TITLE   BY   DEVISE,  [PAKT   III, 

cation.®®  Where  there  is  a  trustee  or  board  of  trustees  ap- 
pointed by  the  will  to  administer  the  trust,  it  seems  to  be 
the  universal  rule,  adopted  alike  in  all  the  States,  that  such  a 
charitable  trust  will  be  sustained  if  the  class  of  beneficiaries 
is  definitely  described.  And  I  apprehend  that  a  greater  un- 
certainty is  permissible  in  such  cases  than  in  those  in  which 
no  trustee  has  been  appointed."®  And  where  the  trustees  are 
authorized  by  the  will  to  exercise  their  discretion  in  the  selec- 
tion of  the  beneficiaries,  the  devise  has  in  many  cases  been 
declared  definite  and  valid,  while  it  would  probably  be  in- 
valid, if  the  trustees  were  not  appointed  by  the  will.  Id  cer- 
ium est,  quod  cerium  reddi  potest.^  It  is  also  the  rule,  in 
perhaps  all  the  States  except  New  York,  that  where  the  ob- 
ject of  the  devise  is  certain  and  ascertainable,  it  will  be  sus- 
tained, although  there  are  no  ascertained  trustees  or  bene- 
ficiaries. The  courts  of  equity  have  the  power  in  such  cases 
to  appoint  trustees  to  carry  out  the  will  and  administer  the 
trust.^     Whether  the  English  doctrine  of  cy  pres  is  applica- 

»8  Wheeler  v.  Smith,  2  How.  55;  Perin  v.  Carey,  24  How.  465;  Loring 
V.  Marsh,  6  Wall.  337;  Atty.-Gen,  V.  Trinity  Church,  9  Allen  422; 
Treat's  Appeal,  30  Con.  113;  State  V.  Griffith,  2  Del.  Ch.  392;  Newson  V. 
Clark,  46  Ga.  88;  Wade  v.  Am.  Col.  Soc,  7  Smed.  &  M.  695;  More  ft 
Moore,  4  Dana  354;  Miller  v.  Teachout,  24  Ohio  St.  525;  DeBruler  V. 
Ferguson,  54  Ind.  549;  Heuser  V.  Allen,  42  111.  425;  Elnell  V.  Univer- 
salist  Gen.  Convention,  76  Texas  514. 

99  Perry  on  Tr.,  See.  732;  Downing  v.  Marshall,  23  N.  Y.  366;  Going 
V.  Emery,  16  Pick.  107;  Treat's  Appeal,  30  Conn.  113;  Schultz's  Ap- 
peal, 80  Pa.  St.  396 ;  State  V.  Griffith,  2  Del.  Ch.  392 ;  Needles  V.  Mar- 
tin, 33  Md.  609;  DeBruler  v.  Furguson,  54  Ind.  549;  Schmueker  V.  Reel, 
61  Mo.  592;  Miller  v.  Chittenden,  2  Iowa  315. 

1  Treat's  Appeal,  30  Conn.  113;  Witman  V.  Lex,  17  Serg.  &  R.  88; 
Atty.-Gen.  V.  Jolly,  1  Rich.  Eq.  99.  But  there  must  be  some  definite 
description  of  the  class  of  persons  from  which  the  trustees  are  to  select. 
Wheeler  V.  Smith,  9  How.  55;  Fontain  V.  Ravenel,  17  How.  369;  Levy 
V.  Levy,  33  N,  Y.  97;  Gallego  V.  Atty.-Gen.,  3  Leigh  450;  Miller  V. 
Atkinson,  63  N.  C.  537.  See,  Cadman  v.  Bingham  (Mass.),  72  N.  E. 
Rep.  1008;  Jenkins  V.  Berry  (Ky.),  83  S.  W.  Rep.  594;  Smith  t>. 
Havens  Relief  Fund  Soc,  90  N.  Y.  S.  168;  Worcester  City  Mission  Soc. 
V.  Mem.  Ch.,  186  Mass.  531,  72  N.  E.  Rep.  71. 

2  Preachers'  Aid  Soc.  V.  Rich,  45  Me.  552;  Bliss  v.  Am.  Bible  Soc,  2 

942 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    642 

ble  in  this  country  to  a  devise  to  a  charitable  use,  where  no 
trustee  is  appointed,  is  a  matter  of  some  doubt.  It  is  cer- 
tain, however,  that  the  courts  would  not,  in  following  the 
tendency  of  the  English  courts,  go  so  far  as  to  authorize 
funds,  bequeathed  to  found  a  Jews'  synagogue,  to  be  trans- 
ferred to  a  foundling  hospital,  as  was  done  in  one  case  by  an 
English  court.'  And  if  the  doctrine  is  recognized,  it  is  ap- 
plied in  subordination  to  the  general  rule,  that  the  courts 
cannot  supply  the  intention  of  the  testator  by  conjecture, 
but  must  act  in  strict  compliance  with  a  general  intent,  ap- 
pearing on  the  face  of  the  will,  and  then  only  when  the  special 
intent  cannot  be  carried  out.*  Finally  the  doctrine  of  perpe- 
tuity does  not  apply  to  charitable  uses.^ 

§  642.  Lapsed  devises  —  What  becomes  of  them. —  A  will 
speaks  from  the  death  of  the  testator,  and  all  the  elements 
requisite  to  the  validity  of  the  devi^o  must  bp  present  and 
existing  then,  in  order  that  the  devise  may  take  effect.  If 
any  one  is  wanting,  as,  for  example,  if  the  devisee  has  died 
before  the  testator,  the  devise  lapses.  And  this  is  the  case, 
although  the  devise  is  expressly  limited  to  the  devisee  and 

Allen  334;  Sanderson  v.  White,  18  Pick.  328;  McAllister  v.  McAllister, 
46  Vt.  272;  Zeisweiss  v.  James,  63  Pa.  St.  465;  Dashiell  v.  Atty.-Gen., 
5  Har.  &  J.  392;  Walker  V.  Walker,  25  Ga.  420;  Mason  v.  M.  E.  Church, 
27  N.  J.  Eq.  47;  Williams  v.  Pearson,  38  Ala.  299;  Griffin  v.  Graham, 
1  Hawks  96.  Contra,  Levy  V.  Levy,  33  N.  Y.  97;  Bascom  v.  Alhertson, 
34  Iowa  584;  Downing  v.  Marshall,  23  N.  Y.  366.  But  see  Tilden  v. 
Green,  2  N.  Y.  S.  584.     See,  Smith  v.  Relief  Fund  Soc,  90  N.  Y.  S.  168. 

3  3  Washburn  on  Real  Prop.  521;  Story  on  Eq.  Jur.,  Sec.  1169. 

*Fontain  V.  Ravenel,  17  How.  389;  Loring  v.  Marsh,  6  Wall.  337; 
Harvard  College  v.  Society,  etc.,  3  Gray  283;  Saunderson  v.  White,  18 
Pick.  333 ;  Brown  v.  Concord,  33  N.  H.  285 ;  Holmes  v.  Mead,  52  N.  Y. 
344;  Philadelphia  V.  Girard,  etc.,  45  Pa.  St.  28;  Methodist  Church  v. 
Remington,  1  Watts  226;  Cromie's  Heirs  v.  Louisville  Home  Soc,  3 
Bush.  375.  The  oy  pres  doctrine  was  applied  in  Massachusetts  in  Cad- 
man  V.  Bingham,  72  N.  E.  Rep.  1008. 

5  Jackson  v.  Phillips,  14  Allen  550;  Odell  v.  Odell,  10  Allen  8;  Gass 
V.  Wilhite,  2  Dana  183 ;  Miller  v.  Chittenden,  2  Iowa  362.  Contra,  Levy 
V.  Levy,  33  N.  Y.  130;  Bascom  v.  Alhertson,  34  N.  Y.  598. 

943 


§    642  TITLE  BY   DEVISE.  [PART  III. 

his  heirs.  The  word  "heirs"  in  this  connection  is  construed 
as  a  word  of  limitation,  and  the  heirs  cannot  take  as  pur- 
chasers, unless  it  is  the  plain  intent  of  the  testator  to  give 
them  the  devise,  as  a  limitation  over  in  case  of  the  death  of 
their  ancestor.*  But  unless  there  is  an  explicit  declaration 
of  the  person  or  persons  who  are  to  take  the  devise  in  the 
place  of  the  deceased  devisee,  no  declaration  that  the  devise 
shall  not  lapse  upon  the  death  of  the  devisee  will  prevent  it 
lapsing.^  A  devise  to  two  or  more  as  joint  tenants  will  not 
lapse  upon  the  death  of  one,  not  even  as  to  his  share.  The 
survivors  will  take  the  entire  estate.*  But  the  share  of  one 
co-tenant  in  a  devise  to  several  as  tenants  in  common  lapses, 
the  difference  in  the  rule  arising  out  of  the  distinction  be- 
tween the  two  kinds  of  joint  estates.®  If  the  devise  is  to  a 
class,  the  individuals  of  which  are  changing,  such  as,  for  ex- 
ample, a  devise  to  my  "children,"  not  naming  them  or  indi- 
cating in  any  other  way  that  certain  definite  individuals  were 
intended,  those  individuals  of  the  class  who  survive  the  testa- 
tor take  the  entire  devise,  and  there  can  be  no  lapse  of  such 
a  devise  unless  all  the  persons,  who  could  be  included  in  the 

8  Long  V.  Watson,  17  Beav.  471;  HinchliflFe  v.  Westwood,  2  De  G. 
&  S.  216;  Kimball  v.  Story,  108  Mass.  382;  Armstrong  v.  Moran,  1 
Bradf.  314;  Hawn  V.  Banks,  4  Edw.  Ch.  664;  Weishaupt  V.  Brehman,  5 
Binn.  115;  Comfort  v.  Mather,  2  Watts  &  S.  450;  Dickinson  v.  Parvis, 
8  Serg.  &  R.  71;  Hand  v.  Marcy,  28  N.  J.  Eq.  59;  Davis  v.  Taul,  6 
Dana  52.     See,  Nelson  V.  Nelson  (Ind.  1904),  72  N.  E.  Rep.  482. 

7  Williams  on  Ex.  1306;  2  Redf.  on  Wills,  163;  Aspinwall  v.  Duck- 
worth, 45  Beav.  307;  Hutchinson's  Appeal,  34  Conn.  300;  Craighead  v. 
Given,  10  Serg.  &  R.  351.  For  lapsed  devise,  in  such  a  case,  under 
Statute  of  Kentucky,  see,  Schroeder  v.  Bohlsen,  84  S.  W.  Rep.  535. 

8  Anderson  v.  Parsons,  4  Me.  486 ;  Doyle  v.  Doyle,  103  Mass.  489 ;  Dc 
Camp  V.  Hall,  42  Vt.  483;  Bolles  V.  Smith,  39  Conn.  219;  Putnam  V. 
Putnam,  4  Bradf.  -308;  Stephens  V.  Miller,  24  N.  J.  Eq.  358;  Craycroft 
V.  Craycroft,  6  Har.  &  J.  54;  Luke  V.  Marshall,  5  J.  J.  Marsh.  357. 

» Upham  V.  Emerson,  119  Mass.  509 ;  Cummings  v.  Bramhall,  120 
Mass.  552;  Allison  v.  Kurtz,  2  Watts  185;  Mason  v.  Trustees  Methodist 
Church,  27  N.  J.  Eq.  47;  Mebane  v.  Womack,  2  Jones  Eq.  293;  Gray  v. 
Bailey,  42  Ind.  349;  Appeal  of  Ryon,  124  Pa.  St.  628. 

944 


CH.    XXIV.]  TITLE   BY    DEVISE.  ^    G42 

class  described,  have  predeceased  the  testator.^"  And  even 
where  the  members  of  the  class  are  given,  it  has  been  held  that 
there  will  be  no  lapse  of  the  devise,  if  there  is  nothing  else 
in  the  will  to  rebute  the  presumption  that  the  persons  named 
are  to  take  as  a  class."  It  is  now  also  provided  in  a  number 
of  the  States  that  upon  the  death  of  the  devisee  before  the  tes- 
tator, if  he  be  a  son  or  other  relative  of  the  testator,  his  lineal 
heirs  will  take  the  estate  in  his  place.  The  statutes  vary  in 
detail,  some  confining  the  provisions  to  the  lineal  heirs  of  a 
deceased  son  or  grandson,  others  extending  the  benefit  to  the 
general  heirs  of  any  relative  who  is  named  as  a  devisee,  while 
others  go  to  the  length  of  declaring  the  heirs  of  all  devisees 
capable  of  taking  in  their  ancestor's  place,  thus  abolishing 
altogether  the  doctrine  of  lapse  in  case  of  the  death  of  the 
devisee.**  After  determining  that  in  a  given  case  a  devise 
has  lapsed,  there  is  the  further  question,  in  whom  does  it  vest. 
And  it  may  be  stated  as  a  general  rule  everywhere,  in  the 
absence  of  statutory  provisions  to  the  contrary,  that  although 
lapsed  legacies  and  bequests  go  to  the  residuary  legatee, 
lapsed  devises  vest  in  the  heir  at  law."     A  distinction  is  made 

10  2  Redf.  on  Wills,  170;  1  Jar.  on  Wills  (5  Am.  ed.)  623;  Dimond  v. 
Bostick,  L.  R.  10  Ch.  358;  Schaffer  V.  Kettell,  14  Allen  528;  Downing 
V.  Marshall,  23  N.  Y.  366;  Young  v.  Robinson,  11  Gill  &  J.  328;  Yeates 
V.  Gill,  9  B.  Mon.  206.  See,  Langley  v.  Trust  Co.  (N.  Y.  1905),  73  N. 
E.  Rep.  44. 

11  Schaffer  V.  Kettell,  14  Allen  528;  Stedman  v.  Priest,  103  Mass.  293; 
Warner's  Appeal,  39  Conn.  253 ;  Magaw  v.  Field,  48  N.  Y.  668 ;  Hoppock 
V.  Tucker,  59  N.  Y.  202;  Springer  v.  Congleton,  30  Ga.  977.  Contra, 
Williams  V.  Neff,  52  Pa.  St.  333 ;  Frazier  v.  Frazier,  2  Leigh  642.  See, 
also,  Morse  v.  Morse,  11  Allen  36;  Todd  v.  Tott,  64  N.  C.  280;  Starling 
V.  Price,  16  Ohio  St.  32.  See,  Fiske  v.  Fiske's  Heirs,  26  R.  I.  509,  59 
Atl.  Rep.  740;  In  re  Smith's  Estate,  210  Pa.  604,  60  Atl.  Rep.  255. 

12  3  Washburn  on  Real  Prop.  523;  1  Jar.  on  Wills  (5  Am.  ed.)  638, 
Am.  note;  Moore  v.  Dimond,  5  R.  I.  121;  Sheets  v.  Grubb,  4  Mete. 
(Ky.)   340. 

13  Doe  V.  Underdown,  Willes  293;  Doe  v.  Scott,  3  Maule  &  S.  300; 
Hayden  V.  Stoughton,  5  Pick.  528;  Austin  v.  Cambridgeport  Parish,  21 
Pick.  224 ;  Remington  V.  Am.  Bible  Soc,  44  Conn.  672 ;  James  v.  James, 
4  Paige  115;  Van  Cortlandt  v.  Kip,  7  Hill  346;  Gill  r.  Brouwer,  37  N. 

60  945 


§    643  TITLE   BY    DEVISC.  [PART  IH. 

in  the  English  law,  in  this  connection,  between  those  clevises 
which  lapse  from  the  death  of  the  devisee  after  the  execution 
of  the  will,  and  those  which  are  void  ah  initio  for  some  cause, 
such  as  the  death  of  the  devisee  before  the  execution  of  the 
will.  In  the  latter  case  it  is  held,  that  the  lapsed  devise  goes 
to  the  residuary  devisee,  on  the  ground  that  since  the  testator 
intends  the  residuary  devisee  to  take  all  the  property  not  pre- 
viously disposed  of,  the  testator  intends  him  to  take  this  void 
devise,  for  a  void  devise  does  not  dispose  of  the  property.^* 
But  the  weight  of  authority,  in  fact  all  the  authorities  except 
the  case  just  cited,  reject  this  distinction,  holding  that  the 
attempt  to  make  a  specific  devise  indicates  the  intention  at 
the  time  that  the  residuary  devisee  is  not  to  take,  and  by  the 
common  law  the  residuary  devisee  only  takes  what  was  in- 
tended for  him  at  the  time  of  making  the  will.^°  The  exist- 
ence of  the  will  is  not  at  all  affected  by  the  lapse  of  devises. 
Even  though  all  the  devisees  and  legatees  should  die  before 
the  testator,  the  will  would  nevertheless  remain  operative  out- 
side of  the  devises  and  bequests.^** 

§  643.  Revocation  of  wills. —  Until  the  death  of  the  testator 
the  will  is  ambulatory  and  can  be  revoked  at  the  pleasure  of 
the  testator.  But  in  order  that  it  may  be  revoked,  something 
more  must  be  done  than  a  declaration  to  that  effect.  Revoca- 
tion may  be  express  or  implied.  An  express  revocation  re- 
sults from  an  affirmative  act  of  the  testator,  animo  revocandi. 
A  revocation  is  implied  from  some  act  of  the  testator  incon- 

Y.  549;  Lingan  v.  Carroll,  3  Har.  &  McH.  333;  Starkweather  v.  Am. 
Bible  Soc,  72  111.  50;  Wilson  v.  Odell,  58  Mich.  533. 

i*Doe  V.  Sheffield,  13  East  526;  Ferguson  v.  Hedges,  1  Harr.  524. 
See,  also,  O'Connor  v.  Murphy   (Cal.  1905),  81  Pac.  Rep.  406. 

18  Van  Kleek  v.  Dutch  Church,  20  Wend.  427;  Green  V.  Dennis,  6 
Conn.  292;  State  v.  Whitbank,  2  Harr.  18;  Lingan  v.  Carroll,  3  Har.  & 
McH.  333.  See,  also,  Colville  v.  Kinsman  (N.  J.  Ch.  1905),  60  Atl.  Rep. 
959;  .Varick  v.  Smith  (N.  J.  Ch.),  61  Atl.  Rep.  159;  Duckworth  v. 
Jordan  (N.  C),  57  S.  E.  Rep.  109;  Lacey  v.  Floyd  (Texas),  87  S.  W. 
Rep.  665. 

18  Hoitt  V.  Hoitt,  63  N.  H.  475,  56  Am.  Rep.  530. 
946 


CH.    XXIV,]  TITLE   BY   DEVISE.  §    644 

sistent  with  the  continued  existence  of  the  will,  but  not  ex- 
pressly intended  to  revoke  the  will,  or  from  some  subsequently 
occurring  circumstances  which  the  law  has  declared  incom- 
patible with  the  will,  and  which  in  consequence  works  a  revo- 
cation. These  various  modes  of  revocation  will  be  discussed 
in  tue  succeeding  paragraphs. 

§  644.  Joint  or  mutual  wills. —  The  only  exception  to  the 
general  revocability  of  wills  occurs  in  the  case  of  joint  or 
mutual  wills.  Although  these  wills  were  at  first  looked  upon 
as  suspicious  and  doubtful  instruments,  they  are  now  recog- 
nized as  valid.  Until  the  death  of  either  party,  the  will  is 
revocable  by  either,  although  such  revocation  may  work  a 
breach  of  a  valid  and  effective  compact."  But  after  the 
death  of  one  of  the  testators,  the  vesting  of  his  part  of  the  will 
is  considered  as  being  so  far  the  part  performance  of  an  ex- 
ecutory contract,  as  to  prevent  the  revocation  of  the  will  by 
the  survivor." 

IT  Gould  V.  Mansfield,  103  Mass.  403 ;  Clayton  v.  Liverman,  2  Dev.  4. 
B.  558;  Evans  v.  Smith,  28  Ga.  98;  Schumacher  v.  Schmidt,  44  Ala. 
454.  In  Breathitt  v.  Whittaker,  8  B.  Hon.  530,  it  was  held  that  a  joint 
will  could  not  be  revoked  at  all. 

iBDufour  V.  Pereira,  1  Dick.  419;  Ex  parte  Day,  1  Bradf.  478;  Izard 
V.  Middleton,  1  Desau.  115;  Schumacher  v.  Schmidt,  44  Ala.  454.  By 
statute,  in  Iowa,  a  will  can  only  be  revoked  by  being  cancelled  or  de- 
stroyed, or  by  the  execution  of  a  subsequent  will.  Richardson  v.  Bond> 
102  N.  W.  Rep.  128.  See,  for  presentation  of  a  claim  due  to  the 
devisee,  amounting  to  a  revocation,  In  re  Stevens'  Will,  94  N.  Y.  S.  588. 
"  Where  a  husband  and  wife  adopt  an  instrument  as  their  will  which 
disposes  of  the  separate  but  not  of  the  joint  property,  either  may  revoke 
it,  in  the  absence  of  a  valuable  consideration  to  support  a  contract  to 
dispose  of  the  property  in  the  manner  set  forth  in  the  will."  Buchanan 
r.  Anderson  (S.  C.  1905),  50  S.  E.  Rep.  12,  70  S.  C.  454.  "A  will  de- 
vising land  in  fee  is  not  revoked  by  a  subsequent  conveyance  of  the  land 
to  the  devisee."  Woodward  v.  Woodward  (Colo.  1905),  81  Pac.  Rep. 
322.  "  Under  Civ.  Code  Ga.  1895,  Sees.  3341,  3342,  in  order  to  revoke 
a  will  executed  in  Georgia,  the  revocation  must  be  executed  with  the 
same  formality  and  attested  by  the  same  number  of  witnesses  as  are 
requisite  for  the  execution  of  the  will."  Caatena  v.  Murray  (Ga.  1905), 
50  S.  E.  Rep.   131. 

947 


§    G45  TITLE   BY    DEVISE.  [pAF.T    III. 

§  645.  Revocation  by  destruction  of  will. —  Any  burning, 
cancellation,  or  other  destruction  of  the  instrument,  although 
such  destruction  be  only  partial,  will  be  sufficient  to  revoke  a 
will.  All  that  is  necessary  is  some  act  conclusive  of  an  inten- 
tion to  destroy  it."  But  the  act  of  destruction  must  have 
been  done  animo  revocandi,  and  it  requires  just  aS  much  ca- 
pacity of  mind  to  revoke  a  will  as  it  does  to  make  one.'^"  Loss 
or  unintentional  destruction  of  the  will  or  its  destruction  by 
a  third  person  without  the  consent  or  explicit  ratification  of 
the  testator,  will  have  no  effect  upon  the  force  and  validity 
of  the  will.  Provision  is  always  made  for  the  proof  by  com- 
petent witnesses  of  contents  of  such  wills.^^  Not  only  is  the 
intention  to  revoke  necessary  to  give  to  an  act  of  destruction 
the  effect  of  a  revocation,  but  the  act  is  also  necessary.  A 
mere  intention  to  revoke,  without  doing  some  act  required  by 
law  to  evince  that  intention,  will  not  work  a  revocation ;  and 
this  is  also  true,  although  the  execution  of  the  intention  to 
destroy  the  will  has  been  frustrated  by  the  fraudulent  or 
other  interference  of  a  third  person.^^  But  if  the  will  is 
proven  to  have  been  in  the  possession  of  the  testator,  and 
there  is  no  evidence  to  show  that  he  ever  gave  it  into  another's 


"Goods  of  Frazer,  L.  R.  2  P.  &  D.  40;  Sweet  v.  Sweet,  2  Redf.  451; 
Evan's  Appeal,  58  Pa.  St.  244;  Johnson  v.  Brailsford,  2  Nott  &  M.  272; 
Bohannon  v.  Woleot,  1  How.  (Miss.)  336;  Richardson  v.  Baird  (Iowa), 
102  N.  W.  Rep.  128. 

20  Laughton  v.  Atkins,  1  Pick.  535 ;  Smith  v.  Wait,  4  Barb.  23 ;  For- 
man's  Will,  54  Barb.  274;  Idley  v.  Bowen,  11  Wend.  227;  Burns  r. 
Burns,  4  Serg.  &  R.  295;  Smock  v.  Smock,  11  N.  J.  Eq.  156;  Dewier  r. 
Rodes'  Admr.  (Ky.),  83  S.  W.  Rep.  115. 

21  Mills  V.  Millward,  15  Prob.  Div.  20;  Todd  V.  Rennick,  13  Colo.  546, 
22  Pac.  Rep.  898;  De  Groot's  Will,  9  N.  Y.  S.  471. 

22  Clark  V.  Smith,  34  Barb.  340;  Delafield  v.  Parrish,  25  N.  Y.  9; 
Clingan  v.  Mitcheltree,  31  Pa.  St.  25;  Dunlop  v.  Dunlop,  10  Watts  153; 
Mundy  v.  Mundy,  15  N.  J.  Eq.  290.  See  Card  v.  Grinman,  5  Conn. 
164;  Blanchard  v.  Blanchard,  32  Vt.  62;  Runkle  v.  Gates,  11  Ind.  95; 
Smiley  v.  Gambill,  2  Head  164;  Rife's  Appeal,  110  Pa.  St.  232,  1  Atl. 
Rep.  226. 

948 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    647 

keeping,  the  fact  that  it  cannot  be  found  raises  the  presump- 
tion that  the  testator  destroyed  it.^' 

§  646.  Effect  of  alterations  of  will  after  execution. —  Unless 
the  will  is  republished  and  attested  again,  an  alteration  in  the 
terms  of  the  will,  will  not  affect  the  operation  of  the  original 
provisions;  and  if  the  original  terms  have  not  been  hopelessly 
obliterated  by  the  attempted  change,  the  will  takes  effect  as  if 
there  had  been  no  alteration.  Unless  the  alteration  has  been 
made  valid  by  a  re-execution  of  the  will,  it  cannot  have  the 
effect  of  a  partial  revocation  of  the  original  will.^* 

§  647.  Revocation  hy  marriage  and  issue. —  As  has  already 
been  explained,  a  single  woman  could  at  common  law  make  a 
will,  but  a  married  woman  could  not.  In  consequence  of  this 
disability  upon  the  married  woman,  it  was  held  that  the  will 
of  a  single  woman  was  revoked  by  her  subsequent  marriage.*^ 
In  some  of  the  States  married  women  are  permitted  to  make 
wills,  but  in  the  same  States  it  is  generally  provided  that  the 
husband  shall  be  heir  of  an  intestate  wife.  It  is,  therefore, 
still  generally  enacted  by  statute  in  those  States  that  the  sub- 
sequent marriage  of  a  testatrix  will  work  an  absolute  revoca- 
tion of  the  will.^"  The  rule  is,  however,  different  in  other 
States,  the  marriage  being  held  to  have  no  effect  on  their 
ante-nuptial  wills."     But  the  marriage  of  a  man  does  not  at 

23  Kerrigan  v.  Hart,  40  Hun  389 ;  Bauskett  v.  Keitt,  22  S.  C.  187. 

24  Gardiner  v.  Gardiner  (N.  H.),  19  Atl.  Rep.  651;  Tomlinson'a  Ap- 
peal, 25  W.  M.  C.  447  (Pa.),  19  Atl.  Rep.  482.  See,  In  re  Hay  (Eng. 
1904),  73  Law  J.  Ch.  33,  1  Ch.  317. 

25  3  Washburn  on  Real  Prop.  539 ;  4  Kent's  Com.  527 ;  Forse  v.  Hem- 
bling,  4  Rep.  61;  Cotter  v.  Layer,  2  P.  Wms.  624;  Morton  v.Onion,  45 
Vt.  145;  Blodgett  V.  Moore,  141  Mass.  75. 

20  Statutes  of  this  character  are  to  be  found  in  Alabama,  Arkansas, 
California,  Indiana,  Missouri,  New  York  and  Oregon.  1  Jar.  on  Wills 
(5  Am.  ed.)  269,  Am.  note. 

27  Noyes  v.  Southworth,  55  Mich.  173,  54  Am.  Rep.  369.  See,  In  re 
Goods  of  Groos  (Eng.  1904),  73  Law  J.  Prob.  82,  91  Law  T.  322. 
"  Where  a  married  woman  made  a  will  and  the  husband  died  and  she 

949 


§    647  TITLE   BY    DEVISE.  [PART   DI, 

common  law  revoke  his  prior  will,  unless  he  has  issue.  The 
wife. at  common  law  could  not  be  the  heir  of  her  husband, 
and  she  was  considered  amply  provided  for  in  her  dower. 
There  was,  therefore,  no  change  effected  in  the  man's  circum- 
stances by  his  marriage,  which  would  call  for  a  revocation  of 
his  will,  until  issue  was  born  to  him.''*  But  in  a  great  many 
of  the  States  the  widow  is  now  by  statute  made  an  heir  to  the 
husband,  and,  although  there  are  statutes  in  some  of  these 
States  expressly  declaring  a  man's  will  revoked  by  his  sub- 
sequent marriage,  his  marriage  would  revoke  the  will  with- 
out any  express  enactment.^®  But  the  subsequent  marriage 
and  having  of  issue  will  only  work  a  revocation,  as  a  gen- 
eral rule,  where  the  testator  has  not  provided  in  his  will  for 
the  contingency  of  his  marriage.  If  he  has  made  provisions 
for  his  future  wife  and  children,  the  will  will  stand.^°  If  a 
child  has  been  unintentionally  omitted  from  the  provisions 
of  a  will,  it  is  generally  provided  by  statute  that  the  will  will 
be  revoked  pro  tanto,  and  the  share  which  this  child  would 
have  received  of  his  father's  estate,  had  he  died  intestate,  will 
be  given  to  it.'^  But  a  testator  may  disinherit  a  child  if  he 
wishes,  and  it  may  be  shown  by  parol  that  the  omission  of  his 
name  was  intentional.^^  But  in  some  of  the  States  it  is  held 
that  the  intention  to  disinherit  cannot  be  shown  by  parol  evi- 

subsequently  remarried,  the  will  was  revoked  under  Civ.  Code  Ga.  1895, 
Sec.  3347."     McWhorter  v.  O'Neal    (Ga.  1904),  49  S.  E.  Rep.  592. 

28  Warner  v.  Beach,  4  Gray  162;  Havens  v.  Van  den  Burgh,  1  Denio 
27;  Tomlinson  V.  Tomlinson,  1  Ashm.  224;  McCullum  v.  McKenzie,  26 
Iowa  510;  Carey  v,  Baughn,  36  Iowa  542. 

29  See  Walker  v.  Hall,  34  Pa.  St.  483 ;  Am.  Board  v.  Nelson,  72  111. 
564. 

30  Wheeler  v.  Wheeler,  1  R.  I.  364;  Miller  v.  Phillips,  9  R.  I.  141; 
Warner  v.  Beach,  4  Gray  162;  Bush  v.  Wilkins,  4  Johns.  Ch.  506;  Ha- 
vens V.  Van  den  Burgh,  1  Denio  27;  Deupree  v.  Deupree,  45  Ga.  415; 
Yerby  t;.  Yerby,  3  Call  334. 

31  In  re  Grider's  Estate,  81  Cal.  571,  22  Pac.  Rep.  908. 

82Doane  v.  Lake,  32  Me.  268;   Wilson  v.  Fosket,  6  Mete.  400;  Ban- 
croft V.   Ives,  3  Gray  367;    Ramsdill  v.   Wentworth,    101    Mass.    122; 
Buckley  v.  Gerard,  123  Mass.  8;  Conlam  v.  Doull,  4  Utah  267,  9  Pac. 
Rep.  568,   133  U.  S.  216. 
950 


CH.   XXIV.  ]j  TITLB  BY  DEVISE.  §   648 

denee,  and  that  the  intention  must  be  gathered  from  the  will.^' 
There  are  similar  statutory  rules  in  most  of  the  States,  pro- 
viding for  a  partial  revocation  of  a  will  in  favor  of  posthu- 
mous children.  But  if  the  testator  manifests  an  intention  to 
disinherit  posthumous  children,  as  well  as  others,  they  cannot 
make  any  claim  to  a  revocation  of  the  will  under  these  stat- 
utes.^* But  in  all  the  cases  of  revocation  by  marriage  and 
birth  of  issue  the  rule  only  applies  to  wills,  which  dispose  of 
the  testator's  own  property.  It  does  not  apply  to  wills  exe- 
cuted under  a  power  of  appointment,  disposing  of  property 
which  the  wife  or  children  of  the  testator  could  under  no 
circumstances  inherit.'' 

§  648.  Revocation  by  alteration  or  exchange  of  property. — 
If  the  testator  disposes  of  the  property  devised  by  alienation 
inter  vivos,  it  will,  of  course,  revoke  the  devise.'"  And  this 
is  also  the  rule  in  equity,  where  the  testator  has  contracted  to 
sell,  but  has  made  no  conveyance ;  that  is,  if  specific  perform- 
ance of  the  contract  is  asked  for  and  granted:  but  subject  to 
the  vendee's  right  to  specific  performance,  the  devise  will 
nevertheless  take  effect.^^    But  although,  under  the  old  Eng- 

88  Chaee  v.  Chace,  6  R.  I.  407 ;  Pounds  v.  Dale,  48  Mo.  270 ;  Estate 
of  Garrand,  34  Cal.  336;  In  re  Steven's  Estate,  83  Cal.  322,  23  Pac. 
Rep.  379.  See,  Olcott  V.  Tope,  115  111.  App.  121,  213  lU.  124,  72  N.  E. 
Rep.   750. 

s^Osborn  v.  Jefferson  Bank,  116  111.  130. 

ssLoring  v.  Marsh,  6  Wall.  337;  Blagge  V.  Miles,  1  Story  426;  Wilder 
V.  Thayer.  97  Mass.  439;  Brush  V.  Wilkina,  4  Johns.  Ch.  506;  Havens 
V.  Van  den  Burgh,  1  Denio  27;  Burch  v.  Brown,  46  Mo.  441;  Schneider 
V.  Koester,  54  Mo.  500 ;  Bresee  V.  Stilas,  22  Wis.  120 ;  Estate  of  Utz,  43 
Cal.  200. 

aoBosley  v.  Bosley,  14  How.  390;  Brown  v.  Thorndike,  15  Pick.  388; 
In  re  Van  Mickel,  14  Johns.  324;  McNaughton  V.  McNaughton,  34  N. 
Y.  201;  Brush  v.  Brush,  11  Ohio  287;  Floyd  v.  Floyd,  7  B.  Mon.  290; 
Wells  V.  Wells,  35  Miss.  638.  See  contra.  Woodward  v.  Woodward 
(Colo.  1905),  81  Pac.  Rep.  322. 

87  4  Kent's  Com.  527 ;  Darley  r.  Darley,  Wils.  36 ;  Walton  v.  Walton, 
7  Johns.  Ch.  258;  Kean's  Case,  9  Dana  25;  Chadwick  v.  Tatem  (Mont.), 
23  Pac.  Rep.  729. 

951 


§    649  TITLE   BY   DEVISE.  [PART   III. 

lish  rule  concerning  after-acquired  property,  the  rule  mif?ht 
be  different,  it  is  now  held  that  the  subsequent  conveyance 
of  the  land  to  the  testator  will  revive  the  devise  without  any 
formal  republication."*  Not  only  does  the  actual  conveyance 
of  the  land  revoke  a  devise,  but  it  has  also  been  held  that  an 
unsuccessful  or  void  conveyance  will  have  the  same  effect  as 
indicating  an  intention  to  revoke  the  devise.^® 

This  rule  would  hardly  be  followed  at  the  present  day. 
The  revocation  by  exchange  or  sale  of  the  property  devised 
is  only  implied  from  the  act  of  sale ;  and  implications  are  never 
permitted  to  operate  beyond  what  is  made  necessary  by  the 
act,  which  gives  rise  to  the  implication.  If,  therefore,  an  at- 
tempted conveyance  fails,  it  should  not  operate  as  a  revoca- 
tion of  the  devise.***  But  these  acts  will  not  in  any  case  con- 
stitute a  revocation  of  the  will  itself ;  their  only  effect  will  be 
upon  the  particular  devise.*^ 

§  649.  Revocation  by  subsequent  will  or  codicil. —  A  will 
may  also  be  revoked  by  a  subsequent  will  or  codicil.  A  codi- 
cil is  nothing  more  than  a  supplementary  will,  and  only  re- 
vokes the  will  pro  tanto.  A  subsequent  will  or  codicil  may 
revoke  the  prior  will  by  implication,  where  the  two  are  incon- 
sistent and  cannot  stand  together;  or  the  testator  may  in  his 
subsequent  will  expressly  declare  the  prior  will  revoked.  And 
in  the  absence  of  an  express  revocation  the  prior  will  will  be 
revoked  only  as  to  those  provisions,  which  are  inconsistent 
with  the  dispositions  made  in  the  subsequent  will  or  codicil.*^ 

38  Brown  v.  Brown,  16  Barb.  569;  Woolery  v.  Woolery,  48  Ind.  523. 

39  3  Washburn  on  Real  Prop.  538,  539;  4  Kent's  Com.  529. 
*o  Morey  v.  Sohier,  63  N.  H.  507,  56  Am.  Rep.  538. 

41  Hoitt  V.  Hoitt,  63  N.  H.  475,  50  Am.  Rep.  530. 

42  Pickering  v.  Langdon,  22  Me.  413;  Brant  v.  Wilson,  8  Cow.  56; 
Van  Vechten  v.  Keator,  63  N.  Y.  52;  Smith  v.  McChesney,  15  N.  J. 
Eq.  359;  Bartholomew's  Appeal,  75  Pa.  St.  169;  Boudinot  v.  Bradford, 
2  Dall.  266;  Fetters  v.  Petters,  4  McCord  151;  Brownfield  v.  Wilson,  78 
111.  467;  Bobb's  Succession  (La.),  7  So.  Rep.  60;  Sturgis  v.  Work.  122 
Ind.   134,  22  N.  E.  Rep,  996.     See,  In  re  Stratum's  Will,  94  N.  Y.  S. 

952 


CH.    XXIV.]  TITLE   BY   DEVISE.  §    650 

And  the  burden  is  upon  the  one  opposing  the  earlier  will  to 
show  that  the  testator  intended  to  revoke  it.**  Of  course,  an 
instrument  which  is  strictly  a  codicil,  could  only  revoke  ex- 
pressly or  by  implication  some  provision  of  the  will  to  which 
it  is  annexed.  There  could  not  be  an  express  revocation  of 
the  entire  will,  for  such  a  provision  would  make  such  a 
"codicil"  an  independent  will.**  Where  the  prior  will  is 
only  revoked  by  the  subsequent  will  by  implication  from  the 
inconsistency  of  its  clauses,  revocation  by  destruction  of  the 
second  will  will  revive  the  prior  will  without  any  former  re- 
publication.*^ But  if  the  prior  will  has  been  cancelled,  or  is 
revoked  by  express  declaration,  a  republication  as  formal  as 
the  original  execution  is  generally  necessary  to  revive  it.** 
But  it  has  been  generally  held  that  the  execution  of  a  codicil, 
containing  an  express  reference  to  the  prior  will,  is  a  suffi- 
cient republication  to  bring  the  prior  will  into  active  opera- 
tion again  from  the  time,  when  the  codicil  was  executed.*^ 

§  650.  Defective  will  confirmed  by  codicil. —  Where  the  codi- 
cil refers  to  and  recognizes  the  existence  of  a  will  which  has 

588;  Woodward  v.  Woodward  (Colo.),  81  Pac.  Rep.  322;  Castens  v. 
Murray   (Ga.),  50  S.  E.  Rep.  131. 

*s  Richards  V.  Queen's  Proctor,  18  Jur.  540;  Leslie  v.  Leslie,  6  Ired. 
Eq.  332. 

44Gelbke  v.  Gelbke,  88  Ala.  427,  6  So.  Rep.  834. 

<5  4  Kent's  Com.  528;  3  Washburn  on  Real  Prop.  540;  Brown  v. 
Brown,  8  E.  &  B.  876;  Wood  v.  Wood,  L.  R.  I.  P.  &  D.  309;  Bohannon 
V.  Walcot,  1  How.  (Miss.)  336.  In  New  York,  Ohio,  Indiana,  Missouri 
and  Arkansas  the  ^ior  will  can  only  be  revived  by  republication  in  any 
case.     3  Washburn  on  Real  Prop.  542,  note. 

«  James  v.  Marvin,  3  Conn.  576;  Rudisiles  v.  Rodes,  29  Gratt.  147; 
Bohannon  v.  Walcot,  1  How.  (Miss.)  336;  Beaumont  v.  Keim,  50  Mo. 
28.  Contra,  Lawson  V.  Morrison,  2  Dall.  286.  See,  Taylor  v.  Taylor,  2 
Nott  k  M.  482. 

4T  Havens  v.  Foster,  14  Pick.  534;  Mooers  v.  White,  6  Johns.  Ch. 
375;  Van  Cortlandt  v.  Kip,  1  Hill  590;  Jones  v.  Jones,  1  Gill  395; 
Rose  V.  Drayton,  4  Rich.  Eq.  260;  Jones  v.  Shewmake,  35  Ga.  151; 
Stover  V.  Kendall,  1  Coldw.  557;  Barker  v.  Bell,  46  Ala.  216;  Armstrong 
V.  Armstrong,  14  B.  Mon.  333. 

953 


§    652  TITLE   BY    DEVISE.  [PABT  m. 

been  defectively  executed,  or  which  has  been  altered  after  its 
execution,  it  has  been  held  that  such  adoption  of  the  will  by 
the  codicil  renders  it  a  valid  testament  as  it  stood  on  the  date 
of  the  execution  of  the  codicil.*' 

But  it  has  been  held  that  the  will  must  have  been  signed  or 
acknowledged  by  the  testator  in  order  that  it  may  be  validated 
by  a  codicil.  The  mere  reference  to  a  written  instrument  by 
what  purports  to  be  a  codicil  will  not  make  it  a  valid  will,  if 
it  is  not  signed  or  acknowledged  by  the  supposed  testator  or 
written  by  him.*" 

§  661.  Contingent  wills. —  In  connection  with  the  subject  of 
revocation,  it  may  be  well  to  state  something  concerning  con- 
tingent wills.  A  will  can  be  made  to  take  effect  or  to  fail 
upon  the  happening  of  the  contingency.  A  common  case  is  a 
will  made  expressly,  to  take  effect  only  upon  the  death  of  the 
testator  away  from  home  or  while  on  a  journey.  If  the  tes- 
tator survives  the  contingency,  the  will  cannot  be  admitted  to 
probate.^" 

§  652.  Probate  of  will. —  In  the  States  of  this  country, 
different  from  the  old  English  law,  it  is  provided  that  wills 
of  real  property  shall  be  admitted  to  general  probate,  and 
when  they  have  been  admitted,  and  placed  on  record,  the 
probated  will  becomes  conclusive  evidence  of  its  own  proper 
execution  in  any  case  arising  collaterally  in  another  court.^^ 

48Burge  V.  Hamilton,  12  Ga.  568;  Anderson  V.  Anderson,  L.  R.  13 
Eq.  381;  Mooers  V.  White,  6  Johns.  Ch.  360;  Van  Cortlandt  V.  Kip,  1 
Hill  590. 

4»  Sharp  V.  Wallace,  83  Ky.  584. 

80  In  re  Porter,  L.  R.  2  P.  &  D.  22 ;  Lindsay  v.  Lindsay,  L.  R.  2  P.  & 
D.  459;  Tarver  V.  Tarver,  9  Pet.  174;  Ritter's  Appeal,  59  Pa.  St.  9; 
Wagner  V.  McDonald,  2  Har.  &,  J.  346;  Jacks  v.  Henderson,  1  Desau. 
643;  Maxwell,  3  Mete.  (Kj.)  101.  But  see  contra,  Damon  v.  Damon,  8 
Allen  192. 

513  Washburn  on  Real  Prop.  508;  1  Greenl.  on  Ev.,  Sec.  518.  See, 
In  re  Goods  of  Schenley  (Eng.  1904),  20  Law  T.  R.  127;  Vernon  V. 
Vernon  (N.  J.  1905),  61  Atl.  Rep.  409.  "A  proceeding  in  the  probate 
954 


CH.    XXIV.]  TITLiE   BY   DEVISE.  §    653 

It  is  also  provided  by  the  Statutes  of  Probate  that  a  copy 
of  the  will  certified  by  the  judge  of  probate  or  his  clerk  is 
competent  evidence  of  its  contents.  The  old  English  law  only 
provided  for  the  probate  of  wills  of  personal  property. 

§  653.  Agreements  as  to  testamentary  disposition  of  property. 
—  Very  often  agreements  are  made  by  the  owners  of  property 
with  others,  to  the  effect  that,  if  the  latter  perform  certain 
duties  or  render  certain  services  to  them,  they  will  make  some 
testamentary  provision  in  behalf  of  the  person  who  agrees  to 
render  the  service.  If  the  services  are  rendered,  the  agree- 
ment will  be  enforced  by  the  courts  after  the  testator's  death 
against  his  estate  if  he  has  refused  or  failed  to  make  the  tes- 
tamentary provision.^'*  But  the  agreement  must  be  clearly 
proven,  and  be  a  valid  contract,  in  order  that  it  may  be  en- 
forced by  the  courts  in  opposition  to  the  will."*' 

court  to  establish  a  will  does  not  come  within  the  category  of  a  civil 
action,  but  is  a  special  proceeding,  though  the  latter  is  not  defined  in 
the  statute."     Lanning  v.  Gay   (Kan.  1904),  78  Pac.  Rep.  810. 

52  Lee's  Appeal,  53  Conn.  363 ;  Schutt  v.  Meth.  Epis.  Missionary  Soc., 
41  N.  J.  Eq.  115;  McKeegan  V.  O'Neill,  22  S.  C.  454;  Whetstine  v.  Wil- 
son, 104  N.  C.  385,  10  S.  E.  Rep.  471;  Andrews  v.  Brewster,  9  N.  Y.  S. 
114.    In  re  Lewallen's  Est.,  27  Pa.  Sup.  Ct.  320. 

•'•■•»  Davis  V.  Hendricks,  99  Mo.  478,  12  S.  W.  Rep.  887 ;  Snyder  v. 
Snyder  (Wis.),  45  N.  W.  Rep.  818.  "A  man  or  a  woman  may  enter 
into  a  binding  contract  to  dispose  by  will  in  a  particular  manner  of 
the  whole  or  any  part  of  his  or  her  property,  real  or  personal.  Such 
a  contract  must,  of  course,  be  based  on  sufficient  consideration."  In  re 
Lewallen's  Estate,  27  Pa.  Super.  Ct.  320.  "  Oral  and  written  state- 
ments made  by  an  owner  that  he  intended  his  farm  for  his  sister,  and 
that  he  would  will  the  same  to  her, 'merely  show  an  intention  to  make 
a  gift,  unenforceable  after  his  death."  Mitchell  V.  Pirie  (Wash.  1905), 
80  Pac.  Rep.  774.  "  A  bequest  of  property  in  trust  is  not  a  substantial 
compliance  with  a  contract  to  bequeath  it  absolutely."  Earnhardt  v. 
Clement  (N.  C.  1904),  49  S.  E.  Rep.  49.  "An  agreement  whereby  a 
father  was  to  convey  a  farm  to  his  son  in  consideration  of  the  latter's 
remaining  at  home  and  managing  the  farm  was  broken  by  the  conduct 
of  the  son  in  leaving  the  farm  and  removing  to  another  locality." 
Eastwood  V.  Crane  (Iowa  1904),  101  N.  W.  Rep.  481. 

955 


CHAPTER  XXV. 

REGISTRATION    OF    TITLES. 

Section  654.  History  of  legislation  regarding. 

655.  Object  of  statutes  providing  for. 

656.  Constitutionality  of  statutes  concerning. 

657.  Registrars  and  examiners  provided. 

658.  How  land  is  brought  under  statute. 

659.  Proceedings  before  examiner. 

660.  Jurisdiction  and  power  of  the  court. 

661.  Effect  of  registration. 

662.  Conveyances  under  the  Torrens  law. 

663.  Death  of  owner  —  Transmission  of  land. 

664.  Judgments,  liens  and  assessments  against  land. 
•    665.  Relief  against  arbitrary  power  of  registrar. 

666.  Indemnity  and  procedure  to  recover. 

667.  Advantages  and  objections  to  title  registration. 

§  654.  History  of  legislation  regarding. — The  registration 
of  titles  to  real  estate,  carried  out  by  legislative  acts,  pro- 
viding either  for  the  optional  or  compulsory  examination  of 
the  title  and  recording  of  the  examiner's  certificate,  or  the 
adjudication  as  to  the  title,  if  same  is  determined  by  judicial 
inquiry,  together  with  all  subsequent  transfers  or  claims, 
effecting  the  title,  has  been  in  vogue,  in  one  form  or  another, 
in  some  of  the  European  countries  for  several  centuries.^  The 
system  of  registration  of  land  titles,  in  English-speaking 
countries,  is  generally  known  as  the  "Torrens  System,"  so 
called  from  Sir  Robert  Torrens,  who,  in  1858,  prepared  the 

1 "  In  Austria-Hungary  registration  dates  from  the  twelfth  century. 
In  Baden,  the  system  dates  from  1809 ;  in  Saxony,  from  1843."  "  Reg- 
istration of  title  was  made  universal  in  Austria,  in  1811;  in  Hungary,  in 
1849,  and  in  Prussia,  in  1872."  Sheldon's  Land  Registration,  p.  112, 
Report,  Fortescue  to  British  Gov.  on  Land  Registration  in  Germany 
and  Austria-Hungary,  31  Am.  Law  Review  827. 
956 


en,    XXV.]  REGISTRATION    OF   TITLES.  §    655 

first  law  enacted  in  Australia.-  The  success  of  the  Torrens 
System,  in  Australia,  was  so  pronounced,  that  in  the  next 
succeeding  years,  up  to  and  including  1885,  most  of  the  Eng- 
lish colonies  adopted  similar  or  dissimilar  legislation,  pro- 
viding for  the  registration  of  land  titles.^  As  originally 
adopted  in  England,  the  registration  of  titles  to  real  estate 
was  optional  with  the  owner,*  but  this  law  met  with  such  op- 
position from  the  legal  profession  and  the  citizens  generally 
that  in  1897  the  present  Land  Transfer  Act  was  passed, 
which,  with  the  successive  acts,  established  compulsory  regis- 
tration of  land  titles,  in  England.  Illinois  was  the  first  of 
the  United  States  to  adopt  a  title  registration  law,**  but  the 
adoption  of  such  a  system  was  agitated  in  Massachusetts  even 
before  the  law  was  passed  in  Illinois,*  and  laws  providing  for 
the  registration  of  titles  to  land  have  since  been  adopted  in 
California,^  Masachusetts,^  Minnesota  ^  and  Ohio.^° 

§  655.  Object  of  statutes  providing  for. —  It  cannot  well  be 
doubted,  by  any  one  familiar  with  the  examination  of  titles, 
that  there  are  obstacles  to  be  encountered  from  a  perusal  of 
the  records  of  the  successive  deeds  and  muniments  pi  title, 
by  the  paid  examiner  of  the  title  to  be  passed  on  the  occasion 
of  each  transfer,  not  only  because  of  the  liability  to  overlook 
some  record  essential  to  the  title,  but  also  because  the  validity 

2  31  Am.  Law  Rev.  827,  Sheldon  Land  Reg.,  p.  114. 

3  Queensland  1861,  New  South  Wales  1862,  New  Zealand  1870,  West 
Australia  1874,  British  Columbia  1870,  Manitoba  and  Ontario  1885, 
Sheldon  Land  Reg.,  p.  114. 

♦  Westbury  Act  1862,  Cairns  Act  1875. 

5  Originally  passed  as  "  An  act  concerning  land  titles,"  June  13,  1895 ; 
re-enacted  and  amended  May  1,  1897. 

«  In  his  inaugural  address  and  message  to  the  legislature,  in  1891, 
Gov.  Russell  recommended  the  law  providing  for  registration  of  titles, 
in  Massachusetts. 

T  The  law  was  passed  in  California  in  1897. 

8  Finally  adopted  in  Massachusetts  in  1898. 

»Gen.  Laws  Minn.  1901,  p.  348,  c.  237. 

10  Adopted  in  Ohio  in  1896,  but  held  invalid  by  Supreme  Court,  in 
State  V.  Guilbert,  56  Ohio  St.  575. 

957 


§    656  REGISTRATION   OP   TITLES.  [PART   III. 

of  the  title  so  often  depends  upon  facts  or  proceedings  not 
shown  by  the  records  at  all.  This  insecurity  to  the  land- 
owner, resulting  from  the  practical  inability  of  the  title  ex- 
aminer, where  records  of  conveyances  and  facts,  not  of  record, 
determines  the  validity  of  the  ownership,  to  vouchsafe  a  mar- 
ketable title,  in  all  cases,  and  the  expense  and  delay  incident 
to  the  re-examination  of  the  deeds,  records,  abstracts  or  muni- 
ments of  title,  with  every  recurring  conveyance  or  incum- 
brance of  the  land,  are  some  of  the  reasons  which  gave  rise 
to  the  legislation  providing  for  registration  of  titles,  com- 
monly known  as  the  Torrens  System.  Under  this  and  similar 
laws  for  the  registration  of  land  titles,  the  official  examina- 
tion of  the  title,  substituted  for  the  unofficial  examination 
otherwise  obtaining,  is  given  conclusive  effect,  in  favor  of  the 
owner ;  his  title  is  given  the  permanent  character  of  an  official 
determination,  equivalent  to  a  decree  of  court.  All  known 
and  unknown  adverse  interests,  under  proper  legal  notice,  are 
determined  and,  as  all  subsequent  proceedings,  acts  and  con- 
veyances effecting  the  title  are  noted  by  the  registrar,  upon 
the  certificate  of  record,  the  condition  of  the  title  can  be  more 
speedily  ascertained  and  the  indefeasible  character  of  the 
certificate  of  title  issued  by  the  States,  guarantees  the  land- 
owner greater  security,  at  a  less  cost,  than  under  the  system 
of  registering  only  deeds,  and  other  evidences  of  title  or 
claim,  regardless  of  other  objections  that  may  be  urged 
against  a  system  of  title  registration.^^ 

§  656.  Constitutionality  of  Statutes  conceriiing. —  Since  the 
determination  of  the  title,  on  the  part  of  the  examining  officer, 
under  the  Torrens  Act,  to  carry  any  peculiar  benefits  as  a 
result  of  the  investigation,  must  be  given  the  character  of 
indefeasibility,  it  may  well  be  doubted  if  such  power,  in  the 
determination  of  adverse  claims  end  property  rights,  under 

"  Record  of  Title  to  Land,  by  H.  W.  Chaplin,  6  Harv.  L.  Rev.  302  ; 
reply  to  criticism  of  Torrens'  System,  7  Harv.  L.  Rev.  24;  Australian 
System  of  Land  Transfers,  32  Cent.,  L.  J.  160. 
958 


CH.    XXV.]  REGISTRATION   OF   TITLES.  §    6C3 

the  system  of  organic  law  such  as  obtains  generally  in  the 
United  States,  can  be  legally  exercised  by  other  than  a  regu- 
larly constituted  court,  acting  in  pursuance  of  "due  process 
of  law. ' '  To  give  such  power  to  other  than  a  judicial  officer, 
clothed  with  the  power  of  the  judgment  seat,  would  seem  to 
be  counter  to  the  direct  mandate  of  the  United  States  Con- 
stitution and  the  constitutions  of  the  different  States.^* 

This  identical  question  was  passed  upon  by  the  Supreme 
Court  of  Illinois,  and  the  first  Title  Registration  Act  of  that 
State  was  held  unconstitutional  because  it  conferred  judicial 
powers  upon  the  registrar.^'  This  difficulty  was  obviated  in 
the  second  act,  passed  the  year  following,  by  a  provision  for 
the  determination  of  the  title  by  a  decree  in  equity,  by  a 
legally  constituted  court,  after  legal  notice,  which  decree, 
instead  of  the  non-judicial  finding  of  the  registrar,  was  made 
the  basis  of  the  initial  registration.  The  act  last  referred  to 
is  the  present  "Torrens  Law"  in  effect  in  Illinois,  and  the 
Supreme  Court  of  the  State  has  upheld  its  constitutionality,^* 
as  did  the  Supreme  Court  of  Massachusetts,  in  the  considera- 
tion of  a  similar  act.^°     As  before  observed,^"  the  power  of  the 

12  "  Chapter  237,  T^ws  Minn.  1901,  providing  for  the  Torrens  System 
of  registering  land  titles,  is  not  unconstitutional  in  that  it  is  special 
legislation;  nor  in  that  it  deprives  the  owner  of  his  interest  in  land 
without  due  process  of  law;  nor  in  that  it  violates  article  3  of  the  con- 
stitution, vesting  the  powers  of  government  in  three  distinct  depart- 
ments; nor  in  that  examiners  of  title  provided  for  by  the  act  are  ap- 
pointed by  the  court,  and  not  elected  as  county  officers  are  required  to  be 
by  Sec.  4,  Art.  11,  Const."    State  v.  Westfall  (1902),  89  N.  W.  Rep.  175. 

13  People  V.  Chase,  165  111.  526.  See,  also,  for  opinion  holding  Ohio 
Act  invalid,  State  v.  Guilbert,  56  Ohio  St.  575. 

i<  People  V.  Simon,  176  111.  165,  Sheldon  Land  Reg.,  p.  2. 

15  Tyler  v.  Judges,  175  Mass.  71. 

10  Ante,  Sec.  19.  "  In  the  case  of  State  V.  Guilbert,  56  Ohio  St.  575, 
47  N.  E.  Rep.  551,  60  Am.  St.  Rep.  756,  the  attempt  at  transplanting 
the  Torrens  System  into  Ohio  soil  was  rudely  nipped  in  the  bud,  the 
court  assigning  as  its  principal  grounds  of  objection  that  the  act  failed 
to  provide  for  proper  service  upon  adverse  claimants  residing  within 
the  jurisdiction,  and  that  it  attempted  to  confor  judicial  power  upon  a 
county  recorder,  a  purely  ministerial  officer.     It  seems  from  the  view 

959 


§    656  REGISTRATION   OF   TITLES.  [PART   III. 

State  to  regulate  the  terms  upon  which  real  property  within 
its  borders  shall  be  held,  as  well  as  the  means  of  acquisition 
and  transfer,  is  undoubted,"  and  hence  it  has  been  argued 
that  no  constitutional  objection  could  be  urged  in  the  United 
States  against  compulsory  registration  of  titles,  before  per- 
mitting a  sale*  or  transmission  by  devise  or  descent."  But 
any  limitation  upon  the  power  of  alienation  would  certainly 
be  counter  to  the  settled  legislative  policy  in  the  United 
States  and  the  spirit  of  the  age,  which  brooks  no  restraint 
upon  the  power  of  the  citizen  to  alienate  his  property,  and 
although  perhaps  not  opposed  to  the  strict  letter  of  any  con- 
stitutional provision,  it  is  doubtful  if  such  an  enlargement  of 

which  the  court  takes  of  the  provision  for  notice,  only  those  parties 
named  by  the  applicant  as  adverse  were  to  be  served,  and  these,  if  they 
lived  without  the  county,  were  to  be  served  by  mail.  The  court  said  on 
this  point:  'One  known  to  claim  the  title  in  fee-simple  adversely  to 
the  applicant  need  not  be  named,  though  his  place  of  residence  may 
be  within  the  county  and  known.  ...  Is  this  such  notice  as  the 
law  of  the  land  requires  to  be  given  to  persons  claiming  interests  in 
property  of  the  pendency  of  a  judicial  proceeding,  in  which  such  inter- 
ests are  to  be  the  subject  of  adjudication,  and  in  which,  unless  they  ap- 
pear, a  decree  will  be  entered  precluding  their  further  assertion.'  The 
court  holds  in  this  connection  that  the  proceeding  for  initial  registra- 
tion partakes  much  of  a  bill  to  quiet  title,  but  that  it  is  in  no  sense 
an  action  m  rem,  giving  the  legislature  the  right  to  prescribe  such  no- 
tice as  is  appropriate  to  such  proceedings.  After  considering  the  act 
in  these  particulars  the  court  launches  into  a  general  diatribe  of  its 
other  provisions.  The  provision  for  an  assurance  fund  is  handled  very 
gingerly.  '  It  is  not  likely,'  the  court  says,  '  that  the  legislature  has 
thought  itself  authorized  to  provide  for  making  whole  those  who  have 
been  defeated  in  judicial  proceedings  of  an  adversary  character,  involv- 
ing only  private  rights,  and  conducted  according  to  the  law  of  the  land. 
The  terms  of  these  sections  of  the  act  show  that  the  fund  is  to  be 
raised  to  indemnify  those  whose  lands  have  been  wrongfully  wrested 
from  them  without  due  process  of  law.  When  the  provisions  of  the 
Constitution  are  applied  to  this  penitential  scheme,  it  at  once  becomes 
apparent  that  it  is  both  inadequate  and  forbidden.' "  54  Cent.  L.  J. 
294. 

17  This  observation  is  quoted  from  the  text  by  the  Sup.  Ct.  of  Illinois, 
in  People  v.  Simon,  176  III.  176. 

18  Sheldon  Land.  Reg.,  p.  82. 

960 


CII.    XXV.]  REGISTRATION    OF   TITLES.  §    658 

the  title  registration  law,  in  the  United  States,  would  popu- 
larize the  legislation.^" 

§  657.  Registrars  and  examiners  provided. —  Under  the  Illi- 
nois and  similar  title  registration  acts,  the  county  recorders, 
or  other  custodians  of  the  records,  are  made  ex-officio  regis- 
trars of  land  titles,  on  account  of  their  free  access  to  the 
records  of  conveyances  and,  generally,  such  officers  are  not 
permitted  to  sell  or  otherwise  dispose  of  their  official  informa- 
tion as  to  land  titles,  coming  under  their  observation.  They 
are  generally. required  to  give  bond  for  the  faithful  discharge 
of  their  own  and  their  deputies'  duties,  as  registrars  of  titles 
and  are  disqualified  from  practicing  law,  or  from  being  di- 
rectly or  indirectly  associated  with  a  practicing  lawyer,  while 
acting  as  registrar  of  land  titles.-"  The  appointment,  by  the 
registrar  or  other  authority,  of  one  or  more  competent  law- 
yers, as  title  examiners,  is  provided  for,  who,  like  the  regis- 
trar, is  also  a  bonded  officer  and,  on  grounds  of  public  policy, 
is  prevented  by  law  from  practicing  his  profession  or  profit- 
ing in  any  manner  from  his  official  information.^^ 

■  §  658.  How  land  is  brought  under  statutes. —  Generally  the 
owner  of  any  estate  or  interest  in  land,  whether  legal  or 
equitable,  may  apply  under  the  Torrens  System  for  the  regis- 
tration of  title  to  any  land  situated  in  the  county,  where  the 
application  is  made.  The  application  may  be  made  either  in 
person  or  by  counsel,  a  corporation  applying  by  its  agent  and 
an  infant  or  other  person  under  disability,  by  his  guardian. 

10  Although  such  an  encroachment  might  run  the  gamut  of  the  courts, 
it  might  condemn  an  otherwise  beneficent  law  in  framing  of  public 
opinion.  The  only  legal  way  to  meet  the  just  constitutional  objection 
urged  to  the  Ohio  and  first  Illinois  statutes,  against  conferring  judicial 
functions  on  non-judicial  officers,  is  to  establish  a  regular  court  of  land 
registration,  such  as  is  provided  in  the  Mnsaachusetts  act. 

20  Kurd's  Rev.  St.  111.  Ch.  115,  Sees.  21,  25;  Gen.  L^ws  Minn.  1901, 
p.  348,  e.  237. 

21  Ante,  idem. 

61  OGl 


§    658  REGISTRATION   OF   TITLES.  [PART   III. 

Usually,  the  fee-simple  title  is  first  required  to  be  registered 
It  is  no  objection  to  the  registration  of  the  fee  that  a  lesser 
title  or  estate  may  be  outstanding,  if  admitted  by  the  owner, 
but  the  fact  is  only  noted  on  the  certificate  of  title.  But  if 
there  are  adverse  claims  or  interests,  disputed  by  the  applicant^ 
these  are  required  to  be  contested  and  the  parties  brought  in 
and  the  claims  adjudicated  before  initial  registration  is  had.^^ 
No  title  based  on  a  tax  deed  or  similar  assessment  is  admitted 
to  registration  without  bringing  in  the  holder  of  the  patent 
title  or  those  claiming  under  him,  and  no  tax  title  is  entitled 
to  be  registered  until  an  adjudication  that  it  is  superior  to 
the  patent  title,  by  adverse  possession  for  the  statutory  period, 
or  other  facts  showing  a  superior  title  in  the  claimant.  ^^    The 

22  Kurd's  Rev;  St.  111.  Ch.  115,  Sec.  9;  Sheldon  Land  Reg.,  p.  2L 
"  It  is  not  the  duty  of  the  court,  when  making  an  order  for  the  issu- 
ance of  summons  in  proceedings  under  the  Torrens  act  (Laws  Minn. 
1901,  p.  348,  c.  237),  to  investigate  and  name  defendants,  or  prescribe 
who  shall  be  named  as  defendants."  Dewey  V.  Kimball,  95  N.  W.  Rep. 
317,  rehearing  in  part  granted.  Id.  (Minn.  1903),  895.  "In  proceed- 
ings under  the  Torrens  act  (Laws  Minn.  1901,  p.  348,  c.  237),  the 
applicant  cannot,  in  taking  the  steps  provided  for  by  Sections  18,  19, 
relating  to  the  issuance  of  summons  and  the  necessary  parties  defend- 
ant, ignore  the  report  and  advice  of  the  examiner  as  to  what  parties  or 
persons  should  be  made  defendants."  Dewey  v.  Kimball,  95  N.  W.  Rep. 
317.  "The  provision  in  Torrens  act  (Laws  Minn.  1901,  p.  353,  c.  237), 
Sec.  10,  in  respect  to  who  shall  be  defendants  in  the  procedure,  is 
mandatory  and  a  failure  to  follow  the  advice  and  report  of  the  exam- 
iner amounts  to  a  failure  to  observe  this  provision,  and  renders  any 
judgment  thereafter  entered  inA'alid  and  void  for  want  of  jurisdiction 
over  the  person  or  party  named."     Ante,  idem. 

23 "  In  a  proceeding  for  the  registration  of  title,  the  burden  is  on 
defendant  to  show  the  validity  of  tax  deeds  under  which  defendant 
claimed  an  interest  in  the  property."  Glos.  v.  Talcott  (111.  1904),  72 
N.  E.  Rep.  707,  213  111.  81.  "  Evidence  that  plaintiff  went  into  actual 
possession  of  premises,  the  title  to  which  she  sought  to  register,  under 
claim  and  color  of  title,  made  in  good  faith,  in  the  year  1891,  and  con- 
tinued in  possession  to  the  filing  of  her  application  on  June  3,  1901,  with 
proof  of  the  payment  of  taxes  for  each  year  from  1891  to  1901,  in  the 
absence  of  other  evidence,  was  sufficient  proof  of  title  in  fee."  Glos  V. 
Mickow  (111.  1904),  71  N.  E.  Rep.  830,  211  111.  117.  "Where,  in  a  pro- 
ceeding for  the  registration  of  plaintiff's  title  to  certain  real  estate, 
962 


CH.    XXV.]  REGISTRATION    OF   TITLES.  |    659 

form  and  contents  of  the  application  for  registration  differs, 
under  the  various  statutes,  which  should  be  consulted  in  each 
instance  in  the  preparation  of  an  application  for  registration. 
It  is  essential,  however, .  that  the  application  should  contain 
the  names  of  all  parties  claiming  adverse  interests  or  claims, 
desired  to  be  extinguished  in  the  initial  registration,  for  all 
such  to  be  legally  effected  by  the  decree  effecting  their  inter- 
ests, must  be  duly  notified,  as  in  the  service  of  other  character 
of  legal  process.^* 

§  659.  Proceeding^  before  examiner. —  Upon  the  filing  of  the 
application  for  registration  the  same  is  usually  referred  to 
the  examiner,  who  proceeds  to  examine  into  the  title  and  to 
investigate  the  truth  of  the  facts  alleged  in  the  application. 
If  the  land  is  occupied,  the  nature  and  right  to  the  possession 
is  inquired  into  and  a  full  report  of  his  proceeding  is  trans- 
mitted to  the  court.^'  He  is  usually  given  power  to  compel 
the  attendance  of  witnesses,  and  to  administer  oaths  and  ex- 
amine witnesses;  his  duties  are  similar  to  those  of  a  referee 
in  chancery  and  the  proceedings  before  the  examiner,  in 
Illinois,  are  so  far  held  to  be  under  the  direction  pf  the  court 

plaintiff  produced  evidence  establishing  title  in  him,  the  burden  was  on 
a  party  claiming  title  under  a  tax  deed  to  establish  the  validity  of 
such  deed."    Glos  v.  Hoban,  72  N.  E.  Rep.  1,  212  111.  222. 

2*  "  Act  May  1,  1897,  establishing  the  Torrens  System  of  land  titles, 
at  Section  13,  prescribes  the  form  in  which  an  application  for  the  regis- 
tration of  a  fee  simple  title  shall  set  out  the  interest  to  adverse  claim- 
ants. Section  15  Provides  that  the  court  may  quiet  titles  in  such  pro- 
ceedings. Held,  that  an  application  in  the  prescribed  form  was  a  suffi- 
cient pleading  to  put  in  issue  the  validity  of  an  adverse  tax  title."  Gage 
t?.  Consumers'  Electric  Light  Co.,  64  N.  E.  Rep.  653,  194  111.  30.  "  In 
publishing  the  summons  provided  for  in  Laws  Minn.  1901,  p.  384,  c. 
237,  known  as  the  '  Torrens  Act,'  a  compliance  with  the  provisions  of 
Sec.  20,  p.  353,  of  such  act,  providing  that  summons  shall  be  served 
upon  nonresidents  and  unknown  defendants  by  publication  in  the  news- 
papers, is  sufficient,  without  following  the  provisions  of  Gen.  St.  1894, 
Sec.  5204."  Dewey  v.  Kimball  (Minn.  1903),  96  N.  W.  Rep.  704;  Same 
V.  National  Bond  &  Security  Co.,  Id. 

2»  Kurd's  Rev.  St.  111.  Oh.  115,  Sec.  18. 

963 


§    6G0  REGISTRATION    OF   TITLES.  [PART   lU. 

as  to  be,  in  fact,  proceedings  in  chancery.^'  The  same  rules 
and  principles  of  law  that  obtain  in  the  trial  of  civil  cases,  so 
far  as  appropriate,  apply  to  proceedings  in  determining  titles 
under  the  Torrens  Act,'^^  The  examiner  investigates  each 
title  independently  of  the  evidence  submitted  by  the  appli- 
cant, both  as  to  record  matters  and  facts  outside  the  record. 
If  the  title  is  unfit  for  registration  the  application  is  dis- 
missed without  prejudice,  but  if  the  examiner  finds  a  mar- 
ketable title  in  the  applicant,  his  report  to  the  court  so  states 
and  a  decree  is  accordingly  rendered,  establishing,  for  all 
time,  the  title  of  the  applicant.^® 

§  660.  Jurisdiction  and  power  of  the  court. —  To  carry  out 
the  objects  of  the  law  it  is  essential  that  the  court  should  have 
power  to  inquire  into  the  condition  of  the  title  and  of  any 
interest  in  the  land,  or  any  lien  or  incumbrance  thereon  and  to 
make  all  such  orders  and  judgments  as  may  be  necessary  to 
determine,  establish  and  declare  the  title  or  interest,  whether 
legal  or  equitable,  as  against  all  persons,  and  to  consider  all 
liens  and  incumbrances  and  to  declare  the  order  of  same  and 
to  remove  clouds  from  title  and  perform  such  other  chancery 
powers  as  are  essential  to  the  full  consideration  and  determi- 
nation of  the  title  submitted  to  it  for  adjudication.^^  The 
court  is  generally  authorized  to  find  and  decree  in  whom 

28  People  V.  Simon,  176  111.  165;  Rogers  v.  Taylor,  144  111.  652;  Shel- 
don Lang  Reg.,  p.  27. 

27  "  In  proceedings  under  Torrens  act  for  land  transferred,  all  rules 
and  principles  of  law  applicable  to  rights  in  real  property  and  rules  of 
practice  with  reference  to  the  trial  of  civil  actions  in  so  far  as  appro- 
priate, or  not  provided,  for,   should  be  followed."     Owsley  V.  Johnson 

(Minn.  1905),  103  N.  W.  Rep.  903.  "Objections  to  the  admission  of 
evidence  on  a  hearing  before  an  examiner  of  titles  for  registration  can- 
not be  reviewed  on  appeal  unless  incorporated  in  exceptions  to  the  mas- 
ter's report  and  renewed  in  the  trial  court."  Glos  v.  Hoban  (111.  1904), 
72  N.  E.  Rep.  1,  212  111.  222. 

28  People  V.  Simon,  176  111.  165;  Sheldon  Land  Reg.,  pp.  27,  28. 

29  See  Hurd's  Rev.  St.  111.  Ch.  115,  Sec.  15.  "Gen.  Laws  Minn.  1901, 
p.  348,  c.  237,  known  as  the  'Torrens  Act,'  was  intended  to  provide  a 

964 


CH.    XXV.]  REGISTRATION   OF   TITLES.  §    661 

the  title  to  or  any  interest  in  the  land  is  vested;  to  remove 
clouds  from  the  title  and  to  determine  the  validity  and  order 
of  incumbrances;  to  order  the  registrar  to  record  such  title 
or  interest  and  the  liens  or  claims  to  which  it  is  subject  and 
to  make  such  further  orders,  as  may  be  according  to  the 
equities  of  the  parties  and  the  condition  of  the  record  shall 
justify.^"  This  decree  is  the  basis  of  the  initial  registration 
of  title,  and  all  persons  holding  adverse  claims  or  interests 
are  barred,  after  a  given  time,  under  most  statutes,  if  they 
fail  to  give  notice  or  assert  their  claims.'^ 

§  661.  Effect  of  registration. —  As  a  general  rule,  to  give 
proper  force  to  the  registration  of  a  title,  under  the  Torrens 
Law,  the  certificate  of  title  relates  back  to  and  takes  effect  as 
of  the  date  of  the  decree ;  ^^  all  subsequent  liens  are  entered 
subject  to  the  decree  and  before  the  expiration  of  the  period 
for  contest  of  the  adverse  title  the  certificate  of  registration  is 
taken  as  prima  facie  evidence  of  a  full  compliance  with  the 
law  and  that  the  title  of  the  owner  is  as  certified  to  and  after 

speedy  method  of  determining  rights  in  real  property,  and  to  authorize 
the  court  to  determine  controversies  respecting  title,  and  by  decree  de- 
clare the  title,  rights,  and  interests  of  interested  parties."  Reed  r. 
Siddall,  102  N.  W.  Rep.  453.  "Under  Gen.  Laws  Minn.  1901.  p.  .348. 
c.  237,  known  as  the  *  Torrens  Act,'  the  court  has  no  power  to  foreclo.se 
mechanics'  liens,  but  only  to  determine  the  existence  and  validity 
thereof."  Reed  V.  Siddall  (Minn.  1905),  102  N.  W.  Rep.  453.  "In 
proceedings  under  the  Torrens  act  (Gen.  Laws.  1901,  p.  348,  c.  237).  to 
register  title,  the  burden  of  proof  is  on  the  party  asserting  a  mechanics* 
lien  to  prove  that  at  the  time  of  the  trial  the  lien  was  a  valid  one.'* 
Reed  v.  Siddall    (Minn.  1905),  102  N.  W.  Rep.  453, 

aoHurd's  Rev.  St.  111.  Ch.  115,  Sec.  25;  Sheldon  Land  Reg.,  p.  32; 
Reed  v.  Siddall  (Minn.  1905),  102  N.  W.  Rep.  453. 

31  Kurd's  Rev.  St.  111.  Ch.  115,  Sees.  27,  28.  "Where  the  examiner 
in  a  petition  under  the  Torrens  Law  suggests  that  a  certain  pnrly 
named  be  made  a  defendant,  but  the  suggestion  is  not  observed,  the 
judgment  thereupon  entered  is  invalid  and  void  as  against  such  party., 
and  all  persons  in  privity  with  him,  not  defendants  in  the  proceeding.'* 
Judgment,  95  N.  W.  Rep.  317,  affirmed  on  rehearing.  Dewey  t".  Kimball, 
96  N.  W.  Rep.  704;  Same  v.  National  Bond  &  Security  Co.,  Id. 

82Hurd'8  Rev.  St.  111.  Ch.  115,  Sec.  38. 

965 


§    662  REGISTRATION   OF   TITLES.  [PART   III. 

the  expiration  of  such  period  the  registrar's  certificate  is  con- 
clusive evidence  of  these  facts.^^ 

The  owner  holds  his  title  subject  to  the  liens,  estates  or 
incumbrances  noted  in  the  certificate  of  title  and  subject  to 
other  possessions,  private  and  public  easements,  tax  assess- 
ments and  contests  as  may  be  filed  within  the  period  limited 
for  such  claims,^*  but  otherwise  the  certificate  of  registra- 
tion is  free  from  other  claims. 

After  registration  of  a  title  no  possession,  for  however  long 
a  period,  unless  noted  on  the  certificate  of  title,  can  ripen 
into  an  adverse  claim,^"*  and  all  unregistered  trusts,  claims 
or  liens  are  absolutely,  void  as  against  a  subsequent  purchaser 
of  the  land,'®  and  thus  the  principle  of  immunity  is  afforded 
the  owner  and  purchaser,  perhaps  to  a  fuller  extent  than  by 
any  other  method  known  to  the  law.  The  registration  im- 
plies an  agreement  or  covenant  running  with  the  land,  that 
the  same  shall  be  subject  to  the  terms  of  the  law,  in  every 
respect,  and  "all  subsequent  dealings  with  the  land  are  im- 
pliedly subject  to  its  terms  and  thus  full  effect  is  given  to  the 
inviolability  of  the  title,  under  the  law. 

§  662.  Conveyances  under  the  Torrens  law. —  Upon  the  con- 
veyance, in  regular  form,  of  any  estate,  interest  or  portion 
of  a  registered  tract  of  land,  by  the  owner,  his  duplicate  cer- 
tificate is  surrendered  to  the  registrar,  who  proceeds  to  cancel 
it  and  to  issue  to  the  grantee  of  the  tract  a  new  certificate  in 
proper  form,  with  any  additions  to  the  title  or  chain  of  con- 
veyances or  incumbrances  noted  thereon.^'  If  only  a  part 
of  his  land  is  conveyed  by  the  owner,  a  new  certificate  is 

33  Ante,  Idem,  Sec.  39. 

3^  Idem,  Sec.  40. 

35  Kurd's  Rev.  St.  111.  Ch.  115,  Sec.  41. 

30  Ante,  Idem,  Sec.  42;  Sheldon  Land  Reg.,  p.  41;  Sheldon  Land  Reg., 
p.  42.  The  registration  of  the  owner's  title  is,  in  effect,  a  summary 
proceeding  to  quiet  title.  2  Tiffany  Real  Prop.  Sec.  489,  p.  1103,  54 
Cent.  L.  J.   293. 

STHurd's  Rev.  St.  111.  Ch.  115,  Sec.  47. 
966 


CH.    XXV.]  REGISTRATION   OF   TITLES.  §    662 

given  him  by  the  registrar  for  such  portion  not  conveyed.^* 
The  new  certificates  are  but  a  continuation  of  the  original 
registration  and  from  the  date  of  delivery  to  him  of  his  regis- 
tration certificate,  the  purchaser  has  all  the  muniments  of 
title  for  the  land  granted  to  him  that  the  original  registered 
owner  had  and  hence  the  same  kind  of  a  title.^^  The  con- 
veyance in  common  form  is  generally  the  only  authority  of 
the  registrar  to  make  a  transfer  of  a  title,  or  a  new  certifi- 
cate to  a  purchaser;  all  conveyances  affecting  the  title  are 
noted  filed  as  of  the  exact  time  received  and  same  are  re- 
tained in  the  office  of  the  registrar  together  with  the  address 
of  all  persons  named  therein,  for  future  reference.^"  Gen- 
erally, however,  no  transfer  of  the  title,  or  of  any  estate 
therein  will  be  made  until  the  registrar  shall  be  satisfied  th.it 
no  tax  assessment,  lien  or  other  claim  by  the  State  or  munici- 
pality exists,  and  that  the  dower  right  or  homestead,  if  the 
tract  is  subject  to  such  claims,  have  been  released.^^  And 
practically  the  same  rules  as  obtain  in  the  notation  of  convey- 
ances of  the  fee  are  followed  in  the  registration  of  mortgages 

88  Ante,  idem.  Sec.  48. 

89  Sheldon's  Land  Reg.,  p.  43. 

40  Kurd's  Rev.  St.  111.  Ch.  115,  Sees.  50,  51,  52,  53,  54. 

41  Ante,  idem,  Sec.  55.  "Tax  liens  held  by  the  State  are  not  interests 
in  and  claims  upon  the  land  upon  which  they  are  a  lien,  within  MinTio- 
sota  Laws  1903,  p.  341,  c.  234,  Sec.  6,  relating  to  the  registration  of 
title  under  the  Torrens  act,  and  providing  that  whenever  the  State  of 
Minnesota  has  any  interest,  in  the  opinion  of  the  examiner,  he  shall 
state  the  interest  in  his  report,  and  where  he  reports  that  the  State  has 
some  interest  it  shall  be  joined  as  a  party."  National  Bond  &  Security 
Co.  V.  Daskam  (Minn.  1903),  97  N.  W.  Rep.  458.  "Under  Rev.  Laws 
Mass.,  c.  128,  Sec.  31,  relative  to  proceedings  for  the  registration  of 
land  titles,  providing  that  if  the  land  borders  on  a  river  or  an  arm  of 
the  sea,  or  if  it  otherwise  appears  that  the  commonwealth  has  a  claim 
adverse  to  that  of  the  applicant,  notice  shall  be  given  to  the  Attorney 
General,  the  commonwealth  is  a  proper  party  in  proceedings  to  register 
the  title  to  land  over  which  there  is  claimed  to  be  a  public  landing 
place,  and,  under  Section  13  of  the  act,  it  may  appeal  to  the  superior 
court  from  an  adverse  decision."  McQuesten  v.  Attorney  General 
(Mass.  1905),  72  N.  E.  Rep.  965. 

967 


§    663  REGISTRATION    OF   TITLES.  fPART   III. 

or  other  charges,  except  that  the  grantor's  certificate  is  not 
cancelled;  assignments  or  releases  or  satisfactions  are  also 
noted  by  the  registrar  in  the  same  way  and  incumbrances  are 
enforced  or  mortgages  foreclosed  in  all  respects  upon  regis- 
tered land  the  same  as  Upon  land  not  brought  under  the 
registration  law.*- 

If  the  conveyance  is  one  in  trust,  or  upon  a  condition  or 
limitation,  this  is  noted  by  the  registrar  and  no  subsequent 
conveyance  will  be  noted,  unless  on  the  decree  of  a  court,  or 
the  opinion  of  an  examiner  that  the  conveyance  is  in  further- 
ance of  the  trust,  condition  or  limitation,  a  safeguard  which 
it  is  claimed  places  cestui  que  trusts  in  a  better  position  than 
they  occupy  under  the  ordinary  systems.**^ 

§  663.  Death  of  owner  —  Transmission  of  land. —  Upon  the 
death  of  the  owner  of  land,  registered  under  the  Torrens  Law, 
the  land,  or  any  estate  or  interest  therein  belonging  to  the 
deceased,  at  his  death,  goes  to  his  personal  representatives,  in 
like  manner  as  personal  estate,  whether  the  owner  dies  intes- 
tate or  leaves  a  will.  The  land  is  divided  in  the  same  manner 
as  may  be  provided  by  law  for  the  descent  of  real  estate,  or  as 
may  be  provided  by  will,  but  it  is  otherwise  subject  to  the  same 
rules  of  administration  as  if  it  were  personal  property.** 
Proof  of  heirship  is  made  in  the  court  of  probate  jurisdiction ; 
the  executor  or  administrator  is  ordered  to  make  conveyances 
according  to  the  respective  interests  of  the  several  heirs;  the 
decedent's  certificate  is  cancelled,  all  questions  concerning  the 
division  and  descent  of  the  land  are  speedily  settled  and  new 
certificates  are  issued  to  the  parties  found  to  be  entitled 
thereto.*^  Before  distribution  of  undevised  registered  land, 
the  administrator  is  required  to  file  with  the  registrar  a  certi- 


42Hurd's  Rev.  St.  111.  Ch.  115,  Sees.  63,  64,  65,  66;  Sheldon  Land  Reg. 
pp.  48,  49. 

<3Reg.  of  Title   (British  Col.)    Blue  Book  1881;   Prussian  Legislation 
on  Reg.  of  Title,  Dr.  Fischer,  18!)2;  Sheldon  Land  Reg.  p.  51. 

"Kurd's  Rev.  St.  111.  Ch.  115,  Sec.  70,  et  sub. 

45  Sheldon  Land  Reg.  p.  52. 
968 


CH.   XXV.]  REGISTRATION   OP   TITLES.  §   665 

fied  copy  of  the  proof  of  heirship  made  in  the  court  exercising- 
probate  jurisdiction  and  this  proof  is  afterwards  taken  as 
conclusive  evidence  that  the  persons  named  in  the  certificate 
are  the  only  heirs  of  the  deceased  owner.*®  The  administrator 
is  subject  to  the  same  law  in  the  administration  of  the  estate 
as  may  be  provided  in  the  administration  of  personal  estates, 
in  the  State  or  county  where  the  deceased  resided;  the  land 
may  be  ordered  sold  before  distribution,  partitioned  in  kind, 
or  other  division  or  settlement  had,  as  will  best  subserve  the 
interests  of  the  estate,  under  the  orders  of  the  court.*' 

§  664.  Judgments,  liens  and  assessments  against  land. —  All 
judgments,  liens,  attachments  and  assessments  against  regis- 
tered land,  under  the  Torrens  Law,  are  required  to  be  notecl 
on  the  certificate,  by  copies  filed  with  the  registrar  and  until 
such  charges  are  filed  or  noted  on  the  certificate,  they  are  held 
not  to  affect  the  title  to  the  land.*^ 

All  assignees,  receivers  or  masters  in  chancery,  before  tak- 
ing possession  of  registered  land,  are  required  to  furnish  a 
certified  copy  of  their  authority  to  the  registrar.*^  Tax  as- 
sessments and  the  certificates  of  foreclosure  of  the  lien,  as 
well  as  lis  pendens,  judgments,  decrees  and  sheriff's  sales  are 
all  required  to  be  noted  on  the  certificate  of  title,  in  order  to 
affect  the  land,  and  all  such  liens  and  charges,  as  well  as  ad- 
verse claims  and  proceedings,  unless  so  noted,  are  held  not  to 
affec*  the  title."" 

§  665.  Relief  against  arbitrary  power  of  registrar. —  Under 
the  Torrens  Law  of  Illinois  the  citizen  and  landowner  is  safe- 
guarded against  the  arbitrary  power  of  the  registrar,  by  a 
provision  that  for  a  failure  of  the  registrar  or  his  deputy  to 
perform  any  duty  enjoined  upon  him  by  law,  a  court  of  equity 

4eHurd'8  Rev.  St.  111.  Ch.  115,  Sec.  76. 
*i  Ante,  idem,  Sees.  77,  78,  79. 
"Kurd's  Rev.  St.  111.  Ch.  115,  Sec.  84. 
*«Hurd's  Rev.  St.  111.  Ch.   115,  Sec.  80. 
60  Ante,  idem,  Sees.  82,  83. 

969 


§    666  REGISTRATION    OF   TITLES.  [PART   III. 

is  authorized,  by  summary  proceeding,  to  investigate  and 
make  the  proper  orders  in  the  premises  and  on  the  filing  of 
such  order,  or  a  certified  copy,  with  the  regiscrar,  he  is  re- 
quired to  conform  the  certificate  to  the  order  of  the  court.^^ 
This  is  a  very  important  provision,  which  ought  to  be  incor- 
porated in  all  land  registration  acts,  for  it  would  prevent  an 
abuse  of  power  or  omission  of  duty  by  an  officer  entrusted 
with  important  functions  and  answer  the  criticisms  frequent- 
ly urged  against  such  legislation. 

§  666.  Indemnity  and  procedure  to  recover. —  Under  some 
of  the  statutes  providing  for  title  registration,  an  indemnity 
fund,  arising  from  a  small  per  cent,  of  the  value  of  the  land, 
at  the  time  of  initial  registration,  and  again  on  the  entry  of 
a  new  certificate,  on  the  death  of  the  owner,  is  provided  for. 
as  a  protection  to  the  owner,  against  the  acts  of  the  registrars 
or  examiners  or  for  any  loss  occasioned  by  bringing  his  land 
under  the  act,  in  cases  M^here  his  land  is  lost  to  him,  without 
his  own  fault  or  neglect.*^ 

Under  the  Illinois  statute,  if  the  loss  results  from  the  neg- 
lect or  wrongful  act  of  the  registrar  or  examiner  alone,  the 
custodian  of  the  fund  is  alone  the  proper  party  defendant; 
but  if  the  loss  is  occasioned  by  the  act  of  some  third  person 
he  must  also  be  joined  as  defendant  and  an  effort  first  made 
to  realize  the  loss  sustained  from  such  wrongdoer  before  re- 
course to  the  indemnity  fund.''' 

The  time  for  proceedings  to  recover  for  loss  sustained  to  a 
registered  title,  however,  is  limited,  under  the  Illinois  stat- 
ute, and  severe  penalties  are  provided  for  the  protection  of  the 
indemnity  fund  from  fraudulent  claims  and  for  fraudulent 
acts,  under  the  statute.'^* 

siHurd's  Rev.  St.  111.  Ch.   115,  Sec.  93. 

52  This  is  the  Illinois  statute,  Hurd's  Rev.  St.  111.  Ch.   115,  Sees,  99, 
100. 
58  Ante,  idem,  Sees.  101,  102. 
5<  Hurd's  Rev.  St.  111.  Ch.  115,  Sees.  103,  104. 
970 


CH.    XXV.]  REGISTRATION   OF   TITLES.  §    667 

§  667.  Advantages  and  objections  to  title  regfistration. —  As 
the  legislature,  in  the  enactment  of  laws  that  are  not  prohib- 
ited by  organic  law,  as  an  independent  branch  of  Govern- 
ment, in  theory  at  least,  is  beyond  the  power  of  courts  or 
text-writers,  it  is  doubtful  if  any  material  advantage  can  be 
derived  from  a  discussion  of  such  legislation.  However,  as 
the  more  scientific  legislation  should  be  encouraged  than  the 
contrary,  there  is  perhaps  some  benefit  to  be  derived  from 
every  discussion  of  such  subjects.  Unquestionably  the  Tor- 
rens  Law  is  the  most  systematic  and  scientific  piece  of  legis- 
lation for  the  protection  of  the  rights  of  the  landowner  that 
English  law  has  known  for  many  generations.  The  system, 
in  all  its  provisions,  may  not  harmonize  with  American  in- 
stitutions or  constitutions,  and  modifications  may  be  neces- 
sary to  meet  the  conditions  in  this  country.  Under  our  con- 
stitutions no  arbitrary  judicial  functions  could  be  recognized 
in  any  officer  qualified  to  divest  rights  without  "due  process 
of  law. ' '  It  remains  to  be  seen  if  the  spirit  of  American  citi- 
zenship would  not  rebel  against  compulsory  registration, 
guaranteed,  as  it  is,  by  organic  law,  even  in  the  freedom  of 
religious  worship."     The  disturbance  of  the  settled  order  of 

85  The  Illinois  legislature,  in  1905,  passed  a  law  making  title  regis- 
tration compulsory,  on  the  death  of  the  owner.  The  constitutionality 
of  this  act  has  not  yet  been  passed  upon  by  the  supreme  court  of  the 
State.  "  The  one  apparent  defect  in  American  legislation  on  the  Tor- 
rens  System  is  the  absence  of  some  kind  of  provision  for  compulsory 
registration.  Under  acts  making  registration  optional  a  long  period 
necessarily  intervenes  before  the  system  can  be  brought  well  under 
way.  If  the  system  is  worth  having  at  all  it  should  be  compulsory. 
Such  is  the  law  in  England  and  the  German  Empire.  Under  the  Eng- 
lish act  registration  of  land  in  any  county  can  be  made  compulsory,  by 
order  in  council,  in  which  case  no  title  to  land  in  that  county  can  pass 
until  the  buyer  is  registered  as  the  proprietor  of  the  land.  Another 
method,  however,  is  to  require  the  registration  of  land  by  executors  or 
administrators,  before  land  can  legally  pass  from  the  estate  of  a  de- 
ceased person  either  by  devise  or  descent.  It  is  thought  that  in  popu- 
lous communities  this  latter  provision  is  to  be  preferred  for  the  reason 
that  to  compel  registration  of  all  land  at  one  time  would  unreasonably 
clog  the   registration  office   and   interfere  with  alienation.     Under  the 

971 


§    667  REGISTRATION   OF   TITLES.  [PART   III. 

things,  the  length  of  time  necessary  to  perfect  the  title,  by- 
registration,  and  the  invasion  of  customs  long  enjoyed  as 
vested  rights,  are  among  the  objections  to  the  adoption  of  the 
Torrens  System  generally.  But  as  all  reforms,  when  adopted, 
are  revolutionary  in  their  tendency,  an  otherwise  beneficial 
law  should  not  be  alone  condemned  because  it  is  new.  If 
such  policy  were  generally  to  prevail  all  progress  would 
inevitably  succumb  to  such  argument.  The  advantages  of 
the  Torrens  System  have  commended  it  in  the  States  and 
countries  that  have  tried  it,  and  they  are  perhaps  the  best 
qualified  to  judge  of  the  relative  merits  and  demerits  of  the 
system,  of  which  it  was  intended  to  give  but  a  general  outline 
in  this  chapter. 

latter  method,  however,  the  land  of  a  county  would  gradually  pass  from 
the  old  system  to  the  new,  with  the  expense  borne  by  those  upon  whom 
the  burden  would  be  the  lightest."    54  Cent.  Law  Jour.  296. 

972 


INDEX 


[The  references  are  io  sections.} 

ABANDONMENT  OF  TITLE,  510,  518. 
general  discussion,  516. 

of  title  by  adverse  possession,  517. 
by  surrender  of  deed,  518. 

ACCEPTANCE, 

of  deed,  when  presumed,  576. 

dedication  to  public,  441. 

trust  necessary,   378. 

rent  creates  a  tenancy  from  year  to  year,  166. 

ACCOUNTING, 

between  mortgagor  and  mortgagee,  267. 

ACCRETION  AND  ALLUVION, 
definition  >.r,  487,  488. 
in  whom  is  the  title  to,  487,  488. 

ACCUMULATION  OF  PROFITS, 
how  far  permissible,  399. 

ACKNOWLEDGMENT  OF  DEEDS, 
when  required,  574. 
requisites,  certificate  of,  574. 
certificate,  conclusive  of  what,  574. 
by  married  women,  574.  '       « 

ACQUISITION, 

title  by  original,  484,  518. 

ACT  OF  GOD. 

when  rent  is  discharged  by,  55. 

when  performance  of  condition  excused  by,  203. 

when  waste  by,  excusable,  55. 

ADULTERY. 

of  husband,  effect  upon  curtesy,  84 
of  wife,  effect  upon  dower,  98. 

973 


INDEX. 

[The  references  are  to  seotions.'] 

ADVANCEMENT, 

defined,  480. 

intention  of  donor  controls,  480. 

how  manifested  and  proved,  480. 

ADVERSE  POSSESSION, 
defined,  491. 
effect  upon  title,  491. 
dispossession  distinguished  from,  492. 
essentials  of,  493,  496. 
must  be  visible  or  notorious,  494,  495. 

distinct  and  exclusive,  496. 

hostile  and  adverse,  497. 
when  entry  was  lawful,  498. 
title  by,  how  defeated,  501. 

how  made  absolute,  502. 
nature  of  title  by,  491. 
when  it  begins,  491. 

AFFINITY, 

relation  of,  473. 

AGENT.     See  Attobnet. 

ALIEN, 

capacity  of,  to  acquire  real  property  by  descent,  483. 
by  purchase,  561. 

ALIENATION, 

power  of,  historical  outline,  22,  24. 
invariable  incident  to  a  fee,  33,  204. 
in  respect  to  estate  for  life,  204. 

estate  for  years,  139. 

estate  from  year  to  year,  164. 

tenancy  at  will,  164. 

mortgages,  see  assignment. 

trust  estates,  334,  373. 
effect  of,  by  husband  upon  dower,  97. 
when  wife  is  capable  of  making,  558. 
effect  of,  by  wife  upon  curtesy,  84,  558. 
of  joint-estates,  189.  593. 

ALTERATIONS  IN  DEEDS, 
effect  of,  554. 

legal  presumptions  as  to  time  when  made,  554. 
how  they  may  be  noted,  554. 
974 


INDEX. 

[The  references  are  to  sections.'] 
APPOINTMENT, 

See  Powers  of  Appointment. 

APPURTENANT, 
defined,  606. 
what  things  pass  as,  606. 

ASSIGNMENT, 
'    of  dower,  104,  107,  114,  115. 
executory  devise,  385. 
lease,  139. 
mortgage,  249,  251. 
rent,  with  and  without  reversion,  461. 
reversion,  292. 
vendor's  lien,  219. 

ATTESTATION, 

of  deeds,  when  necessary,  573. 

requisites  of,  573. 
of  wills,  633,  634. 

ATTORNEY, 

power  of,  to  make  deed,  569. 
by  married  women,  570. 
(See  Powers.) 

BARGAIN  AND  SALE,  542,  643. 
BASE  FEE,  36. 

BASTARDS, 

cannot  inherit  at  common  law,  482. 
statutory  changes  in  common  law,  482. 

BETTERMENTS,  500. 

BOUNDARIES, 

elements  of,  594. 

monuments,  natural  and  artificial,  595. 

artificial  monuments  in  United  States  surveys,  696. 

non-navigable  streams,  597. 

navigable  streams,  598. 

ponds  and  lakes,  600. 

highways,  601. 

walls,  trees,  fences,  etc.,  602. 

BRIDGES.    See  Franchises. 

BUILDINGS, 

included  in  lands,  2. 

975 


INDEX. 

[The  references  are  to  sections.} 

CANCELLATION, 
of  deed,  518. 
of  will,  645. 

CHARITABLE  USES, 
when  valid,  641. 
devise  to,  when  valid,  641. 

CHILD, 

birth  of,  requisite  to  curtesy,  95. 
illegitimate,  cannot  inherit,  when,  482. 
in  ^ntre  sa  mdre,  when  considered  as  born,  481. 
posthumous,  can  now  inherit,  481. 

CODICIL.    See  Devise. 

COMMON, 

rights  of,  424,  426. 

CONDITION, 

in  conveyances,  611,  627. 

in  leases,  148. 

in  devises,  G51. 

«state  upon,  201,  211. 

express  or  implied,  201. 

precedent  or  subsequent,  201,  203. 

«frect  of  condition  upon  estate,  201. 

"how  estate  affected  by  breach  of,  203,  207. 

^hen  void,  204,  205. 

impossibility  of  performance,  204. 

Illegality  of  performance,  205. 

Tiow  estate  affected  by  void,  204. 

-time  of  performance,  206. 

■estate  upon,  distinguished  from  trusts,  210. 

"When  performance  excused,  204,  205,  208. 

"when  forfeiture  is  relieved  by  courts,  209. 

"who  can  enforce  forfeiture,  207. 

effect  of  waiver  of  performance  upon  the,  208. 

what  acts  constitute  a  waiver,  208. 

in  an  escrow,  576. 

CONDITIONAL  LIMITATIONS, 
defined,  211. 
distinguished  from  condition  and  limitation,  211. 

CONFIRMATION, 

a  common  law  conveyance,  535. 
i)76 


INDEX. 

[The  references  are  to  sections.] 
CONSANGUINITY, 
relation  by,  473. 
kinds  of,  474,  475,  476. 
how  degrees  of  relation  are  computed,  477. 
by  what  law  is  it  governed,  472. 

CONSIDERATION, 

when  requisite  to  deeds,  565. 

when  requisite  to  create  a  use,  330,  549. 

acknowledged  under  seal,  an  estoppel,  330,  549. 

CONTRIBUTION, 

between  parties  to  mortgage,  284,  288. 

COPARCENARY, 
estates  in,  180. 

CORPORATIONS, 

can  take  real  property  by  deed,  when,  561. 
can  take  real  property  by  devise,  when,  638. 

COVENANTS, 

defined  and  classified,  142,  612. 

enlarging  estate,  613. 

of  seisin  and  right  to  convey,  614. 

breach  of  covenant  of  seisin,  615. 

against  incumbrances,  616. 

breach  of  the  same,  617. 

for  quiet  enjoyment,  144,  618. 

of  warranty,  619,  620. 

the  feudal  warranty,  621. 

special  covenants  of  warranty,  622. 

exceptions  to  operation  of  covenant,  622. 

implied,  143,  146,  623. 

actions  on  covenants  of  warranty,  624,  625. 

running  with  the  land,  147,  626. 

when  breach  of  covenant  works  forfeiture,  627. 

COVERTURE, 

estate  during,  70. 

how  husband's  rights  in  wife's  lands  may  be  barred,  71. 

how  prevented  from  attaching,  72. 

restrictions  upon  alienation  of  wife's  property,  73, 

statutory  changes  in  estate  during,  74. 

CURTESY, 

defined,  essentials  of,  75. 
marriage,  76. 

«2  977 


INDEX. 

[The  references  are  to  ,aeetions.1 
CURTESY— Con*in««d. 

estate  of  inheritance  in  wife,  77. 

in  fees  determinable,  78. 

in  equitable  estates,  79. 

seisin  in  wife  during  coverture,  80. 

in  reversion,  81. 

necessity  of  issue,  82. 

liability  for  debts  of  husband,  83. 

how  estate  may  be  defeated,  84. 

CUSTOM, 

easement  created  in  favor  of  public  by,  441. 

DATE, 

in  deed,  576. 

DEED, 

defined,  550. 

what  are  requisites  of,  551,  586. 
a  sufficient  writing,  what  constitutes,  551,  553. 
■  alterations  and  interlineations,  554. 
proper  parties,  the  grantor,  555. 
infants  and  insane  grantors,  556. 
ratification  and  disaffirmance,  557. 
deeds  by  married  women,  558. 
a  disseisee  cannot  convey,  559. 
effect  of  fraud  and  duress  upon,  560. 
proper  grantees,  561. 
proper  parties  named  in  the  deed,  562. 
a  thing  to  be  granted,  563. 
what  can  be  conveyed  by,  563,  564. 
consideration,  when  requisite  to,  565. 
voluntary  and  fraudulent  conveyances  by,  what  are,  566. 
operative  words  of  conveyance,  567. 
execution  of,  what  constitutes,  568. 
power  of  attorney  to  execute,  569. 
power  of  attorney  by  married  women,  570. 
signing,  571. 
sealing,  572. 
attestation,  573. 
acknowledgment  or  probate,  574. 
reading  of,  when  necessary,  575. 
delivery  and  acceptance  of,  576. 
what  constitutes  a  sufficient  delivery,  577. 
delivery  to  stranger,  when  assent  of  grantee  presumed,  578. 

978 


INDEX. 

[The  references  are  to  sections.} 
DEED  —  Continued. 
escrows,  579, 

registration  or  record  of,  580. 
requisites  of  proper  record,  581. 
to  whom  is  record  constructive  notice,  582. 
priority  of  unrecorded  mortgages  over  judgment  creditors,  583. 
of  what  is  record  constructive  notice,  584. 
from  what  time  does  priority  take  effect,  585. 
what  constitutes  sufficient  notice  of  title  —  possession,  586. 
poll  and  of  indenture,  587. 
component  parts  of  a,  587,  611. 
the  premises,  589. 

description  —  general  statement,  590. 
contemporaneous  exposition,  591. 
falsa  demonstratio  non  nocet,  592. 
description  in  conveyance  of  joint-estates,  593. 
elements  of  description,  594. 

monuments,  natural  and  artificial,  595. 

artificial  monuments  in  United  States  surveys,  696. 

non-navigable  streams,  597. 

navigable  streams,  598. 

what  is  a  navigable  stream,  599. 

ponds  and  lakes,  600. 

highways,  601. 

walls,  trees,  fences,  etc.,  602. 

courses  and  distances,  603. 

quantity,  604. 

reference  to  other  deeds,  maps,  etc.,  for  description,  605. 

appurtenances,  606. 

grant  of  easements,  607. 

exception  and  reservation,  608. 

habendum,  609. 

reddendum,  610. 

conditions,  611. 

covenants  in,  612,  627. 

covenants  defined,  612. 

classes  of  covenants,  612. 

covenants  enlarging  the  estate,  613. 

covenants  of  seisin  and  right  to  convey,  614. 

breach  of  covenant  of  seisin,  615. 

covenant  against  incumbrances,  616.  ' 

breach  of  covenant  against  incumbrances,  617. 

covenant  of  quiet  enjoyment,  618. 

covenant  of  warranty,  619. 

979 


INDEX. 

[The  references  are  to  sections.] 

DEED  —  Continued. 

character  of  covenant  of  warranty,  620. 

the  feudal  warranty,  621. 

special  covenants  of  warranty,  622. 

implied  covenants,  623. 

who  may  maintain  actions  on  covenants  of  warranty,  624. 

what  damages  may  be  recovered  on  covenants  of  warranty,  625, 

what  covenants  run  with  land,  626. 

when  breach  of  covenant  works  forfeiture,  627. 

DEDICATION, 

of  lands  for  public  highways,  441. 
acceptance  by  public,  441. 
rights  acquired  by  public,  441. 

DELIVERY, 

of  deed,  576,  578. 
what  constitutes,  576. 
absolute  and  conditional,  577. 
escrow,  578. 

DESCENT, 

title  by,  471,  483. 

definition  of  title  by,  471. 

what  law  governs,  472. 

consanguinity  and  affinity,  473. 

how  lineal  heirs  take,  474,  475. 

collateral  heirs,  476. 

how  degree  of  collateral  relationship  is  computed,  477. 

ancestral  property,  478. 

kindred  of  the  whole  and  half  blood,  479. 

advancement  —  hotchpot,   480. 

posthumous  children,  481. 

illegitimate  children,  482. 

alienage,  a  bar- to  inheritance,  483. 

DESCRIPTION.     See  Deed  and  Devise. 

DEVISE, 

title  by,  628,  653. 

definition  and  historical  outline,  628. 

by  what  law  governed,  629. 

requisites  of  a  valid  will,  630. 

a  sufficient  writing,  631. 

what  signing  is  necessary,  632. 

proper  attestation,  633. 

who  are  competent  witnesses,  634. 

980 


INDEX. 

[The  references  are  to  sections.]  * 

DEVISE— Confrnued. 

who  may  prepare  the  will,  holographs,  635. 

what  property  may  be  devised,  636. 

a  competent  testator,  who  is,  637. 

who  may  be  devisees,  what  assent  necessary,  638. 

devisee  incapacitated  by  murder  of  testator,  639. 

devisee  and  devise  must  be  clearly  defined  —  parol  evidence,  640. 

devise  to  charitable  uses,  641. 

lapsed  devise,  what  becomes  of,  642. 

revocation  of  will,  643. 

joint  or  mutual  wills,  644. 

revocation  of  will  by  destruction,  645. 

eflFect  of  .alterations  of  will  after  execution,  646. 

revocation  of  will  by  marriage  and  issue,  647. 

revocation  of  will  by  alteration  or  exchange  of  property,  648. 

revocation  of  will  by  subsequent  will  or  codicil,  649. 

defective  will  confirmed  by  codicil,  650. 

probate  of  will,  651. 

agreements  as  to  testamentary  disposition  of  property,  653. 

DISSEISEE, 

cannot  convey,  559. 

DISSEISIN, 

defined,  491. 

distinguished  from  dispossession,  492. 

what  title  gained  by,  491. 

DIVORCE, 

efi"ect  upon  curtesy,  84. 

effect  upon  dower,  98. 

effect  upon  husband's  estate  during  coverture,  71. 

DOWER,  85,  119. 

defined  and  explained,  85. 

in  what  estates,  86. 

in  equitable  estates,  87. 

in  lands  of  trustee,  88. 

in  mortgage,  89. 

in  proceeds  of  sale,  90. 

seisin  in  husband  during  coverture,  91. 

defeasible  and  determinable  seisin,  92. 

duration  of  the  seisin,  93. 

instantaneous  seisin,  94. 

legal  marriage,  95. 

lost  or  barred  by  act  of  husband,  96. 

981 


INDEX. 

.  [The  references  are  to  sections.] 

DOWER  —  Continued. 

lost  or  barred  by  wife's  release  during  coverture,  97. 

lost  or  barred  by  elopement  and  divorce,  98. 

lost  or  barred  by  loss  of  husband's  seisin,  99. 

lost  or  barred  by  estoppel  in  pais,  100. 

lost  or  barred  by  statute  of  limitations,  101. 

lost  or  barred  by  exercise  of  eminent  domain,  102. 

widow's  quarantine,  103. 

assignment  —  two  modes,  104. 

assignment  of  common  right,  105. 

assignment  against  common  right,   106. 

by  whom  may  dower  be  assigned,  107. 

remedies  for  recovery  of,  108. 

demand  necessary,  109. 

against  whom  and  where  action  instituted,  110. 

action  abated  by  death  of  widow.  111. 

judgment,  what  it  contains,  112. 

damages,  when  recoverable,  113. 

assignment  after  judgment,  114. 

assignment,  where  two  or  more  widows  claim,  115. 

decree  of  sum  of  money  in  lieu  of,  1 16. 

barred  by  jointure,  117. 

barred  by  testamentary  provision,  118. 

barred  by  statute,  119. 

DURESS, 

effect  of,  on  validity  of  deed,  560. 

EASEMENTS,  427-452. 

defined  and  explained,  427. 
when  merger  takes  effect,  428. 
how  acquired,  429. 
by  express  grant,  430. 
by  implied  grant,  431. 
equitable  easement,  432. 
implied  from  covenant,  433. 
rights  of  action  in  defense  of,  434. 
lost  or  extinguished,  how,  435. 
kinds  of,  436. 
right  of  way,  437. 
private  way,  438. 
ways  of  necessity,  439. 
who  must  repair  the  way,  440. 
public  or  highways,  441. 
in  light  and  air,  442. 
982 


INDEX. 

[The  references  are  to  sections.} 
EASEMENTS  —  Continued. 

in  light  and  air,  how  acquired,  443. 

in  right  to  water,  444. 

percolations  and  swamps,  445. 

in  artificial  water  courses,  446. 

in  water  courses,  generally,  447. 

right  of  lateral  and  subjacent  support,  448. 

implied  grant  of  lateral  support,  449. 

party  walls,  450. 

separate  ownership  in  building  —  subjacent  support,  451. 

legalized  nuisances,  452. 

ELOPEMENT, 

of  wife,  bar  to  dower,  98. 

EMBLEMENTS, 

what  are,  7,  58. 
who  may  claim,  59. 

EMINENT  DOMAIN, 
defined,  525. 
nature  of  title  acquired  by,  526. 

ENCUMBRANCES, 

by  whom  paid  off,  54. 
interest  on,  by  whom  paid,  54. 
if  paid  by  tenant,  what  effect,  54. 

ENTIRETY, 

estates  in,  181-183. 

doctrine  of  survivorship,  181. 

estates  in,  in  a  joint- tenancy,  182, 

how  affected  by  statutes  in  United  States,  183. 

EQUITABLE  ESTATES, 
what  are,  323-327. 
history  and  origin  of,  324. 
dower  in,  87. 
curtesy  in,  79. 

EQUITY  OF  REDEMPTION, 
defined,  225. 

invariable  incident  to  mortgage,  225,  234. 
how  affected  by  contemporaneous  agreements,  234. 
how  affected  by  subsequent  agreements,  235. 

EQUITABLE  MORTAGE, 
what  is,  213. 
by  deposit  of  title  deeds,  213-226. 

983 


INDEX. 

[The  references  are  to  sections,} 

EQUITABLE  MORTGAGE  —  Continued. 
vendor's  lien,  217-219. 
vendee's  lien,  220. 

ESCROW, 

defined  and  explained,  579. 

ESTATE, 

what  is  an,  26. 
kinds  and  classes,  26. 
in  fee  simple,  29-35. 
tail,  36-45. 
for  life,  46-68. 
per  outer  vie,  47. 
joint  estates,  174-185. 
during  coverture,  69-74. 
curtesy,  75-84. 
dower,  85-119. 
homestead.  120-127. 
upon  condition.  134-143. 
upon  limitation,  143. 
equitable,  323-327. 
in  reversion,  291-295. 
in  remainder,  296-322. 
contingent  use,  .354. 
springing  use,  .355. 
shifting  use,  356. 
executory  devise,  38.5-401. 
conditional   limitations,  211. 
for  years,  128-161. 
at  will,   162-169. 
at  sufferance,  170-173. 

ESTATE  IN  FEE  SIMPLE,  29-35. 
defined  and  explained,  29. 
words  of  limitation  necessary,  30. 
statutes  abolishing,  31. 
alienation  of,  32. 

absolute  power  of,  an  incident  to  a  fee,  33. 
attempted  limitation   of,   34. 
liability  of,  for  debts,  35. 

ESTATES  TAIL,  36-45. 

base  or  qualified  fees,  36. 
fee  conditional  at  common  law,  37. 
estate  tail  explained,  38. 
984 


INDEX. 

[The  references  are  to  sections.] 

ESTATES  TAIL  —  Continued. 

necessary  words  of  limitation  in,  39. 

created  by  implication,  40. 

classes  of,  41. 

how  barred,  42. 

merger  of,  43. 

after  possibility  of  issue  extinct,  44. 

in  the  United  States,  45. 

ESTATES  FOR  LIFE,  46-68. 
definition  and  classes,  46. 
peculiarities  of  estates  per  auter  vie,  47. 
words  of  limitation  in,  48. 
tail  converted  into,  by  statute,  49. 
merger  of,  50. 
alienation  of,  51. 

life  tenant's  power  to  alien  the  fee,  52. 
tenure  between  tenant  for  life  and  revisioner,  53. 
apportionment    between    life    tenant    and    reversioner  —  of 

brances,  54. 
same  —  of  rent,  55. 

claim  of  tenant  for  improvements,  56. 
estovers,  57. 
emblements,  58. 

who  may  claim  emblements,  59. 
waste,  definition  and  history  of,  60. 
what  acts  constitute  waste,  61. 
waste,  in  respect  to  trees,  62. 

continued  —  in  respect  to  mineral  and  other  deposits,  64. 
continued  —  management  and  culture  of  land,  65. 
continued  —  in  respect  to  buildings,  66. 
continued  —  by  acts  of  strangers,  66. 
continued  —  by  destruction  of  buildings  by  fire,  67. 
exemption  from  liability  for  waste,  67. 
remedies  for  waste,  68. 
property  in  timber  unlawfully  cut  by  life  tenant,  63. 

ESTATES  FOR  YEARS,  128-161. 
history  of,  128. 
definition  of,  129. 
tenure  defined,  130. 
interesae  termini,  131. 
terms  commencing  in  futuro,  132, 
the  rights  of  lessee  for  years,  133. 
how  created,  134. 

985 


INDEX. 

[The  references  are  to  section8.'\ 
ESTATES  FOR  YEARS  —  Continued. 
form  of  a  lease,  135. 

present  lease  distinguished  from  contract  for  future  one,  136. 
acceptance  of  lease  necessary,  137. 
relation  of  landlord  and  tenant,  138. 
assignment  and  subletting,  139.  "* 

involuntary  alienation,  140. 

disposition  of  terms  after  death  of  tenant,  141. 
covenants  in  a  lease,  in  general,  142. 
covenants,  express  and  implied,  143. 
implied  covenants  for  quiet  enjoyment,  144. 
implied  covenant  for  rent,  145. 
implied  covenant  against  waste,  146. 
covenants  running  with  the  land,  147. 
conditions  in  leases,  148. 
rent  reserved,  149. 

rent  reserved,  condition  of  forfeiture,  150. 
how  relation  of  landlord  and  tenant  may  be  determined,  151. 
what  constitutes  eviction,   152. 
constructive  eviction,  153. 
surrender  and  merger,  154. 
how  surrender  may  be  affected,  155. 
right  of  lessee  to  deny  landlord's  title,  156. 
effect  of  disclaimer  of  lessor's  title,  157. 
options  of  purchase  and  for  renewal,  158. 
letting  land  upon  shares,  160. 
actions  between  landlords  and  tenants,  161. 

ESTATES  AT  WILL  AND  FROM  YEAR  TO  YEAR,  162-169. 
what  are  estates  at  will,  162. 
how  estates  at  will  are  determined,  163. 
estates  at  will  and  from  year  to  year  distinguished,  164. 
what  now  included  under  estates  at  will,  165. 
estates  at  will,  arising  by  implication  of  law,  166. 
qualities  of  tenancies  from  year  to  year,  167. 
what  notice  required  to  determine  tenancy  from  year  to  year,  168. 
how  notice  may  be  waived,  169. 

ESTATES  AT  SUFFERANCE,  170-173. 
what  are,  170. 
incidents  of,  171. 

how  tenancy  at  sufferance  may  be  determined,  172. 
effect  of  forcible  entry,  173. 

ESTATES  UPON  CONDITION,  200-211. 
definition  of,  200. 
986 


INDEX, 

[The  references  are  to  sections.] 
ESTATES  UPON  CONDITION  —  Con^iMMcd. 
words  necessary  to  creation  of,  201. 
conditions  precedent  and  subsequent,  202,  204. 
invalid  conditions  —  impossibility  of  performance,  203. 
invalid  conditions  —  because  of  illegality,  204. 
building  restrictions  in  deeds,  205. 
time  of  performance,  206. 
effect  of  breach  of  condition  upon,  207. 
waiver  of  performance,  208. 
equitable  relief  against  forfeiture,  209. 
distinguished  from  trusts,  210. 

distinguished  from  estates  upon  limitation  and  conditional  limita- 
tions, 211. 

ESTATES  UPON  LIMITATION,  211. 

ESTOPPEL,  508-515. 

defined,  508. 
in  pais,  509. 

perfection  of  title  by  the  operation  of,  510. 

is  fraud  necessary  to,  511. 
by  deed,  in  its  relation  to  title  by  adverse  possession,  512,  513. 
effect  of  estoppel  upon  the  title,  514. 
binding  upon  whom,  515. 

ESTOVERS, 

defined  and  explained,  57. 

EVICTION  OF  TENANT, 

actual  and  constructive,  152-153. 
effect  of,  151. 

EXCEPTION 

and  reservation  distinguished,  608. 

EXCHANGE, 

technical  conveyance  at  common  law,  535.  ' 

rule  as  to  dower  in  technical  cases  of,  115. 

EXECUTION, 

title  acquired  by  sale  under,  529. 
of  mortgages,  228-229. 
of  deeds,  568-573. 
of  devises,  630-635. 

EXECUTORY  DEVISES,  385-401. 
nature  and  origin  of,  385. 
Tested  and  contingent,  386. 

987 


INDEX. 

[The  references  are  to  sections.} 
EXECUTORY  DEVISES  —  Continued. 
classes  of,  387. 

distinguished  from  devises  in  prcesenti,  388. 
reversion  of  estate  undisposed  of,  what  becomes  of,  389, 
distinguished  from  uses,  390. 
distinguished  from  remainders,  391-395. 
may  be  limitation  after  a  fee,  392. 
limitation  after  estate  tail,  a  remainder  and  not  an  executory  devise, 

393. 
arising  by  lapse  of  prior  limitation,  394. 
remainder  may  be  limited  after,  395. 
indestructibility  of,  396. 
limited  upon  failure  of  issue,  397. 
use  limited  upon  failure  of  issue  in  deed,  398. 
how  affected  by  rule  against  perpetuity,  399. 
rule  against  accumulation  of  profits,  400. 
of  chattel  interests,  401. 

FEE, 

meaning  of  term  under  feudal  system,  21. 
words  of  limitation  in  creation  of  a,  39. 
base  or  qualified,  C  3,  200-211. 
conditional  at  common  law,  37. 

FEE  SIMPLE,  29-35. 
defined,  29. 

words  of  limitation  in  a,  30. 
statutes  abolishing,  31. 
alienation  of,  32. 
liability  for  debts,  35. 

absolute  power  of  sale,  an  incident  of,  33. 
attempted  limitation  after,  34. 

FEE  TAIL,  38-44.     See  Estates  Tail. 

FEOFFMENT, 

explained  and  defined,  24,  536. 

when  it  will  operate  tortiously,  536. 

FERRIES.     See  Franchises. 

FEUDAL  SYSTEM, 

principles  of  the,  19-28. 
what  is  tenure,  19. 
feudal  tenure,  20. 
feud  or  fief,  21. 
subinfeudation,  22. 

988 


INHRX. 

[The  references  are  to  sections.] 

FEUDAL  SYSTEM  — Cmtinued. 
the  feudal  manor,  23. 
feoffment  and  livery  of  seisin,  24. 
tenure  in  the  United  States,  25. 
classes  of  estates,  26. 
estates  in  possession  and  expectancy,  27. 
joint  and  several,  28. 

FIDEI  COMMISSUM, 
resembles  use,  324. 

FILUM  AQUAE,  489. 

FINE, 

and  common  recoveries,  41. 

FIXTURES,  9-18. 

general  doctrine  of,  9. 

defined,  10. 

tests  for  determining,  11.  .        ^ 

identity  and  use  of  chattel,  12. 

who  may  claim,  13. 

what  constitutes  constructive  annexation,  14. 

temporary  annexation,  15. 

between  landlord  and  tenant,  16. 

erected  by  licensee,  17. 

time  for  removal  of,  18. 

FLOWING  LANDS, 

when  permitted  by  upper  land-owner,  447. 

FORECLOSURE,  272-282. 

FRANCHISES,  453^56. 
defined,  453. 
kinds  of,  454. 

mutual  obligations  arising  out  of,  455. 

conflicting   franchises  —  constitutional    prohibition   against   legisla- 
tive avoidance  of,  456. 

FRAUDULENT  CONVEYANCES, 
what  are,  566. 

FRAUDS,  STATUTE  OF, 
in  respect  to  leases,  135. 
in  respect  to  uses  and  trusts,  374. 
in  respect  to  conveyances  generally,  549. 
does  not  require  a  sealed  instrument,  549. 
in  respect  to  mortgages,  229-233. 

989 


INDEX. 

[The  references  are  to  sections.} 
FREEHOLD, 

defined,  23,  26. 

classes  of,  26. 

distinguished  from  leasehold,  129. 

seisin  applicable  only  to,  24. 

cannot  be  created  to  commence  in  futuro,  292-296. 

descends  to  heir,  471-483. 

FUTURE  USES,  350-359. 

GIFT, 

originally  a  feoffment  in  tail,  535. 

GRANT,  519-549. 

title  by  public  grant,  519-522, 

title  by  involuntary  alienation,  523-533. 

title  by  private  grant,  534-549. 

GRANT,  TITLE  BY  PUBLIC,  519-522. 
of  public  lands,  519. 
forms  of  public,  520. 

relative  value  of  patent  and  certificate  of  entry,  521. 
pre-emption,  522. 

GRANT,  TITLE  BY  INVOLUNTARY,  523-533. 
defined,  523. 

scope  of  legislative  authority,  524. 
eminent  domain,  525. 
from  persons  under  disability,  526. 
confirming  defective  titles,  527. 
sales  by  administrators  and  executors,  528. 
sales  under  execution,  529. 
sales  by  decree  of  chancery,  530. 
tax-titles,  531. 
validity  of  tax-title,  532. 
judicial  sales  for  delinquent  taxes,  533. 

GRANT,  TITLE  BY  PRIVATE,  534-549. 
defined  and  explained,  534. 

principal  features  and  classes  of  common-law  conveyances,  535. 
feoffment,  536. 
common-law  grant,  537. 
lease,  538. 
release,  539. 
confirmation,  539. 
surrender,  539. 

conveyances  under  the  Statute  of  Uses,  540-544. 
990 


INDEX. 

[The  references  are  to  sections.] 

GRANT,  TITLE  BY  PRIVATE  —  Continued. 
retrospection,  540, 
covenant  to  stand  seised,  541. 
bargain  and  sale,  542. 

future  estates  of  freehold  in  bargain  and  sale,  543. 
lease  and  release,  644. 

what  conveyances  now  judicially  recognized,  545. 
statutory  forms  of  conveyance,  546. 
quit-claim  deed,  547. 

dual  character  of  common  conveyances,  548. 
is  a  deed  necessary  to  convey  a  freehold,  549. 

GROWING  CROPS, 

when  part  of  the  realty,  2,  563. 

GUARDIANS, 

may  sell  lands  of  ward  upon  order  of  court,  526. 
holding  over  are  not  tenants  at  sufferance,  170. 

HABENDUM, 

its  use  and  necessity  in  deeds,  609. 

HAY-BOTE  OR  HEDGE-BOTE.     See  Estovebs. 

HEIR, 

defined,  471. 

apparent  and  presumptive  distinguished,  471. 

a  parent's  deed  operates  by  estoppel,  664. 

HEIRS, 

as  a  word  of  limitation,  30,  39. 

HEIRS  OF  THE  BODY, 
who  are,  39. 

HEREDITAMENTS, 
term  defined,  6. 
two  classes  of,  6. 
(see  incorporeal  hereditaments.) 

HIGHWAYS, 

as  a  monument  of  description,  601. 
right  of  the  public  in,  bow  acquired,  441. 

HOLDING  OVER, 

by  tenant  makes  him  tenant  at  sufferance,  170. 

by  guardian,  and  trustees  makes  them  trespassers,  170. 

HOLOGRAPHS,  635. 

991 


TNDEX. 

{The  references  are  to  sections.] 

HOMESTEADS,  THE  LAW  OF,  120-127. 
history  and  origin,   120. 
nature  of  the  estate,  121. 
who  may  claim.  122. 
what  may  be  claimed,  123. 
proceedings  for  allotment  of,  124. 
exemption  from  debt,  125. 
how  lost  —  by  alienation,  126. 
lost  by  abandonment,  127. 

HOUSES, 

generally  part  of  the  land,  2,  563. 
(see  fixtures.) 

HOUSEBOTE.     See  Estovers. 

HUSBAND  AND  WIFE, 

when  tenants  by  entirety,  181-182. 
when  tenants  in  common,  183. 
rights  of  property  in  each  other's  lands,  69-127. 
cannot  convey  directly  to  each  other,  may  make  joint  conveyance 
of  wife's  property,  558. 

IMPEACHMENT  FOR  WASTE, 
exemptions  from,  67. 

IMPLIED, 

conditions,  148,  150,  200, 
covenants  in  deeds,  623. 
in  leases,  143-146. 
trusts,  365. 

INCORPOREAL  HEREDITAMENTS,  422-466. 
rights  of  common,  422-425. 
easements,  427-452. 
rents,  461-466. 
franchises,  453-456. 

INCUMBRANCES, 

covenant  against,  616-617. 

when  tenant  must  pay  oflF  and  how  payment  apportioned,  64. 

INDENTURE, 

what  is  deed  of,  587. 

INFANT, 

deed  of,  whether  void  or  voidable,  556. 
not  bound  by  estoppel,  515. 
992 


INDEX. 

[The  references  are  to  sections.] 
INFANT  —  Continued. 

cannot  avoid  deed  during  infancy,  356-557. 
confirmation  validates  the  deed,  556-557. 

INHERITANCE, 
estates  of,  26. 
words  of,  30,  39. 

INSANE  PERSON, 

deed  of,  whether  void  or  voidable,  556. 

effect  of  disaffirmance  and  ratification,  556,  557. 

INSOLVENT, 

assignee  of,  when  bound  by  covenants  in  assignor's  lease,  140. 

INSURANCE, 

mortgagor  and  mortgagee's  right  to  effect,  248. 
rules  for  applying  insurance  money,  248. 
double  insurance,  248. 
company's  right  of  subrogation,  248. 

INSTANTANEOUS  SEISIN, 

in  respect  to  attaching  dower  right,  91. 

TNTERESSE  TERMINI,  131. 

IRRIGATION, 

right  of  riparian  owners  to  water  for,  444-447. 

ISLANDS, 

forming,  in  whom  is  right  of  property,  489. 

JOINT  ESTATES,  174-185. 

distinguished  from  several,  174. 

what  are,  175. 

classes  of,  176. 

joint-tenancy,  177. 

incidents  of  joint-tenancy,  177. 

doctrine  of  survivorship,  how  destroyed,  177. 

tenancy  in  common,  178. 

when  tenancies  in  common,  179. 

tenancy  in  coparcenary,  180. 

estates  in  entirety,  181-183. 

tenancy  in  common  between  husband  and  wife,  183. 

estates  in  partnership,  184. 

several  interests  of  partners,  185. 

disseisin  by  one  co-tenant,  186. 

adverse  title  acquired  by  one  co-tenant,   187. 

alienation  of,  188,  593. 

«3  993 


INDEX. 

[The  references  are  to  sections.] 

JOINT  ESTATES  — Continued. 
waste  by  co-tenant,  189. 

liability  of  one  co-tenant  for  rents  and  profits,  190. 
definition  of  partition,  192. 
voluntary  partition,  193. 
involuntary  or  compulsory  partition,  194. 
who  can  maintain  action  for  waste,  195. 
partial  partition,  196. 
manner  of  allotment,  197. 
relief  incident  to,  198. 
effect  of  partition,  199. 

JOINT-TENANCY.    See  Joint  Estates. 

JOINTURE, 

explained,  a  bar  to  dower,  117. 

JUDGMENT-LIEN, 

when  takes  precedence  to  mortgage,  260,  583. 
when  created  by  docket  of  judgment,  529. 

LAKES, 

as  monuments  of  description,  600. 

LAND, 

what  is,  2-5. 

what  included  in  conveyance  of,  2,  563-564. 

never  appurtenant  to  land,  606. 

LANDS, 

tenements  and  hereditaments,  distinguished,  6. 

LAND  WARRANTS, 

to  what  extent  legal  title,  521. 

LANDLORD  AND  TENANT, 

what  constitutes  relation  of,  138. 
(see  estates  for  years.) 

LEASE, 

form  and  requisites  of,  135,  538. 

distinguished  from  contract  for  future  lease,  136. 

(see  estates  for  years.)  ' 

LEASE  AND  RELEASE, 

defined  and  explained,  544. 

LEGISLATURE, 

may  create  franchises,  453. 

power  of,  over  franchises,  455-456. 

994 


INDEX. 

IThe  references  are  to  sectiona.1 

LEGISLATURE  —  Continued. 

validity  of  sales  of  private  property  by,  524. 
exercise  of  eminent  domain  by,  525. 

LEGAL  ESTATES, 

distinguished  from  equitable,  26. 

LESSEE.     See  Estates  for  Years. 

LESSOR.     See  Estates  fob  Years. 

LETTING  LAND  UPON  SHARES,  160. 

LICENSE,  465-468. 

defined  and  explained,  465. 
how  and  when  revoked,  466,  467. 
how  created,  468. 
fixtures  erected  under,  17. 

LIEN, 

of  vendor,  217-220. 

of  vendee,  220. 

by  deposit  of  title  deeds,  213-215. 

by  judgment,  when  takes  precedence  to  mortgage,  260. 

when  created  by  docket  of  judgment,  529. 

LIFE  ESTATE.    See  Estates  fob  Life. 

LIGHT  AND  AIR, 
easement  in,  442. 
how  created,  443. 

LIMITATIONS, 

statute  of,  503,  507. 

what  statute  enacts,  503. 

requires  continuous  and  uninterrupted  possession,  504. 

runs  against  v.hom,  505. 

how  and  when  statute  operates,  500. 

eflTect  of,  507. 

LINEAL  AND  COLLATERAL  WARRANTY,  621. 

LIVERY  OF  SEISIN,  24. 

LUNATIC, 

capacity  as  a  grantor,  556-567. 
capacity  as  a  devisor,  637. 

MACHINERY, 

when  passes  as  realty,  2. 

995 


INDEX. 

[The  references  are  to  sections.] 

MAGNA  CHARTA, 

provisions  of,  in  respect  to  alienation,  22. 

MANURE, 

when  part  of  realty,  2. 

MAP. 

may  be  made  by  reference  part  of  description,  605, 

MARITAL  RELATION, 

estates  arising  out  of  the,  69-127. 

estate  of  husband  during  coverture,  69-74. 

estate  by  curtesy,  75-84.* 

dower,  85-119. 

homestead  estates,  120-127. 

MARRIED  WOMEN, 

Have  dower  in  husband's  estate,  85-119. 
how  far  able  to  convey  legal  estates,  557. 
rights  to  convey  equitable  estates,  348. 

MARSHALLING  OF  ASSETS, 

between  successive  mortgages,  290. 

MERGER, 

of  estate  for  life,  50. 

of  estate  for  years,  155. 

of  estate  per  auter  vie,  47. 

of  estate  tail,  42. 

of  mortgage,  242. 

of  equitable  estate,  337,  343. 

MINES, 

included  in  term  land,  2. 

opening  of,  when  waste  by  tenant,  64. 

widow  has  dower  in,  86. 

MONUMENTS, 

element  of  description  of  boundary,  594. 

natural  and  artificial,  595. 

artificial  monuments  in  United  States  surveys,  596. 

non-navigable  streams,  597. 

navigable  streams,  598. 

ponds  and  lakes,  599. 

highways,  600. 

walls,  trees,  fences,  etc.,  601. 

MORTGAGE,  212-290. 
defined,  212. 
996 


INDEX. 

[ITie  references  are  to  sections.] 
MORTGAGE  —  Continued. 

by  deposit  of  title  deeds,  213-216. 

notice   to   subsequent   purchasers,   214. 

their  recognition  in  this  country,  215. 

foreclosure  of  mortgage  by  deposit  of  title  deeds,  216- 

vendor's  lien,  217-219. 

whom  does  it  bind,  217. 

what  constitutes  notice  of  vendor's  lien,  217. 

lien  how  discharged,  218. 

in  whose  favor  raised,  219. 

vendee's  lien,  220. 

foreclosure  of  vendor's  and  vendee's  liens,  220. 

at  common  law,  221. 

vivum  vadium,  222. 

Welsh  mortgage,  224. 

equity  of  redemption,  225. 

in  equity,  226. 

influence  of  equity  upon  law  in  respect  to  the,  227. 

what  constitutes  a,  228. 

execution  of  the  defeasance,  229. 

form  of  defeasance,  230. 

defeasance  distingmshed  from  agreements  to  repurchase,  231. 

defeasance  clause  in  equity,  232. 

admissibility  of  parol  evidence  to  convert  deed  into  a,  233. 

how  afl"ected  by  contemporaneous  agreements,  234. 

how  affected  by  subsequent  agreements,  235. 

debt  necessary  to  a  mortgage,  236. 

for  support  of  mortgagee,  237. 

what  may  be  mortgaged,  238. 

mortgagor's  interest,  239. 

mortgagee's  interest,  240. 

may  be  devised,  241. 

merger,  242. 

possession  of  mortgaged  premises,  243. 

special  agreements  in  respect  to  possession,  244. 

rents  and  profits,  245. 

mortgagee's  liability  for  rents  received,  246. 

tenure  between  mortgagor  and  mortgagee,  247. 

insurance  of  the  mortgaged  premises,  248. 

assignment,  249. 

common  law  assignment,  250. 

assignment  under  lien  theory,  251. 

assignment  of  mortgagor's  interest,  262. 

rights  and  liabilities  of  assignees,  253. 

997 


INDEX. 

[The  references  are  to  sections.] 
MORTGAGE  —  Continued. 

effect  of  payment  or  tender  of  payment,  254. 

who  m«y  redeem,  255. 

what  acta  extinguish  the  mortgage,  256. 

effect  of  a  discharge,  257. 

when  payment  will  work  an  assignment,  258. 

registry  of  mortgages,  and  herein  of  priority,  259. 

rule  of  priority  from  registry,  its  force  and  effect,  260. 

registry  of  assignments  of  mortgages  and  equities  of  redemption, 

261. 
tacking  of  mortgages,  262. 
priority  in  mortgages  for  future  advances,  263. 
actions  for  waste,  264. 
process  to  redeem,  265. 
accounting  by  the  mortgagee,  266. 
continued  —  what  are  lawful  debits,  267. 
continued  —  what  are  lawful  credits,  268. 
making  rests,  269. 
balance  due,  270. 

foreclosure  —  nature  and  kinds  of,  271. 
continued  —  who  should  be  made  parties,  273-274. 
effect  of  decree  in  foreclosure  upon  the  land,  275. 
effect  of  foreclosure  upon  the  debt,  276. 
with  power  of  sale,  277. 

character  of  mortgagee  in  relation  to  the  power,  278. 
purchase  by  mortgagee  at  his  own  sale,  279. 
extinguishment  of  the  power,  280. 
application  of  purchase-money,  281. 
deeds  of  trust,  282. 

contribution  to  redeem  —  general  statement,  283. 
contribution  between  mortgagor  and  his  assignee,  284. 

between  assignees  of  mortgagor,  285. 

between  surety  and  mortgagor,  286. 

between  heirs,  widows  and  devisees  of  mortgagor,  287. 

between  mortgaged  property  and  mortgagor's  personal  estate, 
288. 
special  agreements  affecting  the  rights  of  contribution  and  exonera- 
tion, 289. 
marshalling  of  assets  between  successive  mortgages,  290. 
satisfaction  of  mortgages  on  the  record,  264. 

NAKED  POWER, 
what  is,  404. 

008 


INDEX. 

[The  references  are  to  sections.] 
NAMES, 

of  parties  to  deed,  essential  for  description,  562. 
when  deed  is  void  for  uncertainty  of,  562. 
of  devisees  must  be  plainly  given,  640. 

NAVIGABLE  STREAM, 
what  is,  599. 
as  a  monument  of  description,  598. 

NECESSITY, 
way  of,  639. 

NEMO  EST  H^RES  VIVENTIS,  471. 

NON  COMPOS  MENTIS, 

power  to  make  deeds,  556. 
power  to  make  will,  637. 

NON-XAVIGABLE  STREAMS, 

as  a  monument  of  description,  597. 

NON-USER, 

its  effect  upon  easement,  635. 

NOTICE  TO  QUIT, 

necessary  to  terminate  tenancy  from  year  to  year,  164,  167,  169. 
length  of  notice  required,  169. 

NOTICE, 

actual  and  constructive,  580-583. 

constructive  from  r^istry  of  deed,  580-582. 

what  actual  notice  puts  purchaser  upon  inquiry,  583. 

OBSTRUCTION, 

of  water  course,  how  far  lawful,  444-447. 

right  of  water,  444. 

of  percolations  and  swamps,  445.  ^ 

of  artificial  water  courses,  446. 

of  water  courses  generally,  447. 

OCCUPANCY,  TITLE  BY,  484-486. 
defined  and  explained,  484. 
in  estates  per  auter  vie,  486. 
condition  -of  public  lands  in  United  States,  485. 

OUSTER, 

of  tenant,  effect  upon  covenant  for  rent,  151-153. 

OUTSTANDING  TERM, 

to  attend  inheritance,  154. 

999 


INDEX. 

[The  references  are  to  sections.^ 
OWELTY  OF  PARTITION,  197. 

OWNERSHIP, 

double,  in  lands,  4,  6. 

PAROL  EVIDENCE, 

admissible  to  show  a  deed  to  be  a  mortgage,  233. 
may  establish  amount  of  consideration  of  a  deed,  565. 
may  prove  location  of  monuments  in  a  deed,  591-596. 

PAROL  LEASES, 

how  far  binding,  134,  166. 

PAROL  LICENSE, 

nature  of  interest  created  by,  465. 
how  far  and  when  revocable,  466,  467. 

PARTICULAR  ESTATE, 
what  is  a,  296. 

PARTIES, 

to  deeds,  who  are  competent,  555,  556,  558,  560. 
to  foreclosure  of  mortgage,  273-274. 
redemption  of  mortgage,  255-256. 

PARTITION,  192-199. 

defined  and  explained,  192. 

voluntary  partition,  193, 

involuntary  or  compulsory  partition,  194. 

who  can  maintain  action  for,  195. 

partial  partition,  196. 

mode  of  allotment  in,  197. 

relief  incidental  to,  198., 

effect  of,  199. 

PARTNERSHIP, 
estate  in,  184. 
several  interests  of  partners  in  estate  in,  185. 

PARTY  WALLS, 

as  an  easement,  450. 

PATENT  OF  LAND, 

from  the  State  or  United  States,  520. 

its  value  compared  with  certificate  of  entry,  521. 

PAYMENT, 

of  mortgage,  effect  of,  264,  256. 

when  it  works  an  assignment,  258. 

1000 


INDEX. 

[The  references  are  to  sections,] 
PERCOLATIONS, 

rights  in  and  to,  445. 

PER  MY  ET  PER  TOUT,  177. 

PERPETUITY, 

rule  against,  398. 

in  its  relation  to  powers,  419. 
does  not  apply  to  remainders,  312. 

PERSONAL  PROPERTY, 

when  it  becomes  part  of  realty,  9-18. 

estates  for  years  are,  128-129. 

when  liable  to  contribution  towards  payment  of  mortgage,  288. 

PONDS, 

as  monuments  of  description,  600.  "" 

POSSESSION, 

constructive  notice  of  deed,  586. 

title  by  adverse,  490-502. 

effect  of  naked  possession,  490. 

seisin  and  disseisin  explained,  491. 

disseisin  and  dispossession  distinguished,  492/ 

actual  or  constructive  possession  necessary,  493. 

what  acts  constitute  actual  possession,  visible  or  notorious,  494,  495. 

must  be  distinct  and  exclusive,  496. 

must  be  hostile  and  adverse,  497. 

when  adverse  after  lawful  entry,  498. 

disseisor's  power  to  alien,  499. 

title  by  adverse,  how  defeated,  500. 

how  made  absolute,  501. 

betterments,  502. 

POSSIBILITY  OF  ISSUE  EXTINCT, 
estate  tail  after,  44. 

POSTHUMOUS  CHILDREN, 
right  to  inherit,  481. 
how  affected  by  will  of  parent,  481. 

POWERS,  402-421. 

of  the  nature  of  powers  in  general,  402. 
classes  of,  402. 

POWERS  OF  APPOINTMENT,  403-421. 
kinds  of,  404. 

suspension  or  destruction  of,  406. 
how  created,  406. 

1001 


INDEX. 

[The  references  are  to  sections.] 

POWERS  OF  APPOINTMENT  —  Continued. 
distinguished  from  estates,  407. 
enlarging  estate  to  which  they  are  coupled,  408. 
who  may  be  donee,  409. 
executed  by  whom,  410. 
mode  of  execution,  411. 
who  may  be  appointees,  412. 
execution  by  implication,  413. 
excessive  execution,  414. 
successive  execution,  415. 
revocation  of  appointment,  416. 
cy  pres  doctrine  applied  to,  417. 
defective  execution,  417. 
non-execution,  418. 

rules  against  perpetuity  applied  to,  419. 
rights  of  donee's  creditors  in  the  power,  420. 
rights  of  creditors  of  beneficiaries,  421. 

POWERS  OF  ATTORNEY, 
to  execute  deed,  569. 
by  married  women,  570. 

POWER  OF  SALE, 

in  a  mortgage,  277-282. 

explained,  277. 
character  of  mortgagee  in  relation  to,  278. 
when  extinguished,  279. 
purchase  by  mortgagee  at  sale  under,  280. 
application  of  purchase-money,  281. 
in  deeds  of  trust,  282. 

PRE-EMPTION,  522. 

PREMISES  OF  A  DEED,  589-608. 
what  contained  in,  589. 
description  of  land,  general  statements,  590. 
contemporaneous  exposition,  591. 
falsa  demonstratio  non  nocet,  592. 
elements  of  description,  593. 
monuments,  natural  and  artificial,  594. 
artificial  monuments  in  United  States  surveys,  595. 
non-navigable  streams,  596. 
navigable  streams,  597. 
what  is  a  navigable  stream,  598. 
ponds  and  laJces,  599. 
highways,  600. 
1002 


INDEX. 

[The  references  are  to  sections.] 
PREMISES  OF  A  DEED  — Continued. 
walls,  fences,  trees,  etc.,  601. 
courses  and  distances,  602. 
quantity  of  land,  603. 

reference  to  other  deeds,  maps,  etc.,  for  description,  604. 
appurtenances,  605. 
exception  and  reservation,  608. 

PRESCRIPTION, 

applies  only  to  incorporeal  hereditaments,  429. 
distinguished  from  limitation,  429. 

PRIMOGENITURE,  474. 

PRIORITY, 

in  extraordinary  use  of  water  course,  447. 
of  title  by  registration  of  deeds,  580-582. 
of  mortgage  from  recording,  259-273. 
in  registry  of  assignments  of  mortgage,  261. 
in  mortgages  for  future  advances,  263. 

PRIVATE  GRANT,  TITLE  BY,  534. 
defined  and  explained,  534. 

principal  features  and  claeses  of  common-law  conveyances,  535. 
feoffment,  536. 
common-law  grant,  537. 
lease,  538. 
release,  539. 
confirmation,  540. 
surrender,  540. 

conveyances  under  statute  of  uses,  541-544. 
retrospection,  541.  v 

covenant  to  stand  seised,  542. 
bargain  and  sale,  543. 

future  estates  of  freehold  in  bargain  and  sale,  544. 
lease  and  release,  548. 

what  conveyances  now  judicially  recognized,  546. 
statutory  forms  of  conveyances,  547. 
quit-claim  deed,  548. 

dual  character  of  common  conveyances,  548, 
is  a  deed  necessary  to  convey  freeholds,  549, 

PRIVITY, 

of  contract  between  lessor  and  lessee,  139. 

of  estate  between  reversioner  and  particular  tenant,  138,  157. 
PROFITS  A  PRENDRE, 

rights  of  common  appurtenant  and  in  gross,  424,  425. 

1003 


INDEX. 

[The  references  arc  to  sections.} 
PROPERTY, 

divided  into  real  and  personal,  1. 

PUBLIC, 

rights  of,  in  highways  acquired  by  custom,  441. 

PUBLIC  GRANT,  TITLE  BY,  519-522. 
of  public  lands,  519. 
forms  of  public  grant,  520. 

relative  value  of  patent  and  certificate  of  entry,  521. 
pre-emption,  522. 

PUBLIC  LANDS, 

in  United  States,  486.    See  Public  Grant. 

PURCHASE, 

what  is  title  by,  469. 

QUALIFIED  FEE, 

what  is,  36,  200-210. 

QUANTITY, 

of  land,  as  an  element  of  description,  604. 

•  QUARANTINE, 

widow's  right  of,  103. 

QUIA  EMPTORES, 

statute  of,  granted  right  of  alienation  of  freeholds,  22-31. 
forbids  restraint  of  alienation  of  fees,  204. 

RAILROAD, 

rolling  stock  of,  whether  real  estate,  2. 
franchise  of.     See  Franchises. 

RATIFICATION 

of  deed  by  infant  or  insane  person,  557. 

REAL  ESTATE 

distinguished  from  real  property,  1-128. 

REAL  PROPERTY, 
defined,  1. 

what  included  in,  2. 
fixtures  as  a  part  of,  9-18. 
emblements,  7,  68-69. 
trees,  a  part  of,  8. 
double  ownership  in,  4,  5. 

includes  lands,  tenements,  and  hereditaments,  6. 
1004 


INDEX. 

[The  references  are  to  sections.} 
RECEIVER, 

to  mortgaged  property,  when  appointed,  245. 
to  life  estate  when  appointed,  54  n. 

RECITALS, 

how  far  estoppel  arise  from,  511. 

RECORD.    See  Registration. 

RECOVERY, 

us  a  mode  of  conveying  lands,  42. 

REDEMPTION, 

equity  of.    See  Equity  of  Redemption. 
right  of.     See  Mobtgaoes. 

REFORMATION  OF  DEEDS,  591. 

REGISTRATION  OF  DEEDS,  580-585. 

constructive  notice,  582. 

rule  of  priority  from,  583. 
of  mortgages,  259,  260,  263. 

tlieir  satisfaction  of  record,  264. 
of  assignments  of  mortgage,  261. 

REGISTRATION  OF  TITLES,  654-667. 
history  of  legislation  regarding,  654. 
object  of  statutes,  655. 
constitutionality  of  statutes,  656. 
registrars  and  examiners,  657. 
how  land  is  brought  under,  658. 
proceedings  before  examiner,  659. 
jurisdiction  and  power  of  the  court,  660. 
effect  of  registration,  661. 
conveyances  under  Torrens  law,  602. 
death  of  owner  —  transmission  of  land,  663. 
judgments  and  liens,  under,  664. 
assessments  under,  664. 
relief  against  power  of  registrar,  665. 
indemnity  and  recovery  of,  666. 
advantages  and  objections  to,  667. 

RELEASE, 

common-law  conveyance,  539. 
lease  and,  544. 

REMAINDERS,  296-322. 

nature  and  definition  of,  296. 
kinds  of,  299-301. 

1005 


INDEX. 

[The  references  are  to  sections.] 
REMAINDERS  —  Continued. 

successive  remainders,  300. 

disposition  of  vested,  299. 

relation  of  tenant  and  remainderman,  .300. 

vested  and  contingent,  further  distinguished,  301. 

uncertainty  of  enjoyment,  301. 

to  a  class,  302. 

after  happening  of  contingency,  303. 

cross  remainders,  304. 

nature  and  origin  of  contingent  remainder,  305. 

classes  of  contingent  remainders,  30G. 

alienation  of,  307. 

vested  remainder  after  contingent,  308,  309. 

alternate  remainders  in  fee,  310. 

restrictions  upon  nature   of   contingency  —  legality,   311. 
same  —  remoteness,  312. 

contingency  must  not  abridge  particular  estate,  313. 

how  contingent  remainder  may  be  defeated,  314. 

defeated  by  disseisin  of  particular  tenant,  315. 

defeated  by  merger  of  particular  estate,  316. 

defeated  by  feoffment  by  tenant,  317. 

defeated   by  entry   for   condition   broken,   318. 

trustees  to  preserve,  319. 

actions  by  remaindermen,  320. 

origin  and  nature  of  rule  in  Shellej-'s  case,  321. 

requisites  of  the  rule,  322. 
RENT, 

covenant  of.     See  Estates  fob  Yeabs. 

RENTS,  457-463. 
defined,  457. 
service,  458. 
charge  and  seek,  459. 
fee-farm  rent,  460. 
how  created,  461. 

how  extinguished  or  apportioned,  462. 
remedies  for  recovery  of,  463. 

REPAIRS, 

liability  for,  in  estates  for  life,  66. 
in  estates  for  years,  66,  146. 
in  mortgaged  property,  265,  269. 
in  double  ownership  of  house,  451. 

REPURCHASE, 

right  to,  distinguished  from  mortgage,  2.31. 

1006 


INDEX. 

[The  references  are  to  sections.] 
I^ESERVATTON, 

distinguished  from  exception,  608. 

T^ERULTING  TRUSTS,  366,  367. 

RESULTING  USES,  443. 

RE\'T:RSI0N,  291-295. 

defined  and  explained.  291. 
assignment  and  devise  of,  292. 
descendible  to  whom,  293. 
dower  and  curtesy  in,  294. 
rights  and  powers  incident  to,  295. 

REVOCATION" 

of  appointment  under  a  power,  416. 
of  a  will  —  general  statement,  645. 

by  destruction  of  will,  646. 

by  marriage  and  birth  of  issue,  647. 

by  alteration  or  exchange  of  property,  648. 

by  subsequent  will  or  codicil,  649. 

by  happening  of  expressed  contingency,  650. 

RIPARIAN  PROPRIETORS. 

right  to  alluvion  and  accretion,  487,  488. 
right  to  use  of  water,  444-447. 
boundary  of  land  of,  597-600. 

RIVERS, 

what  are  navigable,  599. 

as  boundaries  to  land,  597,  598. 

title  to  islands  forming  in,  488. 

ROLLING  STOCK 

of  railroads,  whether  real  estate,  2. 

RULE  IN  SHELLEY'S  CASE, 
nature  and  origin  of,  321, 
requisites  of  the  rule,  322. 

« 
SALE  OF  LAND  ^ 

by  legislative  acts  under  eminent  domain,  526. 

of  persons  under  disability,  526. 
by  administrators  and  executors,  528. 
under  execution,  529. 
for  delinquent  taxes,  531-533. 
by  decree  of  chancery,  530. 

SCINTILLA  JURIS,  352,  368. 

loor 


INDEX. 

{The  references  are  to  sections.} 
SEAL, 

necessary  to  a  deed,  670-572. 

not  necessary  to  will,  631. 

not  necessary  to  a  leasehold,  134. 

SEALED  INSTRUMENT, 

when  necessary  to  convey  freehold,  549, 

SEISIN, 

what  is,  24,  296,  297,  300,  336. 
and  disseisin  explained,  491. 

SERVIENT  ESTATE,  427. 

SEVERALTY, 

estates  in,  26,  174. 

SHARES, 

letting  land  upon,  160. 

SHELLEY'S  CASE, 
rule  in,  321-322. 

SIGNING, 

essential  to  deed,  570. 
essential  to  will,  632. 

SOCAGE  TENURE,  23. 

SPRINGS  OF  WATER, 
rights  in  and  to,  445. 

STIRPES, 

inheritance  per,  474,  477. 

STREET 

or  highway,  as  a  boundary,  601. 

STREAMS, 

what  are  navigable,  599. 
as  boundaries,  596,  598. 

SUBINFEUDATION,  22. 

SUBLETTING, 

distinguished  from  assignment,  139. 

SUBPOENA,  WRIT  OF, 
origin  of,  326. 

SUBROGATION 

of  insurance  company  to  mortgagee,   248. 

of  mortgagee  to  mortgagor's  rights  against  assignee  or  mortgagor, 
253. 
1008 


INDEX. 

[The  references  are  to  sections.] 
SUCCESSORS, 

a    word   of  limitation  in  conveyance  to   corporations,   when   neces- 
sary, 30. 
in  privity,  acquire  title  by  adverse  possession,  499. 

SUFFERANCE,  TENANCY  AT,   170-173. 
defined  and  explained,  170. 
incidents  of  the  tenancy,  171. 
how  determined,  172. 
effect  of  forcible  entry,  173. 

SUPPORT, 

lateral  and  subjacent,  448. 

SURRENDER, 

a  common  law  conveyance,  539. 

SURETY, 

when  subrogated  to  rights  of  mortgagee,  286. 

SURVIVORSHIP,  RIGHT  OF 

in  estates  in  entirety,  181-183. 
in  joint-tenancies,  177,  178. 

TABLES  OF  CHANCES  OF  LIFE,  54,  116. 

TACKING  OF  MORTGAGES,  262. 

TAIL,  ESTATES,  36-45.    See  Estates  Tail. 

TAX-TITLE,  631. 

its   validity,  532. 

judicial  sales  for  delinquent  taxes,  533. 

TENANCY  IN  COMMON.     See  Joint  Estates. 

TENANCY  AT  SUFFERANCE,   170-173. 
defined  and  explained,  170. 
incidents  of,  171. 
how  determined,  172. 
effect  of  forcible  entry,  173. 

TENANCY  IN  ENTIRETY.    See  Joint  Estates. 

TENANCY  IN  PARTNERSHIP.     See  Joint  Estates. 

TENANCY  AT  WILL  AND  FROM  YEAR  TOYEAR,  162-169. 
what  is  a  tenancy  at  will,  162. 
how  is  tenancy  at  will  determined,  163. 
tenancy  at  will  and  from  year  to  year  distinguished,  164. 
what  now  included  under  tenancies  at  will,  165. 
tenancy  at  will  arising  by  implication  of  law,  166. 

64  lOOJ) 


INDEX. 

[The  references  are  to  sections.] 

TENANCY  AT  WILL  AND  FROM  YEAR  TO  YEAR  — Cont:r>ued. 
qualities  of  tenancies  from  year  to  year,  167. 

what  notice  required  to  determine  tenancy  from  year  to  year,   168. 
how  notice  may  be  waived,  169. 

TENANCY  FOR  YEARS,  128-161.     See  Estates  foe  Yeaes. 

TENDER, 

of  mortgage  debt,  effect  upon  mortgage,  254. 

TENEMENTS, 

meaning  of  term,  6. 

TENENDUM, 

a  component  part  of  deed,  587-609. 

TENURE, 

what  is,  19. 

under  the  feudal  system,  20. 

in  the  United  States,  25. 

between  landlord  and  tenant,  130. 

between  tenant  of  particular  estate  and  reversioner,  170-53,  295. 

between  mortgagor  and  mortgagee,  247. 

between  remainderman  and  particular  tenant,   300. 

TERMS  FOR  YEARS.    See  Estates  foe  Yeabs. 

TESTAMENTARY  PROVISION, 
in  lieu  of  dower,   116-118. 

THREAD  OF  THE  STREAM,  489.    See  Filum  Aqu^. 

TIDE-WATER. 

boundary  line  in,  598-600. 

TITLE, 

general  classification,  469-470. 
by  purchase  and  by  descent,  469. 
original  and  derivative,  470. 

TITLE  BY  ACCRETION,  487-489. 
defined  and  explained,  487. 
alluvion,  488. 
filum  aqucB,  489. 

TITLE  BY  ADVERSE  POSSESSION,  490-502. 
effect  of  naked  possession,  490. 
seisin  and  disseisin  explained,  491. 
disseisin  and  dispossession  distinguished,  492. 
actual  or  constructive  possession,  493. 
1010 


INDEX. 

[The  references  are  to  sections.] 
TITLE  BY  ADVERSE  POSSESSION  —  Con«n««d. 

what  constitutes  actual  possessicm  —  must  be  visible  or  notorious, 

494,  495. 
must  be  distinct  and  exclusive,  496. 

hostile  and  adverse,  497. 
when  lawful  entry  is  converted  into  adverse  possession,  498. 
disseisor's  power  to  alien,  499. 
when  and  how  defeated,  500. 
when  and  how  made  absolute,  501. 
betterments,  502. 

TITLE  BY  DESCENT,  471-483. 
defined  and  explained,  471. 
what  law  governs,  472. 
consanguinity  and  affinity,  473. 
lineal  heirs,  474. 

how  degree  of  collateral  relationship  is  computed,  475. 
ancestral  property,  476. 
kindred  of  the  whole  and  half  blood,  477. 
advancement  —  hotchpot,   478. 
posthumous   children,  479. 
illegitimate  children,  480. 
alienage,  as  a  bar  to  inheritance,  481. 

TITLE  BY  DEVISE,  628-653. 

definition  and  historical  outline,  628. 

by  what  law  governed,  629. 

requisites  of  a  valid  will,  630. 

a  suiScient  writing,  631. 

what  signing  is  necessary,  632. 

proper  attestation,  633. 

who  are  competent  witnesses,  634. 

who  may  prepare  the  will  —  holographs,  635. 

what  property  may  be  devised,  636. 

a  competent  testator,  637. 

who  may  be  devisees  —  what  assent  necessary,  638. 

devisee,  incapacitated  by  murder  of  testator,  639. 

devise  and  devisee  clearly  defined  —  parol  evidence,  640. 

devises  to  charitable  uses,  641. 

lapsed   devises,   642. 

revocation  of  will,  643.  ^ 

joint  or  mutual  wills,  644.  ' 

by  destruction,  645. 
effect  of  alterations  of  will  after  execution,  646, 

by  marriage  and  birth  of  issue,  647. 

1011 


INDEX. 

[The  references  are  to  sections.] 
TITLE  BY  DEVISE  — Continued. 

by  alteration  or  exchange  of  property,  648. 
by  subsequent  will  or  codicil,  649. 
defective  will  confirmed  by  codicil,  650. 
probate  of  will,  651. 
agreements  as  to  testamentary  disposition  of  property,  652. 

TITLE  BY  EXECUTION,  529. 

TITLE  BY  GRANT,  519-549. 

title  by  public  grant,  519-522. 
title  by  involuntary  grant,  523-533. 
title  by  private  grant,  534-549. 

TITLE  BY  INVOLUNTARY  GRANT,  523-533. 
defined  and  explained,  523. 
scope  of  legislative  authority,  524.  ^ 

eminent  domain,  525. 
from  persons   under  disability,  526. 
confirming  defective  titles,  527. 
sales  by  administrators  and  executors,  528. 
sales  \inder  execution,  529. 
sales  by  decree  of  chancery,  530. 
tax  titles,  531. 
validity  of  tax  title,  532. 
judicial  sales  for  delinquent  taxes,  533. 

TITLE  BY  PRIVATE  GRANT,  534-549. 
defined  and  explained,  534. 

principal  features  and  classes  of  common  law  conveyances,  535. 
feoffment,  536. 
common  law  grant,  537. 
lease,  538. 
release,  539. 
confirmation,  539. 
surrender,  539. 

conveyances  under  statute  of  uses,  540-544. 
retrospection,  540. 
covenant  to  stand  seised,  541. 
bargain  and  sale,  542. 

future  estates  of  freehold  in  bargain  and  sale,  543. 
lease  and  release,  544. 

what  conveyances  now  judicially  recognized,  545. 
statutory  forms  of  conveyance,  546. 
quit-claim  deed,  547. 

dual  character  of  common  conveyances,  548. 
is  a  deed  necessary  to  convey  a  freehold,  549. 

1012 


INDEX. 

[The  references  are  to  sections.l 
TITLE  BY  PUBLIC  GRANT,  519-522. 
of  public  lands,  519. 
forms  of  public  grant,  520. 

relative  value  of  patent  and  certificate  of  entry^  621. 
pre-emption,  522. 

TITLE  BY  OCCUPANCY,  484^86. 
defined  and  explained,  484. 

condition  of  public  lands  in  United  States,  485. 
in  estates  per  auter  vie,  486. 

TITLE  BY  ORIGINAL  ACQUISITION,  484-518. 
title  by  occupancy,  484-486. 
title  by  accretion,  487-489. 
title  by  adverse  possession,  490-502. 
statute  of  limitations,  503-507. 
estoppel,  508-515. 
abandonment,  516-518. 

TORRENS  LAW.    See  Registration  of  Titles. 

TREES, 

ii  part  of  land,  2,  8. 

in  whom  is  title  to,  when  on  boundary-line,  8. 

rights  of  adjoining  owners  therein,  8.  » 

TRUSTS.     See  Uses  and  Trusts,  360-384. 
defined  and  explained,  360. 
active  and  passive,  361. 
executed  and  executory,  362. 
express,  363. 

implied,  resulting  and  constructive,  364. 
implied,   365. 

resulting,  in  general,  366. 
resulting  from  payment  of  consideration,  367. 
constructive,  368. 
interest  of  cestui  que  trust,  369. 
liability  for  debts  of  cestui  que  trust,  370. 
words  of  limitation,  371. 
remainders  in, —  their  destructibility,  372. 
how  created  and  transferred.  373. 
statute  of  frauds  in   relation  to,  374. 
how  affected  by  want  of  a  trustee.  375. 
removal  of  trustees,  376. 
refusal  of  trustee  to  serve,  377. 
survivorship  in  joint  trustees,   378. 
merger  of  interests,  379. 

1013 


INDEX. 

[The  references  are  to  sectiona.] 

TRUSTS  —  Continued. 

rights  and  powers  of  trustees,  380. 

powers  and  duties  of  oestuia  que  trust,  381. 

alienation  of  trust  estate,  382. 

liability  of  third  persons  for  performance  of  trust,  383. 

compensation  of  trustee,  384. 

UNDERLETTING, 

distinguished  from  assignment,  139. 
(see  subletting.) 

USER, 

a  mode  of  acquiring  an  easement,  429. 
(see  prescription.) 

USES  AND  TRUSTS, 

I.  Uses  before  the  statute  of  uses,  325-337. 

pre-statement,  323. 
origin  and  history  of  uses,  324. 
use  defined,  325. 
enforcement  of  the  use,  320. 
distinction  between  uses  and  trusts,  327. 
how  uses  may  be  created,  328. 
same  —  resulting  use,  329. 
same  —  by  simple  declarations,  330. 
who  might  be  feoflFees  to  use  and  cestuis  que  use,  331. 
incidents  of  uses,  332. 
»  what  might  be  conveyed  to  uses,  333. 

alienation  of  uses,   334. 

estates  capable  of  being  created  in  uses,  335. 
disposition  of  uses  by  will,  336. 
how  uses  may  be  lost  or  defeated,  337. 

II.  Uses  under  the  statute  of  uses,  338-349. 
history  of  the  statute  of  uses,  338. 
when  statute  will  operate,  339. 

a  person  seised  to  use  and  in  esse,  340. 

freehold  necessary,  341. 

use  upon  a  use,  342. 

feoffee  and  cestui  qve  use,  same  person,  343. 

a  use  in  esse,  344. 

cestui  que  use  in  esse,  345. 

words   of  creation  and  limitntini.   34(5. 

active  and  passive  uses  and  trusts,  347. 

uses  to  married  women,  348. 

cases  in  which  the  statute  will  operate,  349. 

1014 


INDEX. 

[The  references  are  to  sections.] 

USES  AND  TRV8TS  — Continued. 

III.  Contingent,  springing  and  shifting  uses,  350-359. 
future  uses,  350. 

contingent  future  uses,  how  supported,  361. 
importance  of  the  question,  352. 
solution  of  the  question,  353. 
contingent  uses,  354. 
springing  uses,  355. 
shifting  uses,  356. 

future  uses  in  chattel  interests,  357. 
shifting  and  springing  uses,  how  defeated,  368. 
incidents  of  springing  and  shifting  uses,  369. 
■IV.  Trusts,  360-384. 

defined  and  explained,  360, 

active  and  passive,  361. 

executed  and  executory,  362. 

express,   363. 

implied,  resulting  and  constructive,  364. 

implied,  365. 

resulting,  in  general,  366. 

resulting  from  payment  of  consideration,  367. 

constructive,  368. 

interest  of  cestui  que  trust,  369. 

liability  for  debts  of  cestui  que  trust,  370. 

words  of  limitation,  371. 

remainders  in, —  their  destructibility,  372. 

how  created  and  transferred,  373. 

statute  of  frauds  in  relation  to,  374. 

how  affected  by  want  of  a  trustee,  375. 

removal  of  trustees,  376. 

refusal  of  trustee  to  serve,  377. 

survivorship  in  joint  trustees,  378. 

merger  of  interests,  379. 

rights  and  powers  of  trustees,  380. 

rights  and  duties  of  cestuis  que  trust,  381. 

alienation  of  trust  estate,  382. 

liability  of  third  persons  for  performance  of  trust,  383. 

compensation  of  trustee,  384. 

VENDEE, 

when  occupying  land  under  contract  of  sale,  is  tenant  at  will,  166. 

VENDOR'S  LIEN,  217-219. 

1016 


INDEX. 

[The  references  are  to  sections.]- 

VENTRE  SA  MERE, 

child  in,  can  inherit,  673. 

\T:STED  estates,  26. 

VILLEINS,  23. 

VOLUNTARY  CONVEYANCES,  566. 

WAIVER, 

of  notice  by  tenant  from  year  to  year,  169. 

WARRANTY, 

covenant  of,  619-620. 

the  feudal,  621. 

special  covenants  of,  622. 

implied,  623. 

actions  on  covenants  of,  624,  147-626. 

runs  with  the  land,  625,  626. 

WASTE, 

definition  and  history  of,  60. 

what  acts   constitute,   61. 

in  respect  to  trees,  62. 

in  respect  to  mineral  and  other  deposits,  63. 

in  management  and  culture  of  land,  64. 

in  respect  to  buildings,  65 . 

by  acts  of  strangers,  66. 

by  destruction  of  buildings  by  fire,  67. 

exemption  from  liability  for,  68. 

remedies  for,  69. 

between  mortgagor  and  mortgagee,  264. 

WATER  COURSES, 

artificial  and  natural,  rights  in,  446,  447. 

WATER, 

casements  in  the  use  of,  445. 
what  right  of  property  in,  2. 

WAY, 

right  of,  437. 

private,  438. 

of  necessity,  439. 

who  must  repair  the,  439. 

public  or  high,  440. 

WIFE'S  SEPARATE  ESTATE,  71,  348. 

(see  estates  arising  out  of  marital  relation.) 
1016 


INDEX. 

[TJie  references  arc  to  sections.] 
WILD  LANDS, 
dower  in,  86. 

WILLS.    See  Devise,  or  Titlb  bt  DE>asE.    628-654. 

WITNESSES, 
to  deeds,  673. 
to  wills,  633. 

YEAR  TO  YEAR, 

tenancy  from,  162-169. 

See  Estates  at  Will  and  Fbom  Year  to  Year. 


1017 


'^      LOS  ANGELAS 


"J"~"EGONAL  UBRARV FAQUTY 


A     000  698  450 


